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Can a tort in violation of the “law of nations” be committed by an individual?

Yes! It seems to me that the answer to the question is an obvious one. Indeed, if one goes back to the torts that were considered violations of the “law of nations” in 1789, when the Alien Tort Statute was adopted as part of the Judiciary Act, all of them could be done by individuals. The Supreme Court in Sosa v. Alvarez-Machain (2004):

We think it is correct, then, to assume that the First Congress understood that the district courts would recognize private causes of  action for certain torts in violation of the law of nations, though we have found no basis to suspect Congress had any examples in mind beyond those torts corresponding to Blackstone’s three primary offenses: violation of safe conducts, infringement of the rights of ambassadors, and piracy.

All three of these examples are actions that can be undertaken by private individuals. Indeed, piracy– by definition– is something that does not involve state action. So, I was quite surprised when I read Judge Bates’s otherwise outstanding opinion in Al-Aulaqi v. Obama, the case involving a suit by the father of an American national who has been potentially selected for a targeted killing. In one section of the opinion, Judge Bates deals with a contention by the plaintiffs that the United States does not enjoy sovereign immunity due to the so-called Larson-Dugan exception. This exception allows suites seemingly against state officials to go forward when the official was acting so far outside his or her official capacity that the actions can be regarded as those of a private person. Bates explains:

Plaintiff’s argument that his ATS claim “may proceed under the ‘Larson-Dugan’ exception to sovereign immunity,” see Pl.’s Opp. at 41, merits little discussion. Under that exception — derived from the Supreme Court’s decisions in Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949), and Dugan v. Rank, 372 U.S. 609 (1963) — “sovereign immunity does not apply as a bar to suits alleging that an officer’s actions were unconstitutional or beyond statutory authority, on the grounds that ‘where the officer’s powers are limited by statute, his actions beyond those limitations are considered individual and not sovereign actions.’” Swan, 100 F.3d at 981 (quoting Larson, 337 U.S. at 689); see also Wash. Legal Found. v. U.S. Sentencing Comm’n, 89 F.3d 897, 901 (D.C. Cir. 1996). In other words, where an officer acts outside the bounds of his legal authority, he “‘is not doing the business which the sovereign has empowered him to do, or he is doing it in a way which the sovereign has forbidden,’” and hence the officer’s actions “‘may be made the object of specific relief.’” Wash. Legal Found., 89 F.3d at 901 (quoting Larson, 337 U.S. at 689).

So far, so good. But then Judge Bates seeks to apply this principle to the Alien Tort Statute:

Here, just as in Sanchez-Espinoza, the ATS is the statute that provides the basis for this Court’s jurisdiction, and the D.C. Circuit has held that the ATS only confers jurisdiction over actions that are authorized by the sovereign. See id. (explaining that “the law of nations — so called ‘customary international law,’ arising from ‘the customs and usages of civilized nations’ . . . does not reach private, non-state conduct“). Because it “would make a mockery of the doctrine of sovereign immunity” if the Larson-Dugan exception were interpreted as authorizing “federal courts . . . to sanction or enjoin . . . actions that are, concededly and as a jurisdictional necessity, official actions of the United States,” id. (emphasis in original), this Court rejects plaintiff’s contention that the Larson-Dugan exception applies to the conduct challenged in this case. (emphasis added)

How can the customary international law, and by extension, the ATS not reach “private, non-state conduct”?

In Sanchez-Espinoza, the D.C. Circuit case cited by Judge Bates, then-Judge Scalia, writing for the court, explained:

The Alien Tort Statute 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.” This obscure section of the Judiciary Act of 1789, ch. 20, Sec. 9, 1 Stat. 73, 77 (Judge Friendly has called it “a kind of legal Lohengrin; … no one seems to know whence it came,” ITT v. Vencap, Ltd., 519 F.2d 1001, 1015 (2d Cir.1975)) may conceivably have been meant to cover only private, nongovernmental acts that are contrary to treaty or the law of nations–the most prominent examples being piracy and assaults upon ambassadors. See Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 813-15 (D.C.Cir.1984) (Bork, J., concurring), cert. denied, — U.S. —-, 105 S.Ct. 1354, 84 L.Ed.2d 377 (1985). We are aware of no treaty that purports to make the activities at issue here unlawful when conducted by private individuals. As for the law of nations–so-called “customary international law,” arising from “the customs and usages of civilized nations,” The Paquete Habana, 175 U.S. 677, 700, 20 S.Ct. 290, 299, 44 L.Ed. 320 (1900)–we conclude that this also does not reach private, nonstate conduct of this sort for the reasons stated by Judge Edwards in Tel-Oren v. Libyan Arab Republic, 726 F.2d at 791-96 (Edwards, J., concurring); see also id. at 807 (Bork, J., concurring). Assuming, however, that the Alien Tort Statute covers state acts as well, then it embraces this suit only insofar as the federal appellees4 are sued in their official, as opposed to their personal, capacities–i.e., to the extent that appellants are seeking to hold them to account for, or to prevent them from implementing in the future, actions of the United States. It would make a mockery of the doctrine of sovereign immunity if federal courts were authorized to sanction or enjoin, by judgments nominally against present or former Executive officers, actions that are, concededly and as a jurisdictional necessity, official actions of the United States. Cf. Eminente v. Johnson, 361 F.2d 73 (D.C.Cir.),cert. denied, 385 U.S. 929, 87 S.Ct. 287, 17 L.Ed.2d 211 (1966). Such judgments would necessarily “interfere with the public administration,” Land v. Dollar, 330 U.S. 731, 738, 67 S.Ct. 1009, 1012, 91 L.Ed. 1209 (1947), or “restrain the government from acting, or … compel it to act,” Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 704, 69 S.Ct. 1457, 1468, 93 L.Ed. 1628 (1949). These consequences are tolerated when the officer’s action is unauthorized because contrary to statutory or constitutional prescription, see Malone v. Bowdoin, 369 U.S. 643, 647, 82 S.Ct. 980, 983, 8 L.Ed.2d 168 (1962), but we think that exception can have no application when the basis for jurisdiction requires action authorized by the sovereign as opposed to private wrongdoing.5 A waiver of sovereign immunity must therefore be found. Insofar as the claim for money damages is concerned, there is none. The Alien Tort Statute itself is not a waiver of sovereign immunity. Canadian Transport Co. v. United States, 663 F.2d 1081, 1092 (D.C.Cir.1980). (emphasis added)

OK– that makes sense. Scalia is assuming that the ATS applies to actions of private persons, but is simply arguing that international law– both in the form of treaties and custom– does not make  the “activities at issue” in this case torts in violation of the law of nations “when conducted by private individuals.” The activities at issue in Sanchez-Espinoza were efforts by the U.S. to provide assistance to the “Contras” in Nicaragua in the 1980′s. So what the D.C Circuit was arguing is that international law does not make the provision of weapons, etc. by private persons to rebel groups in a state a tort in violation of international law.

Judge Bates could have be similarly explicitly in this section of his opinion. I am certain that he did not intend to indicate that every tort in violation of the law of nations requires state action. In fact, earlier in the opinion he cited the language from Sosa about what the Supreme Court believed were torts in violation of the law of nations. Unfortunately, by using overly broad language in this one section of the opinion, he leaves the door open for significant misunderstandings about what constitutes a tort in violation of the law of nations. I believe this to be a simply oversight– but one worth noting so as to prevent its replication in future cases.

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Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.