Saturday, May 17, 2014

Kadic v. Karadzic case brief summary

Kadic v. Karadzic:
1.      Facts: Ps suing D, the leader of the Bosnian Serb republic, for war crimes, genocide, rape, and torture under the Alien Tort Act. Lower Court dismissed for lack of subject matter jurisdiction b/c the Ps failed to allege/prove a violation of customary int’l law b/c D had to have been an agent of a recognized State
2.      Alien Tort Claims Act: District Courts shall have jurisdiction over any civil action filed by an alien for a tort only that was committed in violation of the law of nations (customary int’l law) or treaty of the US
i)        A State cannot be sued b/c of foreign sovereign immunity—therefore a claim can only be brought against a State Actor/agent of the State
3.      Issue: Was the D an agent of a State? Do you need to be an agent of a State to violate the law of nations (customary int’l law)?
4.      Holding:(2nd Cir) You must separate what is being alleged—you don’t have to be a State actor to violate the customary int’l law for genocide and war crimes, but you must be a State actor to be subject to allegation of torture BUT Court finds that Republic was enough of a State where officials had duties under int’l law (don’t have be a State recognized by other StatesàRestatement: to be a State requires the ability to engage in int’l law, but not that the State is recognized); thus D could be found as violating int’l law against torture if Republic had the requirements to be a (unrecognized) State
i)        Private Individuals can be liable for genocide
ii)      Agent of a party to a conflict (int’l or non-int’l armed conflict) can be liable for war crimes
iii)    Must be an agent of State (or an unrecognized State) to be liable for torture b/c torture/murder are divides b/w State (domestic) and Int’l Law
a)      D would be liable for Torture if Ps could prove that Bosnian Serb Republic was a State or that D was an agent of Serbia
b)      The kind of “State” required to be liable for torture doesn’t have to be full state—if normative criteria are met
5.      Sources for Court’s Holding:
i)        Genocideàa lot of good evidence of custom that private individuals can be subject to violation of genocide
a)      Genocide Convention—evidence of customary law
b)      General Assembly Restatement
ii)      War Crimes
a)      Common Article 3 of Geneva Convention
b)      First Protocol
iii)    Torture
a)      Torture Victim Act
b)      US Law
c)      Convention against torture

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