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GAMBIA-L  January 2004

GAMBIA-L January 2004

Subject:

Legal Action against Yaya Jammeh

From:

Koch Barma <[log in to unmask]>

Reply-To:

The Gambia and related-issues mailing list <[log in to unmask]>

Date:

Sun, 11 Jan 2004 19:18:49 -0800

Content-Type:

text/plain

Parts/Attachments:

Parts/Attachments

text/plain (163 lines)


I visited the Library of Congress and ran into a gold mine of info
regarding this ATCA and the Torture Victim Prevention Act...Gambian
victims of the Kafkaesque government should get ready and start
filing lawsuits against Yaya Jammeh and his administration.  I would
suggest  that the lawsuits be initiated in New York so that the local
courts can attach the foreign exchange reserves of the Gambian
Central Bank....the sky is the limit.

Ebou
___________________

Alien Tort Claims Act of USA

Recently, American courts have begun adjudicating civil liability for
human rights violations (especially torture) committed in another
country, under the Alien Tort Claims Act (28 U.S.C. §1350) and the
Torture Victim Prevention Act (28 U.S.C. §1350).
The US Second Circuit Court of Appeal said the following in a
Judgment delivered in September 2000[i] about application of these
two Acts:

“The Alien Tort Claims Act (ACTA) was adopted in 1789 as part of the
original Judiciary Act. In its original form, it made no assertion
about legal rights; it simply asserted 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…” For almost two centuries, the statute lay
relatively dormant, supporting jurisdiction in only a handful of
cases [ii]. As the result of increasing international concern with
human rights issues, however, litigants have recently begun to seek
redress more frequently under the ATCA [iii].
These suits produced several important decisions interpreting the
meaning and scope of the 1789 Act. For example, in Filartiga v.
Pena-Irala, this court held that deliberate torture perpetrated under
the color of official authority violates universally accepted norms
of international human rights law, and that such a violation of
international law constitutes a violation of the domestic law of the
United States, giving rise to a claim under the ATCA whenever the
perpetrator is properly served within the borders of the United
States. More recently, we held in Kadic v. Karadzic, that the ATCA
reaches the conduct of private parties provided that their conduct is
undertaken under the color of state authority or violates a norm of
international law that is recognized as extending to the conduct of
private parties.
In passing the Torture Victim Prevention Act [TVPA], Congress
expressly ratified our holding in Filartiga that the United States
courts have jurisdiction over suits by aliens alleging torture under
color of law of a foreign nation, and carried it significantly
further. While the 1789 Act expressed itself in terms of a grant of
jurisdiction to the district courts, the 1991 Act:
(a)   makes clear that it creates liability under U.S. law where
under “color of law, of any foreign nation” an individual is subject
to torture or “extra judicial killing,” and
(b)  extends its remedy not only to aliens but to any “individual,”
thus covering citizens of the United States as well. The TVPA thus
recognizes explicitly what was perhaps implicit in the Act of 1789 –
that the law of nations is incorporated into the law of the United
States and that a violation of the international law of human rights
(at least with regard to torture) is ipso facto a violation of U.S.
domestic law.
Whatever may have been the case prior to passage of the TVPA, we
believe plaintiffs make a strong argument in contending that the
present law, in addition to merely permitting U.S. District Courts to
entertain suits alleging violation of the law of nations, expresses a
policy favoring receptivity by our courts to such suits. Two changes
of statutory wording seem to indicate such an intention. First is the
change from addressing the courts’ “jurisdiction” to addressing
substantive rights; second is the change from the ATCA’s description
of the claim as one for “tort... committed in violation of the law of
nations...” to the new Act’s assertion of the substantive right to
damages under U.S. law. This evolution of statutory language seems to
represent a more direct recognition that the interests of the United
States are involved in the eradication of torture committed under
color of law in foreign nations.
One of the difficulties that confront victims of torture under color
of a nation’s law is the enormous difficulty of bringing suits to
vindicate such abuses. Most likely, the victims cannot sue in the
place where the torture occurred. Indeed, in many instances, the
victim would be endangered merely by returning to that place. It is
not easy to bring such suits in the courts of another nation. Courts
are often inhospitable. Such suits are generally time consuming,
burdensome, and difficult to administer. In addition, because they
assert outrageous conduct on the part of another nation, such suits
may embarrass the government of the nation in whose courts they are
brought. Finally, because characteristically neither the plaintiffs
nor the defendants are ostensibly either protected or governed by the
domestic law of the forum nation, courts often regard such suits as
“not our business.”
The new formulations of the Torture Victim Protection Act convey the
message that torture committed under color of law of a foreign nation
in violation of international law is “our business,” as such conduct
not only violates the standards of international law but also as a
consequence violates our domestic law. In the legislative history of
the TVPA, Congress noted that universal condemnation of human rights
abuses “provide[s] scant comfort” to the numerous victims of gross
violations if they are without a forum to remedy the wrong. This
passage supports plaintiffs’ contention that in passing the Torture
Victim Prevention Act, Congress has expressed a policy of U.S. law
favoring the adjudication of such suits in U.S. courts. If in cases
of torture in violation of international law our courts exercise
their jurisdiction conferred by the 1789 Act only for as long as it
takes to dismiss the case for forum non-conveniens, we will have done
little to enforce the standards of the law of nations.


[i] That case involved civil suits brought against international
Shell Oil Company for the executions of several Nigerians, including
prominent author Ken Saro Wiwa, arising out of disputes over the
development of oil resources in the homeland of the Ogoni people.
Plaintiffs alleged that, although the government of Nigeria tortured
and executed the claimants and their decedents, these abuses were
“instigated, orchestrated, planned, and facilitated by Shell Nigeria
under the direction of the defendants,” who were said to have
“provided money, weapons, and logistical support to the Nigerian
military, participated in the fabrication of murder charges, and
bribed witnesses to give testimony.” After finding personal
jurisdiction, the court turned to the defendants’ argument that the
case should be pursued in England because of forum non-conveniens.
The plaintiffs asserted that in addition to the ATCA, the 1991
passage of the Torture Victim Prevention Act, 28 U.S.C. §1350 App,
argued for keeping the cases in the United States. The court held
that defendants’ showing was inadequate and rejected the defense of
forum non-conveniens.
[ii] See, e.g., Filartiga v. Pena-Irala, 630 F.2d 876, 887 & n. 21
(2d Cir.1980) (identifying only two previous cases that had relied
upon the ATCA for jurisdiction).
[iii] See, e.g., Abebe-Jira v. Negewo, 72 F.3d 844 (11th Cir.1996)
(alleging torture of Ethiopian prisoners); Kadic v. Karadzic, 70 F.3d
232 (2d Cir.1995) (alleging torture, rape, and other abuses
orchestrated by Serbian military leader); In re Estate of Ferdinand
Marcos, 25 F.3d 1467 (9th Cir.1994) (alleging torture and other
abuses by former President of Phillippines); Tel-Oren v. Libyan Arab
Republic, 726 F.2d 774 (D.C.Cir.1984) (alleging claims against Libya
based on armed attack upon civilian bus in Israel); Filartiga, 630
F.2d 876 (alleging torture by Paraguayan officials); Xuncax v.
Gramajo, 886 F.Supp. 162 (D.Mass.1995) (alleging abuses by Guatemalan
military forces).

Related Stories:
1. Torture in Sri Lanka
2. Torture: Sri Lanka's 20 Year Record
3. Amnesty Continues to Report... Sri Lanka Continues to Torture...
4. Google Search - 22,000 documents on the web




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