Hanoch Tel-Oren, et al., v. Libyan Arab Republic, et al.
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||United States District Court for the District of Columbia, United States
||Memorandum Opinion and Order
||30 June 1981
- Hanoch Tel-Oren, and others
- Libyan Arab Republic
- Palestine Liberation Organization
- Palestine Information Office
- National Association of Arab Americans
- Palestine Congress of North America
||torture, universal jurisdiction
|Other countries involved
After the ‘Coastal Road Massacre’ of 11 March 1978 in Israel, the injured victims of the attack and relatives of the deceased attempted to take legal action in the United States against several non-state organisations and Libya, which they considered responsible for the attack and which they considered guilty of torture.
The District Court did not assess the merits, as the Court held, most importantly, that the relevant provisions of international law did not provide the plaintiffs with the possibility to take legal action. In several parts of the opinion, the Court clearly stated its opinion that it is not up to the federal courts to judge on claims arising under international law, unless an international legal provision grants a private right to sue. A federal court should not be a substitute for an international tribunal and the judiciary should not interfere with foreign affairs and international relations, according to the Court.
Also, the Court held that too much time had passed since the attack to take the matter to court. Thus, the plaintiffs’ action was dismissed.
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Two civil actions were filed against the Libyan Arab Republic (Libya), the Palestine Liberation Organization (PLO), the Palestine Information Office (PIO), the National Association of Arab Americans (NAAA) and the Palestine Congress of North America (PCNA). A suit was filed for compensatory and punitive damages by personal representatives of twenty-nine persons who died in the attack (Civil Action No. 81-0563) and by persons injured during the attack (Civil Action No. 81-0564). In their complaints, the plaintiffs alleged that the defendants were responsible for multiple tortuous acts in violation of the law of nations, treaties of the US and criminal laws of the US, as well as the common law. The District Court dismissed the action both for lack of subject matter jurisdiction and as barred by the applicable statute of limitations.
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The plaintiffs appealed to the District Court’s ruling, thereby deciding not to pursue their claim against the PCNA. The three judges of the Appellate Panel confirmed the dismissal of plaintiffs’ actions, although the three judges brought forward different reasons for this dismissal.
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Legally relevant facts
On 11 March 1978, 13 heavily armed members of the PLO landed by boat in Israel and seized a civilian bus, a taxi, a passing car, and later a second civilian bus. They took men, women and children hostage. For several hours members of the PLO raced down the highway torturing passengers in the bus and shooting anyone in sight. When the Israeli police had stopped the massacre, the death toll was at 37 casualties. Moreover, 76 people were wounded. This attack was considered, at that time, to be ‘the worst terrorist attack in Israel’s history. Most of the victims were Israeli citizens; a few were American and Dutch citizens. They turned to the District Court in the United States for legal redress.
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Core legal questions
The plaintiffs sought compensatory and punitive damages, arguing that the defendants had committed several tortuous acts. The Court had to assess primarily whether the plaintiffs had established jurisdiction. The plaintiffs sought to establish jurisdiction under two provisions: U.S.C., Title 28, paras. 1331 and 1350. Under U.S.C., Title 28, para. 1331, they asserted that an implied cause of action arose from federal criminal statutes (U.S.C., Title 18, paras. 956; 960; 957; 1651-1661) and the federal common law including the law of nations. The plaintiffs cited, e.g., the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the UN Charter as a basis for federal jurisdiction. The PCNA and PIO motioned for summary judgment. The NAAA motioned to dismiss the actions for lack of subject matter jurisdiction and bar by statute of limitation.
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Specific legal rules and provisions
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- Paragraphs 1331 and 1350 of Title 28 of the US Code.
- Paragraphs 956, 960, 957, 1651-1661 of Title 18 of the US Code.
- Paragraphs 12-301 ofd the District of Columbia Code.
Court's holding and analysis
Given the inapplicability of the federal crimes statutes (pp. 2-3), the Court focussed on the claim that international law offered the plaintiffs a basis for federal jurisdiction. It held, based on Foster v. Neilson,that treaties must provide expressly for a private right of action (pp. 3-4). Plaintiffs had been unable to argue that international law, including law of nations, provided them a cause of action (pp. 5-6).
Regarding para. 1350, the Court stated that three conditions must be met: the claim must be made by an alien, it must be for a tort and the tort must be in violation of the law of nations or the treaties of the US. The Court considered the second and third condition to be problematic: the allegation that NAAA, the PCNA and the PIO had supported the attack was insufficiently substantiated (p. 7). Also, the Court came to a conclusion similar to the one regarding para. 1331: an action predicated on international law must be based on a specific right to a private claim.The plaintiffs had demonstrated no such entitlement (p. 7). Lastly, the Court held that the action was barred by the one year statute of limitation period (p. 8).
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- K.S. Bhatia, ‘Reconsidering the Purely Jurisdictional View of the Alien Tort Statute’, Emory International Law Review, 2013, vol. 27, pp. 447-508;
- H. Berman, ‘The Alien Tort Claims Act and the Law of Nations’, SSRN, 12 February 2005;
- J. Ku & J. Yoo, ’Beyond Formalism in Foreign Affairs: A Functional Approach to the Alien Tort Statute’, SSRN, 23 January 2005;
- C.M. Vazquez, ‘Sosa V. Alvarez-Machain and Human Rights Claims Against Corporations Under the Alien Tort Statute’, SSRN, 1 November 2005;
- W.S. Dodge, ‘After Sosa: The Future of Customary International Law in the United States’, Willamette Journal of International Law and Dispute Resolution, 2009, vol. 17, pp. 21-48;
- The recent Supreme Court ruling in Kiobel v. Shell gave rise to new discussion as well: see ‘Kiobel v. Shell: Supreme Court Limits Courts’ Ability to Hear Claims of Human Rights Abuses Committed Abroad’, Center for constitutional rights, 17 April 2013.
- Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, The Hague, 18 October 1907.
- Charter of the United Nations of 26 June 1945.
- Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (GC I), 12 August 1949, 75 UNTS 35, entered into force 21 October 1950.
- Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (GC II), 12 August 1949, 75 UNTS 81, entered into force 21 October 1950.
- Geneva Convention relative to the Treatment of Prisoners of War (GC III), 12 August 1949, 75 UNTS 135, entered into force 21 October 1950.
- Geneva Convention relative to the Protection of Civilian Persons in Time of War (GC IV), 12 August 1949, 75 UNTS 287, entered into force 21 October 1950.
- Convention on the Prevention and Punishment of the Crime of Genocide, 78 UNTS 227, 9 December 1948, entered into force 12 January 1951.
- Universal Declaration of Human Rights, UNGA Res. 217 A(III), UN Doc A/810 91, UN General Assembly, 10 December 1948.
- International Covenant on Civil and Political Rights, 999 UNTS 171, 16 December 1966.
- American Convention on Human Rights, 1144 UNTS 123, 22 November 1969.
- Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, Adopted by General Assembly resolution 2625 (XXV) of 24 October 1970.
- Convention to Prevent and Punish the Acts of Terrorism Taking the Forms of Crime Against Persons and Related Extortion That Are of International Significance (Organization of American States (OAS) Convention), 2 February 1971.
- Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (AP I), 1125 UNTS 17512, 8 June 1977, entered into force 7 December 1978.
- Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (AP II), 1125 UNTS 609, 8 June 1977, entered into force 7 December 1979.
- Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, Adopted and opened for signature, ratification and accession by General Assembly resolution A/RES/54/263, 25 May 2000.