Justice America - Human Rights & War

Alleged torturers of other states acting under the color or official authority can be tried in US courts if they are found and served within the United States. The Filartiga court held that “deliberate torture perpetrated under the color of official authority violates universally accepted norms of the international law of human rights, regardless of the nationality of the parties.” The ATCA recognizes that certain crimes, such as the crime of torture, have been recognized as a violation of the principles of international law.

Based on custom, these crimes have been universally renounced and are now a part of US common law. Thus, Iraqi officials can be tried in the US if they step foot on US soil based on the ATCA. US citizens who were tortured abroad could recover under the TVPA. This act was intended to provide a remedy to US citizens who are victims of torture abroad. However, this act, like the ATCA requires a defendant to have had minimum contacts in the United States.

The US cannot exercise jurisdiction unless the alleged perpetrator is acting as a state official or under the color of state doctrine, as described in the Filartiga, Forti and Kadic line of cases. Additionally, the United States could not exercise jurisdiction over the state of Iraq for its violations of international law, only individual perpetrators. This is because under the FSIA, the US cannot sue a state under the principle of sovereign immunity. This principle recognizes that one state cannot sit in judgment of another state.

The US could sue state actors, as was discussed in the Pinochet litigation, because sovereign immunity does not apply to those who commit torture while acting as a state official or under the color of state because the obligation not to commit torture is so strong that it overrides any argument in favor of immunity.

Those liable for the acts of torture, war crimes and genocide in Iraq would be held liable for their actions.
The ATCA and the TVPA only provides a civil remedy for victims of torture and crimes against humanity. All Iraqi officials and those acting under the color of state would be potential defendants in a suit in the US if the Court retained jurisdiction by applying the above stated principles.

Additionally, the United States may be able to try Abu Abba, under Article 5© of the Torture Convention, which allows criminal liability in the US for offences in which the victim is a national of the US. This jurisdiction is called universal jurisdiction. The US has ratified the Torture Convention, giving courts jurisdiction for torture when the alleged offender is present in the US, regardless of the nationality of the victim or the alleged offender. However, this statute is in conflict with the Geneva Civilian Convention under Art. 49 and the Israeli-Palistinian Agreement.

The US is probably not bound by the Israeli-Palestinian Agreement, as the US did was not a signatory. In order for the US to try Abu Abba in the US, the Torture Convention Enabling Statute would have to not be in conflict with the Geneva Civilian Convention.



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