Kevin Costner, 11th Circuit Judge (Mamani v. Berzain)

by Kevin Jon Heller

Against my better judgment, I read the 11th Circuit’s opinion in Mamani v. Berzain, the Bolivian ATS case.  I say against my better judgment because reading American judges on international law is kind of like listening to Kevin Costner play Robin Hood — you vaguely recognize the referent, but it is still painful to the ear.  It’s bad enough that American judges consistently get international law wrong, as evidenced by the woeful Talisman Energy decision about the mens rea of aiding and abetting.  But at least the Second Circuit tried to get the law right — it didn’t understand the international materials it cited, but at least it identified and addressed them.  The 11th Circuit, by contrast, makes the Second Circuit seem like Ian Brownlie.  It made no attempt at all to grapple with the international materials on crimes against humanity.  Indeed, reading the opinion, you would have no idea that any such materials exist: although the court says that “[t]o determine whether the applicable international law is sufficiently definite, we look to the context of the case before us and ask whether established international law had already defined defendants’ conduct as wrongful in that specific context (pp. 16-17), there is not a single citation in the entire decision to any international source.  No case.  No convention.  No UN report.  No international-law scholar.  Nothing.

Let me repeat that: in a decision that turns on whether international law is adequately definite for ATS purposes, the 11th Circuit did not feel it necessary to address even one source of that law.

Almost needless to say, having ignored international law completely, the 11th Circuit proceeds to conclude that international law is not sufficiently definite for the ATS.  Here is my favorite — in the sense of “most appalling” — example (pp. 16-17; emphasis added):

Nor have plaintiffs pleaded facts sufficient to state a claim for a crime against humanity pursuant to established international law. “[T]o the extent that crimes against humanity are recognized as violations of international law, they occur as a result of ‘widespread or systematic attack’ against civilian populations.” Aldana, 416 F.3d at 1247 (quoting Cabello, 402 F.3d at 1161).

The scope of what is, for example, widespread enough to be a crime against humanity is hard to know given the current state of the law.

Yeah, who knows what widespread means?  It’s not like there are dozens of decisions by international tribunals interpreting the contextual element of crimes against humanity or anything.  And, of course, no international-law scholar has ever written about the idea of a widespread attack.

I hate to say it, but perhaps it’s time for Congress to eliminate the ATS once and for all.  It would be a terrible thing for the U.S. to not have the statute.  But it is even worse to offer hope to those who have been wronged and then dash that hope — again and again — on the rocks of judicial ignorance.

10 Responses

  1. I also particularly love the citation the 11th Circuit offers for the widespread and systematic requirement — a quote from a second US decision quoting a third US decision.  The perfect metonym for the American approach to international law.

    This is great, as well — “to the extent that crimes against humanity are recognized as violations of international law.”  What year is it?  1946?

  2. Kevin, your spoof of the appellate rulings was quite funny.

  3. Response…
    It is sad that most federal judges (and state court judges) hae never taken a course in international law — and they go about proving it!
    One should also realize that some judges are ideologically opposed to international law, especially as law of the United States — and so are a few of our radical revisionist professors (that you might have met on this blog)!
    Among the worst are Judge Janice Brown and Judge Kavanaugh — both Bush appointees (and Kavanaugh was in the White House during Bush’s admitted “program” of secret detention (a crime against humanity and war crime) and tough interrogation tactics (torture, cruel, inhuman, and degrading treatment).
    Who said 9/11 left few consequences in our domestic legal process?

  4. Isn’t it fantastic, international law has been slowly creeping its way into popular discourse on every level and now even American jurists are beginning to tackle it. Give them some time to grapple with the realization that they are not the centre of the universe … but this is a great beginning, we have to start somewhere.

  5. Kevin, I think this illustrates an interesting and to my knowledge little explored topic – when should certain law not be given for certain institutions to apply, because it is beyond what they can handle without making a mess of it, and – while we’re at it – when should certain law not be created at all because it is too complicated/delicate for anyone to apply without making a mess of it? One might argue that customary international law, jus cogens and joint criminal enterprise are candidates for one or the other of these categories.

  6. I did a quick lexis search for US law review articles with “crimes against humanity” in the title.  Got 82 responses.  Searching for “crimes against humanity” in the body of law review articles returned the dreaded “More than 3000 Results!” error. So it’s not like they couldn’t have figured this out.

  7. Response…
    And what is somewhat amazing in terms of U.S. judicial power is that the judge can take “judicial notice” of the law (e.g, have the judge’s cleark(s) find it for her/him); but in the real world, because most judges in the U.S. have never taken an international law course, you have to brief the judge on the law, which is wise in any event.  The problem for some attorneys is prediciting what exactly the judge(s) will “go off on,” what to brief in advance, assuming that one even has an opportunity to offer a brief.
    I remember Richard Lillich speaking at an ASIL meeting many years ago that it is too dangerous to allow so many cases to proceed on human rights claims, that there should be more control over litigaton.  But you can’t control who will sue for what, where, and when if you are a human rights strategist.  And then, once the suit is started, you may not even have time to submit an amicus brief.

  8. More amusing is that I would assume the United States’ position is that the term “crimes against humanity” is sufficiently definite for criminal prosecution under customary international law, but I guess for civil liability it’s different . . .

  9. Well, Sanchez Berzain’s co-Ministers were convicted in Bolivia for committing Genocide under the same facts…

  10. I fear that this is just the latest in a long line of ATS decisions fundamentally failing to understand what constitutes customary international law. My views of the ineffectiveness of this statute aside, I find it alarming that US federal judges feel that a selective survey of a few international courts can constitute a “consistency of state practice” sufficient to satisfy the stringent requirements of customary international law generally and the ATS (post Sosa) specifically. Further, I think it is extremely dangerous to rely on decisions of the ICTY and ICTR as primary sources of customary international law: they are not. Just because they are mandated to apply CIL does not mean that they always do. You just have to look at JCE.  It is my view that the proper remit of CIL is being distorted beyond recognition in order to make it “fit” within a statute that could do with significant amendment if not repeal.

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