New challenges for the American lawyer in international human rights

Washington and Lee Law Review, Summer 1998 by Karamanian, Susan L

Customary international law that does not rise to the esteem level of jus cogens, nevertheless, also is founded on principles of the public good. Customary international law arises from "a general and consistent practice of states followed by them from a sense of legal obligation."'2 It is "international custom, as evidence of a general practice accepted as law."' In ascertaining and administering customary international law, courts resort "to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators."24 International law is to be interpreted as it has evolved and as it exists among the nations of the world today.25 Prime evidence of the customs and usages of civilized nations are human rights treaties and resolutions.26 Foremost among these are the United Nations Charter2' and the Universal Declaration of Human Rights of 1948.Zs The Charter, which "heralded also the birth of international human rights,"29 and which in large part was written by lawyers, provides in article 1, paragraph 3 that the United Nations is "[t]o achieve international cooperation .

. . in promoting and encouraging respect for human rights and for fundamental freedoms for all."3" Article 55(c) provides for "universal respect for, and observance of, human rights and fundamental freedoms for all."3' The Universal Declaration is "the first comprehensive statement enumerating the basic rights of the individual to be promulgated by a universal international organization."32 It proclaims, among other things, that all human beings (1) "are born free and equal in dignity and rights;"33 (2) have civil and political rights, including the right to life, liberty, and security of person, the prohibition against slavery, torture, and cruel, inhuman, or degrading treatment, the right to be free from arbitrary arrest, detention, or exile, and the right to privacy, freedom of speech, religion, and assembly;34 and (3) have economic, social, and cultural rights, including the right to work and to an education.35 Federal courts frequently cite both the UN. Charter and the Universal Declaration in defining the law of nations.36 They also have cited the American Convention on Human Rights,3' the International Covenant on Civil and Political Rights,38 the Convention for the Protection of Human Rights and Fundamental Freedoms,39 and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment4 for the conclusion that the prohibition against official torture is a norm of customary international law.4' Federal courts have adopted a similar analysis of the Convention on the Prevention and Punishment of the Crime of GenocideU for the proposition that "the proscription of genocide has applied equally to state and nonstate actors."43 Indeed, "through their repeated reference to the Charter and the Universal Declaration" and other conventions, courts in the United States and abroad have contributed "to the incremental formation of a practice that has now ripened into customary law of international human rights."' B. Lawyers Promoting the Public Good Lawyers who represent clients before tribunals seeking relief for violations of customary international law, or who otherwise participate in support of amici curiae or as expert witnesses, are promoting the public good. The same holds true for lawyers who prudently urge the tribunal to follow international human rights law in construing the Constitution or statutes of the United States. Lawyers seek to enforce established norms that reflect fundamental values of the international community in each of these instances. Without enforcement of these universally-recognized rights, the law of human rights merely would be a set of principles without much consequence.45 The seminal case in the United States federal courts, Filartiga v. PenaIrala,46 exemplifies this point. In Filartiga, the plaintiffs, two citizens of Paraguay, sued a Paraguayan official for torturing their son/brother.47 They alleged jurisdiction under the Alien Tort Claims Act,4" which provides that "[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States."49 The plaintiffs claimed that torture violated the "law of nations," or established norms of the international law of human rights.5 The district court dismissed the case because the "law of nations" did not concern acts of a Paraguayan official against another Paraguayan citizen.5' In reversing the district court's dismissal, the Second Circuit analyzed various sources of customary international law"2 and concluded that "official torture is now prohibited by the law of nations. The prohibition is clear and unambiguous, and admits of no distinction between treatment of aliens and citizens."53 Judge Kaufman, writing for the panel, also noted that "international law confers fundamental rights upon all people vis-a-vis their own governments."54 While Judge Kaufman's detailed examination of the sources of international law and the conclusions he reached based on his examination have proven to be of lasting importance, his concluding paragraph of the opinion is equally compelling. In particular, Judge Kaufman noted that after World War II, civilized nations "banded together to prescribe acceptable norms of international behavior . . . to recognize that respect for fundamental human rights is in their individual and collective interest."55 The torturer, like the pirate and slave trader before him, had become "hostis humani generis, an enemy of all mankind."56 Filartiga opened the doors of the United States courthouses to other alien tort claims based on violations of the "law of nations." After Filartiga, federal courts have concluded that torture, murder, genocide, and slavery violate jus cogens norms of the international community.57 Those who commit these intolerable, inhumane acts are now recognized as the "enemy of all mankind." Lawyers are indispensable tojudicial enforcement of international human rights. In claims under the Alien Tort Claims Act, for example, American lawyers have served as counsel to various foreign plaintiffs. Many of the plaintiffs' attorneys are affiliated with groups such as the Center for Constitutional Rights and International Human Rights Clinic, which are committed to promoting international human rights. Lawyers also have served as counsel for amici curiae, including leading nongovernmental human rights organizations such as Amnesty International, the International League for Human Rights, the Lawyers' Committee for International Human Rights, the International Human Rights Law Groups, and Human Rights Watch. These groups have been at the forefront of the legal effort to implement human rights standards and "in marshaling public opinion against human rights abuses."58 Not to be forgotten are the lawyers for the United States government. In Filartiga, then-Assistant Attorney General Drew Days submitted an amicus curiae brief on behalf of the United States that confirmed "the universal abhorrence with which torture is viewed."59 Kadic v. Karadzic involved claims of torture, summary execution, acts of genocide, and war crimes under the Alien Tort Claims Act and the Torture Victim Protection Act of 1991 against Radovan Karadzic, the self-proclaimed president of an unrecognized Bosnian-Serb entity.6' The Legal Adviser to the United States Department of State and the United States Solicitor General submitted a "Statement of Interest" that "expressly disclaimed any concern that the political question doctrine should be invoked to prevent the litigation of these lawsuits."62