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Peter Henner

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Peter is involved in international human rights issues because he still believes that we can achieve a world governed by the rule of law, where international human rights violations can be prosecuted anywhere in the world.  His book, Human Rights and the Alien Tort Statute: Law History and Analysis, was published by the American Bar Association in 2009. 

The horrors of World War II created a consensus among the nations of the world that the relationship between a government and its citizens is a matter of international concern, and that organizations such as the United Nations were needed to provide a permanent venue to address international problems and concerns without resorting to war.  The Holocaust and other atrocities committed by supposedly "civilized" counties demonstrated that genocide and crimes against humanity affected the entire world.  The unprecedented number of casualties from war crimes, including the bombing of civilian populations, were also plainly a matter of international concern.  It is no longer acceptable for brutal and repressive governments to murder their own citizens, torture them, or take other actions that are deemed to violate an international consensus of minimum acceptable standards of conduct.  International law, as embedded in the International Declaration of Human Rights and International Covenant on Civil and Political Rights, now addresses the relationship between a country and its citizens.

In 1980, in the case of Filartiga v. Pena-Irala, a Paraguayan police captain was found liable for torturing and killing the 17-year-old son of a political opponent of dictator Alfredo Stroessner.  Judge Irving Kaufman famously declared that "the torturer has become like a pirate and slave trader before him hostis humani generis, an enemy of all mankind."  The court established three important principles:

1. United States courts have jurisdiction under an obscure 18th century statute, the Alien Tort Statute, to adjudicate violations of international law, even though neither of the parties are United States citizens.

2. International law is continually changing.  A court must apply contemporary international law to claims brought under the Alien Tort Statute.

3. Customary international law prohibits a government from torturing its own citizens.

In 2004, the Supreme Court upheld the basic holdings of Filartiga in Sosa v. Alvarez-Machain.  It is now clear that human rights cases alleging a violation of international law can be prosecuted in United States courts.  The nations of the world will continue to reach consensus on norms of internationally accepted conduct and these norms can be enforced in United States courts. 

Since Filartiga, there have been hundreds of cases brought in United States courts, alleging violations of international law.  Cases under the Alien Tort Statute have alleged violations of international human rights on every inhabited continent, and for a wide range of activities: Nazi-era atrocities, ethnic cleansing and genocide, suppression of religious groups, war crimes committed with the approval of governments, terrorism, and torture and extrajudicial killing by the agents of brutal dictatorship.  In addition, there is a growing consensus that other types of misconduct by governmental actors, such as state sponsored discrimination on the basis of race, gender, and possibly even religion, may also violate international law.  Similarly, expropriation of property by governmental actors without compensation, forced exile, and involuntary medical experimentation have also been found to violate international law.

Cases brought against government actors are frequently barred by immunity doctrines.  For example, a case brought against Robert Mugabe, the virtual dictator of Zimbabwe, was dismissed because, as a sitting head of state, he was entitled to a common law immunity from civil litigation.  Israeli governmental officials have been found to be immune for alleged war crimes in Lebanon and Gaza because the alleged actions were part of official governmental policies.  Similarly, U.S. officials, including Henry Kissinger, have been entitled to immunity for alleged violations of international law in Chile and Latin America.

In a 1995 case, Kadic v. Karadzic, the Second Circuit held that Radovan Karadzic, the self-styled President of the Republic of Serbia, could be sued as an individual for his involvement in the atrocities in Bosnia even though he was not acting as a governmental official.  This case was very important because it established the principle that private individuals and, by implication, other non-governmental actors such as corporations, could be found liable for violating international law.  Kadic opened the door to lawsuits against multinational corporations for committing human rights abuses and for aiding and abetting such abuses by governments. 

Kadic enabled a new wave of cases under the Alien Tort Statute, particularly against oil and mining companies for assisting brutal governmental repression.  In the most successful case, Unocal paid a settlement, reportedly in the amount of $30 million, for its actions in constructing a pipeline through Myanmar, because the Myanmar military committed gross human rights violations. In South African Apartheid Litigation, a case that is being actively litigated in the Southern District of New York, plaintiffs are seeking to hold a group of multinational corporations liable for aiding and abetting the apartheid policies of the former Union of South Africa. 

Litigation involving international human rights frequently and necessarily involves political questions.  Cases may challenge the policies and politics of controversial regimes, and oppose the activities of private organizations, including multinational corporations, that do business in those countries.  Oil and mining companies may be only concerned with turning a profit, but  when they ally with a repressive government, they will necessarily be implicated in the politics of the country.  The tension between alleged human rights abuses and political questions is perhaps clearest in the Middle East, where Arab states, Palestinian organizations and the State of Israel have all been accused of violating international law.  Furthermore, many countries that were supported by the United States, such as the right wing governments in South and Central America during the 1970s and 1980s, have also been accused of international law violations.  Human rights cases involving the governments of countries such as Colombia today or Chile under the Pinochet regime, may impact United States policies.

The international "rule of law" means that liability for human rights violations should be determined by generally recognized norms of law with the relevant facts determined by evidentary proceedings, not on the bases of political allegiances or military force.  For example, it should be an absolute that the killing of unarmed civilians as part of an effort to terrorize the population violates international law, regardless of whether it is done by a suicide bomber or whether it is done by a bombing raid by an organized air force.  Government expropriation of property for ethnic cleansing campaigns should never be tolerated.  Torture of prisoners is also clearly proscribed, whether performed by rogue governments, rebel militia, or by the United States at Guantanamo or Abu Gharib.

Other international law norms are also emerging.  Government sponsored discrimination on the basis of race or gender, which until very recently was generally accepted by many governments, now arguably violates international law.  Although United States courts have held that international law, as of 2011, does not recognize a right to a clean and safe environment, it is to be hoped that international law will evolve and will recognize a right to a healthy environment in the future.

Peter believes that establishing universal standards of international law and the mechanisms to enforce these standards will provide the best hope for world peace, for a world committed to justice, human rights and dignity, and for a fair opportunity for every person to develop their full potential as human beings.  International law should not only proscribe governments from torturing and killing its own citizens; it should also prohibit discrimination on the basis of race, nationality, gender or religion, and should be expanded to guarantee every human being certain rights, including the right to life, liberty and the pursuit of happiness.  He believes that international institutions, such as the International Criminal Court, and other evolving judicial fora should be strengthened, their jurisdiction widened, and that they should be given broader latitude to enforce their decisions. 

As a United States lawyer, Peter would like to see courts in the United States exercise their jurisdiction over international law claims and provide a forum for cases brought to redress atrocities committed in violation of international law anywhere in the world.  United States courts, by accepting this role, will best fulfill the noble principles upon which the United States was originally founded more than two centuries ago. The April 2013 decision of the United States Supreme Court in Kiobel v. Royal Dutch Petroleum  sharply limits the possibility of using the Alien Tort State as a jurisdictional basis for violations of international law, but Peter believes that it is essential that advocates for human rights develop other and new legal strategies to make United States courts address violations of international law. 

© 2011 Law office of Peter Henner