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