en.wikipedia.org/wiki/Hostis_humani_generis
2 corrections found
ruled that it could exercise jurisdiction over agents of the Alfredo Stroessner military dictatorship of Paraguay (in their individual capacity) who were found to have committed the crime of torture against a Paraguayan citizen, using its jurisdiction under the Offenses Clause of the Constitution of the United States, the Alien Tort Claims Act, and customary international law.
Filártiga did not hold that federal jurisdiction came from the Constitution’s Offenses Clause, and the Second Circuit did not itself find Peña-Irala guilty of torture. It held that the Alien Tort Statute, 28 U.S.C. § 1350, supplied jurisdiction over the torture allegations and reversed the dismissal.
Full reasoning
In Filártiga v. Peña-Irala, the Second Circuit framed the case as an appeal from dismissal for lack of subject-matter jurisdiction and said it had to accept the complaint's torture allegations as true for purposes of the appeal. The opinion states: "Because the district court dismissed the action for want of subject matter jurisdiction, we must accept as true the allegations contained in the Filartigas' complaint and affidavits for purposes of this appeal." So the court did not itself "find" Peña-Irala guilty of torture in that decision.
The court also identified the jurisdictional basis as the Alien Tort Statute / Alien Tort Claims Act, 28 U.S.C. § 1350. The opinion says the First Congress "established original district court jurisdiction" now codified at § 1350, and concludes that "§ 1350 provides federal jurisdiction." Cornell's Legal Information Institute likewise summarizes the ATS as the statute that grants federal district courts jurisdiction over civil actions by aliens for torts committed in violation of the law of nations.
While the plaintiffs' complaint invoked other constitutional provisions, the Second Circuit's holding on jurisdiction was based on § 1350, not on a judicial exercise of jurisdiction "under the Offenses Clause."
2 sources
- Court holds torture violates Jus Cogens in Alien Tort Claim case - Filartiga v. Pena-Irala, 630 F.2d 876 (2nd Cir. 1980)
The court states that the First Congress established district court jurisdiction codified at 28 U.S.C. § 1350, that '§ 1350 provides federal jurisdiction,' and that because the district court dismissed for want of jurisdiction, 'we must accept as true the allegations contained in the Filartigas' complaint and affidavits for purposes of this appeal.'
- Alien Tort Statute | Wex | US Law | LII / Legal Information Institute
The ATS 'grants federal district courts original jurisdiction over any civil action where an alien sues for a tort committed in violation of the law of nations or of a treaty of the United States.'
The only actual extension of hostis humani generis blessed by courts of law has been its extension to torturers.
That is too narrow. Courts have also applied the concept to perpetrators of war crimes and crimes against humanity, not only to torturers.
Full reasoning
This sentence overstates the case law. The Second Circuit's opinion in Kiobel v. Royal Dutch Petroleum summarized Alien Tort Statute jurisprudence as covering, "as a general matter, war crimes and crimes against humanity—crimes in which the perpetrator can be called hostis humani generis, an enemy of all mankind." The same opinion also states that customary international law imposes individual liability for "war crimes, crimes against humanity (such as genocide), and torture."
So court decisions have not treated torture as the only court-recognized extension of the phrase. At least in U.S. appellate case law, war crimes and crimes against humanity have also been described as offenses whose perpetrators may be called hostis humani generis.
2 sources
- Kiobel v. Royal Dutch Petroleum, No. 06-4800 (2d Cir. 2010) :: Justia
The opinion states that ATS jurisdiction includes, 'as a general matter, war crimes and crimes against humanity—crimes in which the perpetrator can be called hostis humani generis, an enemy of all mankind.' It later says customary international law imposes individual liability for 'war crimes, crimes against humanity (such as genocide), and torture.'
- Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995) :: Justia
The Second Circuit discussed pirates as 'hostis humani generis' and added that 'Later examples are prohibitions against the slave trade and certain war crimes,' contradicting the idea that courts have recognized only torture as an extension.