The seminar explores the legal processes of responding to international wrongs, both recent and historical, by providing monetary compensation and other non-penal remedies. The goal of the seminar will be to examine the emerging civil liability, both national and international, for atrocities, and to assess the doctrines that support and impede liability. No international law background is required.
The topic begins with US law and the Alien Tort Statute (1789), a law that for three decades after 1980 seemed to offer a way to secure compensation for grave international wrongs wherever they occurred. Specific topics include 1) the Framers, 2) the ATSâs revival in the Filartiga torture case (1980), 3) the Supreme Court's rulings in Alvarez-Machain v. Sosa (2004), 4) the 200 suits against multinational corporations, often in the extractive industries, for acts overseas, 5) the future of the ATS after Kiobel v. Royal Dutch Shell (2013), which narrowed but did not end litigation, and 6) ATS and related suits in Europe as well as the US relating to the war on terrorism. We examine other theories (e.g. Federal Tort Claims Act and Bivens actions, contract ineligibility, injunctive relief, FOIA, state law, disbarment) applicable to federal officials and private contractors. For foreign offenders, we study suits in the US against officials and governments under the Foreign Sovereign Immunities Act and anti-terrorism statutes, in other nations (e.g. Britain, Netherlands), and in international fora under emerging law like Lubanga (ICC) and Germany v. Italy & Greece (ICJ). We examine doctrinal defenses (e.g. state secrets, political question, contractor immunity, pleading specificity, forum non conveniens, comity, statute of limitations, personal & subject jurisdiction, and official & sovereign immunity), and explore the balance between traditional immunity and newer liability for reparations.
To put this heavily American law in context, the seminar examines the history of how reparations grew from a traditional practice between nations after war (e.g. Versailles Treaty) and for episodic violations to become, after World War II, a key response to systemic human rights abuses offering compensation, disclosure, and structural reform. In the US, that includes campaigns by Japanese Americans, Native Americans, and African Americans. We examine campaigns for foreign wrongs in US, regional, and foreign courts against Germany, Austria, and Switzerland for Nazi crimes, USSR and South Africa, former colonial powers, post-colonial regimes for nationalizations, Japan and South Korea for sexual slavery, reunified Germany, former communist East Europe, and Latin American dictatorships. We explore restitution of cultural property taken or destroyed in war, coup, or revolution, whether looted or purchased (USSR and Nazi takings, the Rosetta Stone by treaty, Machu Picchu by sale) and the new scrutiny of buyers, museums, and dealers. We examine campaigns against non-governmental religious bodies for sexual abuse and the UN for peacekeepersâ offenses in Cambodia, Haiti, former Yugoslavia, and elsewhere. Looking at monetary compensation, restitution, and other tools like truth commissions, apologies, and structural reform, the seminar aims to assess the need for and challenges to accountability, current legal understandings of âbest practices,â the role â given the limits of the criminal law â of the growing theory of human rights reparations, and its intersection with the uniquely American ATS, FTCA, FSIA, and related legal doctrines.
Class participation and a paper is required. Students may substitute two short papers for one long paper. Major Writing Credit is available after consultation with the instructor. Students have occasionally tied their respective term papers to ongoing litigation and a few students have even worked with outside litigators, but this is rare, and papers relying on theoretical, policy-oriented, or other approaches are normal.