Conceptualizing violence under international law: do tort remedies fit the crime?
Author | Stephens, Beth |
Position | Conceptualizing Violence: Present and Future Developments in International Law |
TORT
A private or civil wrong or injury, . . . for which the court will provide a remedy in the form of an action for damages.(1)
CRIME
[A]n act committed or omitted in violation of a law forbidding or commanding it, and to which is annexed, upon conviction, . . . punishment[]. . . (2)
VIOLENCE
Unjust or unwarranted exercise of force . . . (3)
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INTRODUCTION
In a domestic legal system, violence triggers two interrelated sets of laws and procedures: criminal and tort. Acts of violence the unjust or unwarranted use of force--constitute crimes. Where death results, the violence is labelled homicide and is ranked as some degree of manslaughter or murder.(4) Where lesser physical harm is inflicted, the violence is defined as the crime of assault.(5) Crimes render the perpetrator subject to criminal prosecution and punishment.
The same acts of violence also constitute torts--envisions of rights which may be redressed through civil litigation.(6) Tort law permits a victim to sue the violent aggressor for damages or compensation.(7) In most legal systems, both the procedures by which a claim is handled and the negative consequences imposed on the perpetrator of a wrongful act differ sharply between criminal law and tort law.(8)
Determining the appropriate response to most acts of violence is an issue of domestic law, falling within the powers of each sovereign State. Particular acts of violence, however, also trigger international concerns. International law prohibits specific violent offenses by state actors, including summary execution and torture.(9) It also bars certain acts of violence, such as genocide, piracy and some violations of the laws of war, even when these acts are committed by private actors.(10) Finally, international law imposes on a State the obligation to take steps to prevent violence.(11) Thus, a State's failure to investigate and punish violent acts committed by otherwise private actors may also violate international law.(12)
As the international community struggles to develop means to enforce these prohibitions, what is the relevance of the tort/crime distinction? In the United States, the Alien Tort Claims Act (ATCA)(13) permits a victim of an international human rights violation to sue in federal court for a "tort" committed "in violation of the law of nations."(14) The statute fuses two otherwise independent concepts: a tort and a violation of international law.(15) Is it proper to classify human rights violations, such as torture, as torts, thereby allowing victims to sue for damages? Does such a process somehow diminish the significance of the violation, interfere with the proper functioning of the criminal law system or violate international law?
The following discussion reviews the distinction between torts and crimes under domestic and international law, as well as the development of international human rights norms applicable to acts of violence. While complete justice for victims of violence ideally includes criminal prosecution as well as a civil tort remedy, the failure to prosecute the crime does not negate the value of a civil judgment. To the contrary, civil remedies are that much more important, given that international criminal prosecutions are virtually nonexistent. Even where criminal prosecutions are undertaken, an international tort remedy may complement such a proceeding, much as in the domestic sphere. Civil lawsuits for international human rights violations thus serve a role similar to tort litigation in a domestic forum: to offer victims of violence a legal remedy which they control and which may satisfy needs not met by the criminal law system.
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TORTS VS. CRIMES: DOMESTIC LAW
Domestic law has struggled to define the line separating crimes and torts. One approach focuses on the formal characteristics differentiating the processes by which the two classes of injuries or wrongs are handled by the legal system. Criminal prosecution, for example, is generally controlled by the government and includes incarceration as a potential sanction, whereas tort litigation is handled by private parties and results in a money judgment for damages.(16) Those convicted of crimes are usually punished, while those responsible for a tort are allowed to compensate the injured party, paying for the harm they have caused and thereby wiping clean the slate.(17) In keeping with its concern for culpability, criminal law focuses on the intent of the perpetrator of a wrongful act.(18) Tort law, to the contrary, concentrates on the harm caused to a victim, with the amount of damages determined by the extent of the injury caused, not by the tortfeasor's mental state.(19)
Another approach to differentiating between crimes and torts looks not at the formal differences in the way the two are handled by the legal system, but at the intrinsic quality of the acts involved. Torts are viewed as private wrongs, and as a result, society allows tortfeasors to expiate their wrongs by compensating the victims of their actions. Crimes, on the other hand, are acts which involve moral culpability or special harm to the whole community.(20) Crimes violate accepted public norms, which reflect common values, and protect the community as a whole.(21)
Civil tort litigation and criminal prosecution, which are independent systems in the United States, function more in tandem in many other legal systems. Thus, in some countries, an individual may be able to initiate criminal prosecutions for some crimes or intervene as a party alongside the prosecutor.(22) Although in theory such systems offer the victim of violence a greater degree of control over the pursuit of redress, in practice the impact may be limited and the procedure rarely used.(23) In any event, basic differences between the civil and criminal processes generally remain in the key areas of procedure, remedies and the moral impact of a judgment.(24)
Labelling a wrong a "crime" rather than a "tort" thus has dramatic consequences both for the procedures applied by the legal system, and for the available remedies, i.e., imprisonment after a criminal conviction or an award of money damages after civil tort judgment. Moreover, prosecution of criminal cases requires involvement of the State. Once the decision to move forward has been taken, the resources of the government are available for investigation, litigation and enforcement of a judgment. However, the injured party loses control of the process. Tort litigation, on the other hand, remains in the hands of the aggrieved party, offering increased control over the process, but at the price of responsibility for financing and managing all phases of the litigation. Finally, a civil judgment may not carry the moral impact of a criminal conviction, since tort actions are viewed as a response to a private injury, rather than to an injury of concern to the whole community.
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TORTS VS. CRIMES: INTERNATIONAL LAW
Does international law recognize the distinction between crime and tort? While not necessarily labelled torts, international law recognizes a range of international responsibilities, the breach of which by a State leads to imputed legal liabilities.(25) Where international law obligates one State to compensate another for injuries caused by the invasion of a legal interest, a liability akin to that of a tort arises.(26)
With respect to crimes, the stable institutions necessary to provide the structural definitions employed domestically are absent on the international plane. There are no governmental prosecutors, no criminal courts and no international prisons.(27) Nevertheless, international law has long recognized the concept of international crimes.(28) Two sets of behavior are considered criminal by the international community: crimes for which States are held responsible and crimes triggering individual responsibility.(29) According to the International Law Commission, a State commits an "international crime" if it breaches "an international obligation so essential for the protection of fundamental interests of the international community that its breach is recognized as a crime by that community as a whole . . ."(30) Applying the concept of "crime" as used in the domestic sphere is problematic. No criminal court exists to try States for such violations, nor can a State be incarcerated.(31) In addition, criminal punishment of a government must inevitably fall upon the citizens of that State, raising questions about the fairness of holding a whole population responsible for the wrongs committed by their government.(32)
Nevertheless, such international crimes share the moral underpinnings identified by the crime/tort distinction. International crimes committed by a State are wrongs of such severity that they are of concern to the entire world community, not just to the particular States injured by the acts in question.(33) Thus, the community as a whole takes responsibility for enforcing he norms and "punishing" the wrongdoer by whatever means available.(34) By contrast, the vast majority of international law violations are similar to domestic torts in that they are considered to be of concern only to the States injured by such breaches. As with domestic tort liability, enforcement of these international rules is left to those States directly affected.(35) The erring State can expiate its transgression by compensating the injured State, just as in domestic tort actions.
International law also recognizes international crimes which trigger individual criminal responsibility. They differ from domestic crimes, in that they trigger international concerns as offenses against all of humanity. Such crimes therefore fall within the concept of universal jurisdiction, indicating that States may assert criminal jurisdiction over the perpetrators even for acts committed in other States.(36) Examples include genocide, piracy, the slave trade and hijacking.(37) The International Law Commission recently proposed...
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