SHIGENORI KURODA, petitioner, vs. Major criminals is an aspect of waging war.

And, in the
General RAFAEL JALANDONI, Brigadier General language of a writer, a military commission 'has
CALIXTO DUQUE, Colonel MARGARITO TORALBA, jurisdiction so long as a technical state of war
Colonel IRENEO BUENCONSEJO, Colonel PEDRO continues. This includes the period of an
TABUENA, Major FEDERICO ARANAS, MELVILLE S. armistice, or military occupation, up to the
HUSSEY and ROBERT PORT, respondents. effective date of a treaty of peace, and may
extend beyond, by treaty agreement.' (Cowls,
Executive Order No. 68, establishing a National Trial of War Criminals by Military Tribunals,
War Crimes Office and prescribing rules and American Bar Association Journal, June, 1944.)"
regulations governing the trial of accused war
criminals, was issued by the President of the Consequently, the President as Commander in
Philippines on the 29th day of July, 1947. This Chief is fully empowered to consummate this
Court holds that this order is valid and unfinished aspect of war, namely, the trial and
constitutional. Article 2 of our Constitution punishment of war criminals, through the
provides in its section 3, that — issuance and enforcement of Executive Order No.
68.
"The Philippines renounces war as an instrument
of national policy, and adopts the generally
accepted principles of international law as part of
the law of the nation."
KURODA:
In accordance with the GENERALLY ACCEPTED
PRINCIPLES OF INTERNATIONAL LAW OF The Military Commission has no jurisdiction to try
THE PRESENT DAY, INCLUDING THE HAGUE petitioner for acts committed in violation of the
CONVENTION, THE GENEVA CONVENTION Hague Convention and the Geneva Convention
AND SIGNIFICANT PRECEDENTS OF because the Philippines is not a signatory to
INTERNATIONAL JURISPRUDENCE the first and signed the second only in
ESTABLISHED BY THE UNITED NATIONS, all 1947.
those persons, military or civilian, who have been
guilty of planning, preparing or waging a war of
aggression and of the commission of crimes and
It cannot be denied that the rules and regulations
offenses consequential and incidental thereto, in
of the Hague and Geneva conventions FORM
violation of the laws and customs of war, of
PART OF AND ARE WHOLLY BASED ON THE
humanity and civilization, are held accountable
GENERALLY ACCEPTED PRINCIPLES OF
therefor. Consequently, in the promulgation and
INTERNATIONAL LAW. In fact, these rules and
enforcement of Executive Order No. 68, THE
principles were accepted by the two
PRESIDENT OF THE PHILIPPINES HAS ACTED
belligerent nations, the United States and
IN CONFORMITY WITH THE GENERALLY
Japan, who were signatories to the two
ACCEPTED PRINCIPLES AND POLICIES OF
Conventions. SUCH RULES AND PRINCIPLES,
INTERNATIONAL LAW WHICH ARE PART OF
THEREFORE, FORM PART OF THE LAW OF
OUR CONSTITUTION.
OUR NATION EVEN IF THE PHILIPPINES WAS
NOT A SIGNATORY TO THE CONVENTIONS
The promulgation of said executive order is an
EMBODYING THEM, for OUR CONSTITUTION
exercise by the President of his powers as
HAS BEEN DELIBERATELY GENERAL AND
Commander in Chief of all our armed forces, as
EXTENSIVE IN ITS SCOPE AND IS NOT
upheld by this Court in the case of Yamashita vs.
CONFINED TO THE RECOGNITION OF RULES
Styer L-129, 42 Off. Gaz., 654) 1 when we said —
AND PRINCIPLES OF INTERNATIONAL LAW
AS CONTAINED IN TREATIES TO WHICH OUR
"War is not ended simply because hostilities have
GOVERNMENT MAY HAVE BEEN OR SHALL
ceased. After cessation of armed hostilities,
BE A SIGNATORY.
incidents of war may remain pending which
should be disposed of as in time of war. 'An
Furthermore, when the crimes charged against
important incident to a conduct of war is the
petitioner were allegedly committed, THE
adoption of measures by the military command
PHILIPPINES WAS UNDER THE SOVEREIGNTY
not only to repel and defeat the enemies but to
OF THE UNITED STATES, AND THUS WE
seize and subject to disciplinary measures those
WERE EQUALLY BOUND TOGETHER WITH
enemies who in their attempt to thwart or
THE UNITED STATES AND WITH JAPAN, to the
impede our military effort have violated the law
rights and obligations contained in the treaties
of war.' (Ex parte Quirin, 317 U. S., 1; 63 Sup. Ct.,
between the belligerent countries. THESE
2.) Indeed, the power to create a military
RIGHTS AND OBLIGATIONS WERE NOT
commission for the trial and punishment of war
ERASED BY OUR ASSUMPTION OF FULL
SOVEREIGNTY. If at all, OUR EMERGENCE AS
A FREE STATE ENTITLES US TO ENFORCE
THE RIGHT, ON OUR OWN, OF TRYING AND
PUNISHING THOSE WHO COMMITTED
CRIMES AGAINST OUR PEOPLE. In this
connection, it is well to remember what we have
said in the case of Laurel vs. Misa (76 Phil.,
372):
". . . The change of our form of government from
Commonwealth to Republic does not affect the
prosecution of those charged with the crime of
treason committed during the Commonwealth,
because it is an offense against the same
government and the same sovereign people . . . "
By the same token, war crimes committed
against our people and our government while we
were a Commonwealth, are triable and
punishable by our present Republic.
VICTOR BOROVSKY, petitioner, vs. THE
COMMISSIONER OF IMMIGRATION and THE
DIRECTOR OF PRISONS, respondents.
Aliens illegally staying in the Philippines
have no right of asylum therein (Soewapadji
vs. Wixon, Sept. 13, 1946, 157 F. ed., 289,
290), even if they are "stateless," which the
petitioner claims to be. It is no less true
however as impliedly stated in this Court's
decision, supra, and numerous American
decisions, that FOREIGN NATIONALS, NOT
ENEMY, AGAINST WHOM NO CRIMINAL
CHARGES HAVE BEEN FORMALLY MADE OR
JUDICIAL ORDER ISSUED, MAY NOT
INDEFINITELY BE KEPT IN DETENTION.
THE PROTECTION AGAINST DEPRIVATION OF
LIBERTY WITHOUT DUE PROCESS OF LAW
AND EXCEPT FOR CRIMES COMMITTED
AGAINST THE LAWS OF THE LAND IS NOT
LIMITED TO PHILIPPINE CITIZENS BUT
EXTENDS TO ALL RESIDENTS, EXCEPT
ENEMY ALIENS, REGARDLESS OF
NATIONALITY. Whether an alien who entered
the country in violation of its immigration laws
may be detained for as long as the Government is
unable to deport him, is beside the point and we
need not decide. There is no allegation that the
petitioner's entry into the Philippines was not
lawful; on the contrary, the inference from the
pleadings and the Deportation Board's findings is
that he came to and lived in this country under
legal permit.
Moreover, by its Constitution (Art. II, sec. 3) THE
PHILIPPINES "ADOPTS THE GENERALLY
ACCEPTED PRINCIPLES OF INTERNATIONAL
LAW AS PART OF THE LAW OF NATION." And
in A RESOLUTION ENTITLED "UNIVERSAL
DECLARATION OF HUMAN RIGHTS" and
APPROVED BY THE GENERAL ASSEMBLY OF
THE UNITED NATIONS OF WHICH THE
PHILIPPINES IS A MEMBER, at its plenary
meeting on December 10, 1948, the right to life
and liberty and all other fundamental rights as
applied to all human beings were proclaimed. It
was there resolved that "All human beings are
born free and equal in degree and rights" (Art. 1);
that "Everyone is entitled to all the rights and
freedom set forth in this Declaration, without
distinction of any kind, such as race, colour, sex,
language, religion, political or other opinion,
nationality or social origin, property, birth, or
other status (Art. 2); that "Everyone has the right
to an effective remedy by the competent national
tribunals for acts violating the fundamental rights
granted him by the Constitution or by law" (Art.
8); that "No one shall be subjected to arbitrary
arrest, detention or exile" (Art. 9); etc.
LAO H. ICHONG, in his own behalf and in behalf
of other alien residents, corporations and
partnerships adversely affected by Republic Act
No. 1180, petitioner, vs. JAIME HERNANDEZ,
Secretary of Finance, and MARCELINO
SARMIENTO, City Treasurer of Manila,
respondent.
Republic Act No. 1180 is entitled "An Act to
Regulate the Retail Business." In effect it
nationalizes the retail trade business. The main
provisions of the Act are:
(1) a prohibition against persons, not citizens
of the Philippines, and against
associations, partnerships, or corporations
the capital of which are not wholly owned
by citizens of the Philippines, from
engaging directly or indirectly in the retail
trade;
(2) an exception from the above prohibition in
favor of aliens actually engaged in said
business on May 15, 1954, who are
allowed to continue to engage therein,
unless their licenses are forfeited in
accordance with the law, until their death
or voluntary retirement in case of natural
persons, and for ten years after the
approval of the Act or until the expiration
of term in case of juridical persons;
(3) an exception therefrom in favor of
citizens and juridical entities of the United
States;
(4) a provision for the forfeiture of licenses (to
engage in the retail business) for violation
 of the laws on nationalization, economic
control weights and measures and labor
and other laws relating to trade,
commerce and industry;
(5) a prohibition against the establishment or
opening by aliens actually engaged in the
retail business of additional stores or
branches of retail business,
(6) a provision requiring aliens actually
engaged in the retail business to present
for registration with the proper authorities
a verified statement concerning their
businesses, giving, among other matters,
the nature of the business, their assets
and liabilities and their offices and
principal offices of juridical entities; and
(7) a provision allowing the heirs of aliens
now engaged in the retail business who
die, to continue such business for a period
of six months for purposes of liquidation.
ICHONG:
The Act violates international and treaty
obligations of the Republic of the Philippines.
Another subordinate argument against the
validity of the law is the supposed violation
thereby of the Charter of the United Nations and
of the Declaration of Human Rights adopted by
the United Nations General Assembly.
THERE IS NO MERIT IN THE ABOVE
CONTENTION.
THE UNITED NATIONS CHARTER IMPOSES
NO STRICT OR LEGAL OBLIGATIONS
REGARDING THE RIGHTS AND FREEDOM OF
THEIR SUBJECTS (Hans Kelsen, The Law of the
United Nations, 1951 ed. pp. 29-32), and THE
DECLARATION OF HUMAN RIGHTS CONTAINS
NOTHING MORE THAN A MERE
RECOMMENDATION, OR A COMMON
STANDARD OF ACHIEVEMENT FOR ALL
PEOPLES AND ALL NATIONS (Id. p. 39.) That
such is the import of the United Nations Charter
aid of the Declaration of Human Rights can be
inferred from the fact that members of the United
Nations Organization, such as Norway and
Denmark, prohibit foreigners from engaging in
retail trade, and in most nations of the world laws
against foreigners engaged in domestic trade are
adopted.
The Treaty of Amity between the Republic of the
Philippines and the Republic of China of April 18,
1947 is also claimed to be violated by the law in
question. All that the treaty guarantees is
equality of treatment to the Chinese nationals
"upon the same terms as the nationals of any
other country." BUT THE NATIONALS OF
CHINA ARE NOT DISCRIMINATED AGAINST
BECAUSE NATIONALS OF ALL OTHER
COUNTRIES, EXCEPT THOSE OF THE UNITED
STATES, WHO ARE GRANTED SPECIAL
RIGHTS BY THE CONSTITUTION, ARE ALL
PROHIBITED FROM ENGAGING IN THE
RETAIL TRADE. But even supposing that the law
infringes upon the said treaty, THE TREATY IS
ALWAYS SUBJECT TO QUALIFICATION OR
AMENDMENT BY A SUBSEQUENT LAW (U. S.
vs. Thompson, 258, Fed. 257, 260), and THE
SAME MAY NEVER CURTAIL OR RESTRICT
THE SCOPE OF THE POLICE POWER OF THE
STATE (Palston vs. Pennsylvania, 58 L. ed. 539.).
HAW PIA, plaintiff-appellant, vs. THE CHINA
BANKING CORPORATION, defendant-appellee.
Whether or not the Japanese Military
Administration had authority to order the
liquidation or winding up of the business of
defendant-appellee China Banking
Corporation, and to appoint the Bank of
Taiwan liquidator authorized as such to
accept the payment by the plaintiff-
appellant to said defendant-appellee.
The Japanese military authorities had power,
under the international law, to order the
liquidation of the China Banking Corporation and
to appoint and authorize the Bank of Taiwan as
liquidator to accept the payment in question,
because such liquidation is not a confiscation of
the properties of the bank appellee, but a mere
sequestration of its assets which required the
liquidation or winding up of the business of said
bank. All the arguments to the contrary in
support of the decision appealed from are
predicated upon the erroneous assumption that
the liquidation or winding up of the affairs of the
China Banking Corporation, in order to determine
its liabilities and net assets to be sequestrated or
controlled, was an act of confiscation or
appropriation of private property contrary to
Article 46, section III of the Hague Regulations of
1907.
The provisions of the Hague Regulations, section
III, on Military Authority over Hostile Territory,
which is a part of the Hague Convention
respecting the laws and customs of war on land,
are intended to serve as a general rule of conduct
for the belligerents in their relations with each
other and with the inhabitants, but as it had not
been found possible then to concert regulations
covering all the circumstances which occur in
practice, and on the other hand it could not have
been intended by the High Contracting Parties
that the unforeseen cases should, in the absence
of a written undertaking, be left to the arbitrary
judgment of military commanders, it was agreed
that "Until a complete code of the laws of
war has been issued, the High Contracting
Parties deem it expedient to declare that in
cases not included in the Regulations
adopted by them, the inhabitants and the
belligerents remain under the protection
and the rule of the principles of
international law, as they result for the
usages established among civilized
peoples, from the laws of humanity, and the
dictates of public conscience."
Before the Hague Convention, it was the usage
or practice to allow or permit the
confiscation or appropriation by the
belligerent occupant not only of public but
also of private property of the enemy in a
territory occupied by the belligerent hostile
army; and as such usage or practice was
allowed, a fortiori, any other act short of
confiscation was necessarily permitted.
Section III of the Hague Regulations only prohibits
the confiscation of private property by order of
the military authorities (article 46), and pillage or
stealing and thievery thereof by individuals
(article 47); and as regards public property,
article 53 provides that cash funds, and property
liable to requisition and all other movable
property belonging to the State susceptible of
military use or operation, may be confiscated or
taken possession of as a booty and utilized for
the benefit of the invader's government (II
Oppenheim, 8th ed. section 137; 320 & 321, War
Department; Basic Field Manual, Rules of Land
Warfare FM 27-10). The belligerents in their effort
to control enemy property within their jurisdiction
or in territories occupied by their armed forces in
order to avoid their use in aid of the enemy and
to increase their own resources, after the Hague
Convention and specially during the first World
War, had to resort to such measures of
prevention which do not amount to a straight
confiscation, as freezing, blocking, placing under
custody and sequestrating the enemy private
property. Such acts are recognized as not
repugnant to the provisions of Article 46 or
any other article of the Hague Regulations
by well-known writers on International Law,
and are authorized in the Army and Navy
Manual of Military Government and Civil
Affairs not only of the United States, but
also in similar manuals of Army and Navy of
other civilized countries, as well as in the
Trading with the Enemy Acts of said
countries.
Not only the United States Army and Navy
Manual of Military Government and Civil Affairs
but similar manuals of other countries authorize
the liquidation or impounding of the assets of
enemy banks or the freezing, blocking and
impounding of enemy properties in the occupied
hostile territories without violating article 46 or
other articles of the Hague Regulations. They do
not amount to an outright confiscation of private
property, and were put into effect by the Allied
Army in the occupied hostile territories in Europe
during World War II.
The provisions of the Trading with the
Enemy Acts enacted by the United States
and almost all the principal nations since
the first World War, including England,
Germany, France, and other European
countries, as well as Japan, confirms that
the assets of enemy corporations, specially
banks incorporated under the laws of the
country at war with the occupant and doing
business in the occupied territory, may be
legally sequestrated, and the business
thereof wound up or liquidated. Such
sequestration or seizure of properties is not an
act for the confiscation of enemy property, but for
the conservation of it, subject to further
disposition by treaty between the belligerents at
the end of the war. Section 12 of the Trading with
the Enemy Act of the United States provides that
"after the end of the war any claim of enemy or
ally of an enemy to any money or other property
received and held by the Alien Custodian or
deposited in the United States Treasury, shall be
settled as Congress shall direct.
It is to be presumed that Japan, in sequestrating
and liquidating the China Banking Corporation,
must have acted in accordance, either with her
own Manual of the Army and Navy and Civil
Affairs, or with her Trading with the Enemy Act,
and even if not, it being permitted to the Allied
Nations, specially the United States and England,
to sequestrate, impound, and block enemy
properties found within their own domain or in
enemy territories occupied during the war by
their armed forces, and it being not contrary to
the Hague Regulations or international law, Japan
had also the right to do the same in the
Philippines by virtue of the international law
principle that “what is permitted to one
belligerent is also allowed to the other.”
Dolly M. E. FILARTIGA and Joel Filartiga,
Plaintiffs-Appellants, v. Americo Norberto PENA-
IRALA, Defendant-Appellee.

Citizens of the Republic of Paraguay, who
had applied for permanent political asylum
in the United States, brought action against
one also a citizen of Paraguay, who was in
United States on a visitor's visa, for
wrongfully causing the death of their son
allegedly by the use of torture.
The United States District Court for the Eastern
District of New York, Eugene H. Nickerson, J.,
dismissed the action for want of subject matter
jurisdiction and appeal was taken. The Court of
Appeals, Irving R. Kaufman, Circuit Judge, held
that deliberate torture perpetrated under the
color of official authority violates universally
accepted norms of international law of human
rights regardless of the nationality of the parties,
and, thus, whenever an alleged torturer is found
and served with process by an alien within the
borders of the United States, the Alien Tort
Statute provides federal jurisdiction.
Implementing the constitutional mandate for
national control over foreign relations, the First
Congress established original district court
jurisdiction over “all causes where an alien sues
for a tort only (committed) in violation of the law
of nations.” Judiciary Act of 1789, ch. 20, s 9(b), 1
Stat. 73, 77 (1789), codified at 28 U.S.C. s 1350.
Construing this rarely-invoked provision, we hold
that DELIBERATE TORTURE PERPETRATED
UNDER COLOR OF OFFICIAL AUTHORITY
VIOLATES UNIVERSALLY ACCEPTED NORMS
OF THE INTERNATIONAL LAW OF HUMAN
RIGHTS, REGARDLESS OF THE NATIONALITY
OF THE PARTIES. Thus, whenever an alleged
torturer is found and served with process by an
alien within our borders, s 1350 provides federal
jurisdiction.
The cause of action is stated as arising
under “wrongful death statutes; the U. N.
Charter; the Universal Declaration on
Human Rights; the U. N. Declaration Against
Torture; the American Declaration of the
Rights and Duties of Man; and other
pertinent declarations, documents and
practices constituting the customary
international law of human rights and the
law of nations,” as well as 28 U.S.C. s 1350,
Article II, sec. 2 and the Supremacy Clause
of the U. S. Constitution. Jurisdiction is
claimed under the general federal question
provision, 28 U.S.C. s 1331 and, principally on
this appeal, under the Alien Tort Statute, 28
U.S.C. s 1350.
A threshold question on the jurisdictional issue is
WHETHER THE CONDUCT ALLEGED
VIOLATES THE LAW OF NATIONS. In light of
the universal condemnation of torture in
numerous international agreements, and the
renunciation of torture as an instrument of official
policy by virtually all of the nations of the world
(in principle if not in practice), we find that AN
ACT OF TORTURE COMMITTED BY A STATE
OFFICIAL AGAINST ONE HELD IN DETENTION
VIOLATES ESTABLISHED NORMS OF THE
INTERNATIONAL LAW OF HUMAN RIGHTS,
AND HENCE THE LAW OF NATIONS.
The LAW OF NATIONS “may be ascertained
by consulting the works of jurists, writing
professedly on public law; or by the general
usage and practice of nations; or by judicial
decisions recognizing and enforcing that
law.”
THE REQUIREMENT THAT A RULE COMMAND
THE “GENERAL ASSENT OF CIVILIZED
NATIONS” TO BECOME BINDING UPON THEM
ALL IS A STRINGENT ONE. Were this not so,
the courts of one nation might feel free to impose
idiosyncratic legal rules upon others, in the name
of applying international law.
For although there is no universal
agreement as to the precise extent of the
“human rights and fundamental freedoms”
guaranteed to all by the Charter, THERE IS
AT PRESENT NO DISSENT FROM THE VIEW
THAT THE GUARANTIES INCLUDE, AT A BARE
MINIMUM, THE RIGHT TO BE FREE FROM
TORTURE. This prohibition has become part of
customary international law, as evidenced
and defined by the Universal Declaration of
Human Rights, General Assembly Resolution
217 (III)(A) (Dec. 10, 1948) which states, in the
plainest of terms, “no one shall be subjected to
torture.”
THESE U.N. DECLARATIONS ARE
SIGNIFICANT BECAUSE THEY SPECIFY WITH
GREAT PRECISION THE OBLIGATIONS OF
MEMBER NATIONS UNDER THE CHARTER.
Since their adoption, “(m)embers can no longer
contend that they do not know what human
rights they promised in the Charter to promote.”
Sohn, “A Short History of United Nations
Documents on Human Rights,” in The United
Nations and Human Rights, 18th Report of the
Commission (Commission to Study the
Organization of Peace ed. 1968). Moreover, a
U.N. Declaration is, according to one
authoritative definition, “a formal and
solemn instrument, suitable for rare
occasions when principles of great and
lasting importance are being enunciated.”
34 U.N. ESCOR, Supp. (No. 8) 15, U.N. Doc.
E/cn.4/1/610 (1962) (memorandum of Office of
Legal Affairs, U.N. Secretariat). Accordingly, it has
been observed that the Universal Declaration
of Human Rights “no longer fits into the
dichotomy of ‘binding treaty’ against ‘non-
binding pronouncement,’ but is rather an
authoritative statement of the international
community.” E. Schwelb, Human Rights and the
International Community 70 (1964). Thus, a
Declaration creates an expectation of adherence,
and “insofar as the expectation is gradually
justified by State practice, a declaration may by
custom become recognized as laying down rules
binding upon the States.” 34 U.N. ESCOR, supra.
Indeed, several commentators have concluded
that THE UNIVERSAL DECLARATION HAS
BECOME, IN TOTO, A PART OF BINDING,
CUSTOMARY INTERNATIONAL LAW.
THE INTERNATIONAL CONSENSUS
SURROUNDING TORTURE HAS FOUND
EXPRESSION IN NUMEROUS INTERNATIONAL
TREATIES AND ACCORDS.
THE CONSTITUTIONAL BASIS FOR THE ALIEN
TORT STATUTE IS THE LAW OF NATIONS,
WHICH HAS ALWAYS BEEN PART OF THE
FEDERAL COMMON LAW. It is not extraordinary
for a court to adjudicate a tort claim arising
outside of its territorial jurisdiction. A state or
nation has a legitimate interest in the
orderly resolution of disputes among those
within its borders, and where the lex loci
delicti commissi is applied, it is an
expression of comity to give effect to the
laws of the state where the wrong occurred.
Here, where in personam jurisdiction has
been obtained over the defendant, the
parties agree that the acts alleged would
violate Paraguayan law, and the policies of
the forum are consistent with the foreign
law, state court jurisdiction would be
proper.
It is only where the nations of the world
have demonstrated that the wrong is of
mutual, and not merely several, concern, by
means of express international accords,
that a wrong generally recognized becomes
an international law violation within the
meaning of the statute.
S. KADIC, on her own behalf and on behalf of her
infant sons Benjamin and Ognjen, Internationalna
Iniciativa Zena Bosne I Hercegovine “Biser,” and
Zene Bosne I Hercegovine, Plaintiffs-Appellants,
v. Radovan KARADZ I , Defendant-Appellee.
Two groups of victims from Bosnia-
Herzegovina brought actions against self-
proclaimed president of unrecognized
Bosnian-Serb entity under, inter alia, Alien
Tort Claims Act for violations of
international law. The United States District
Court for the Southern District of New York, Peter
K. Leisure, J., 866 F.Supp. 734, dismissed actions
for lack of subject matter jurisdiction, and
plaintiffs appealed.
The Court of Appeals, Jon O. Newman, Chief
Judge, held that: (1) plaintiffs sufficiently alleged
violations of customary international law and law
of war for purposes of Alien Tort Claims Act; (2)
plaintiffs sufficiently alleged that unrecognized
Bosnian-Serb entity of “Srpska” was a “state,”
and that defendant acted under color of law for
purposes of international law violations requiring
official action; (3) defendant was not immune
from personal service of process while invitee of
United Nations; (4) actions were not precluded by
political question doctrine; and (5) defense under
act of state doctrine was waived.
THE JUDGMENT OF THE DISTRICT COURT
DISMISSING APPELLANTS' COMPLAINTS FOR LACK
OF SUBJECT-MATTER JURISDICTION IS REVERSED,
AND THE CASES ARE REMANDED FOR FURTHER
PROCEEDINGS IN ACCORDANCE WITH THIS
OPINION.
Our decision in Filártiga established that this
statute confers federal subject-matter jurisdiction
when the following three conditions are satisfied:
(1) an alien sues (2) for a tort (3) committed in
violation of the law of nations (i.e., international
law). 630 F.2d at 887; see also Amerada Hess
Shipping Corp. v. Argentine Republic, 830 F.2d
421, 425 (2d Cir.1987), rev'd on other grounds,
488 U.S. 428, 109 S.Ct. 683, 102 L.Ed.2d 818
(1989). The first two requirements are plainly
satisfied here, and the only disputed issue is
WHETHER PLAINTIFFS HAVE PLEADED
VIOLATIONS OF INTERNATIONAL LAW.
Filártiga established that courts ascertaining the
content of the law of nations “must interpret
international law not as it was in 1789, but as it
has evolved and exists among the nations of the
world today.” Id. at 881; see also Amerada Hess,
830 F.2d at 425. WE FIND THE NORMS OF
CONTEMPORARY INTERNATIONAL LAW BY “
‘CONSULTING THE WORKS OF JURISTS,
WRITING PROFESSEDLY ON PUBLIC LAW; OR
BY THE GENERAL USAGE AND PRACTICE OF
NATIONS; OR BY JUDICIAL DECISIONS
RECOGNIZING AND ENFORCING THAT LAW.’
” Filártiga, 630 F.2d at 880 (quoting *239United
States v. Smith, 18 U.S. (5 Wheat.) 153, 160-61, 5
L.Ed. 57 (1820)). If this inquiry discloses that
the defendant's alleged conduct violates
“well-established, universally recognized
norms of international law,” id. at 888, as
opposed to “idiosyncratic legal rules,” id. at
881, then federal jurisdiction exists under
the Alien Tort Act.
We do not agree that the law of nations, as
understood in the modern era, confines its reach
to state action. Instead, we hold that CERTAIN
FORMS OF CONDUCT VIOLATE THE LAW OF
NATIONS WHETHER UNDERTAKEN BY THOSE
ACTING UNDER THE AUSPICES OF A STATE
OR ONLY AS PRIVATE INDIVIDUALS. An early
example of the application of the law of
nations to the acts of private individuals is
the prohibition against piracy.
In order to determine WHETHER THE
OFFENSES ALLEGED BY THE APPELLANTS IN
THIS LITIGATION ARE VIOLATIONS OF THE
LAW OF NATIONS THAT MAY BE THE
SUBJECT OF ALIEN TORT ACT CLAIMS
AGAINST A PRIVATE INDIVIDUAL, we must
make a particularized examination of these
offenses, mindful of the important precept that
“evolving standards of international law govern
who is within the [Alien Tort Act's] jurisdictional
grant.” Amerada Hess, 830 F.2d at 425. In
making that inquiry, it will be helpful to group the
appellants' claims into three categories:
(a) genocide,
(b) war crimes, and
(c) other instances of inflicting death, torture,
and degrading treatment.
(a) Genocide. In the aftermath of the atrocities
committed during the Second World War, THE
CONDEMNATION OF GENOCIDE AS
CONTRARY TO INTERNATIONAL LAW
QUICKLY ACHIEVED BROAD ACCEPTANCE BY
THE COMMUNITY OF NATIONS. In 1946, the
General Assembly of the United Nations declared
that genocide is a crime under international law
that is condemned by the civilized world, whether
the perpetrators are “private individuals, public
officials or statesmen.” G.A.Res. 96(I), 1
U.N.GAOR, U.N. Doc. A/64/Add.1, at 188-89
(1946). The General Assembly also affirmed the
principles of Article 6 of the Agreement and
Charter Establishing the Nuremberg War Crimes
Tribunal for punishing “ ‘persecutions on political,
racial, or religious grounds,’ ” regardless of
whether the offenders acted “ ‘as individuals or
as members of organizations,’ ” In re Extradition
of Demjanjuk, 612 F.Supp. 544, 555 n. 11
(N.D.Ohio 1985) (quoting Article 6). See G.A.Res.
95(I), 1 U.N.GAOR, U.N.Doc. A/64/Add.1, at 188
(1946).
Appellants' allegations that Karadz i of law. See Declaration on Torture art. 1
personally planned and ordered a campaign
of murder, rape, forced impregnation, and
other forms of torture designed to destroy
the religious and ethnic groups of Bosnian
Muslims and Bosnian Croats clearly state a
violation of the international law norm
proscribing genocide, regardless of whether
Karadz i acted under color of law or as a
private individual. The District Court has
subject-matter jurisdiction over these claims
pursuant to the Alien Tort Act.
(b) War crimes. Plaintiffs also contend that the
acts of murder, rape, torture, and arbitrary
detention of civilians, committed in the course of
hostilities, violate the law of war. Atrocities of
the types alleged here have long been
recognized in international law as violations
of the law of war. See In re Yamashita, 327 U.S.
1, 14, 66 S.Ct. 340, 347, 90 L.Ed. 499 (1946).
Moreover, international law imposes an
affirmative duty on military commanders to take
appropriate measures within their power to
control troops under their command for the
prevention of such atrocities. Id. at 15-16, 66
S.Ct. at 347-48.
The offenses alleged by the appellants, if
proved, would violate the most fundamental
norms of the law of war embodied in
common article 3, which binds parties to
internal conflicts regardless of whether
they are recognized nations or roving
hordes of insurgents. The liability of private
individuals for committing war crimes has been
recognized since World War I and was confirmed
at Nuremberg after World War II, see Telford
Taylor, Nuremberg Trials: War Crimes and
International Law, 450 Int'l Conciliation 304 (April
1949) (collecting cases), and remains today an
important aspect of international law, see Jordan
Paust, After My Lai: The Case for War Crimes
Jurisdiction Over Civilians in Federal District
Courts, in 4 The Vietnam War and International
Law 447 (R.Falk ed., 1976). The District Court has
jurisdiction pursuant to the Alien Tort Act over
appellants' claims of war crimes and other
violations of international humanitarian law.
(c) Torture and summary execution. In Filártiga,
we held that official torture is prohibited by
universally accepted norms of international law,
see 630 F.2d at 885, and the Torture Victim Act
confirms this holding and extends it to cover
summary execution. Torture Victim Act §§ 2(a),
3(a). However, torture and summary
execution-when not perpetrated in the
course of genocide or war crimes-are
proscribed by international law only when
committed by state officials or under color
(defining torture as being “inflicted by or at the
instigation of a public official”); Convention
Against Torture and Other Cruel, Inhuman, or
Degrading Treatment or Punishment pt. I, art. 1,
23 I.L.M. 1027 (1984), as modified, *244 24 I.L.M.
535 (1985), entered into force June 26, 1987,
ratified by United States Oct. 21, 1994, 34 I.L.M.
590, 591 (1995) (defining torture as “inflicted by
or at the instigation of or with the consent or
acquiescence of a public official or other person
acting in an official capacity”); Torture Victim Act
§ 2(a) (imposing liability on individuals acting
“under actual or apparent authority, or color of
law, of any foreign nation”).
In the present case, appellants allege that acts of
rape, torture, and summary execution were
committed during hostilities by troops under
Karadz i 's command and with the specific intent
of destroying appellants' ethnic-religious groups.
Thus, many of the alleged atrocities are already
encompassed within the appellants' claims of
genocide and war crimes. Of course, at this
threshold stage in the proceedings it cannot be
known whether appellants will be able to prove
the specific intent that is an element of genocide,
or prove that each of the alleged torts were
committed in the course of an armed conflict, as
required to establish war crimes. It suffices to
hold at this stage that the alleged atrocities
are actionable under the Alien Tort Act,
without regard to state action, to the extent
that they were committed in pursuit of
genocide or war crimes, and otherwise may
be pursued against Karadz i to the extent
that he is shown to be a state actor. Since
the meaning of the state action requirement for
purposes of international law violations will likely
arise on remand and has already been considered
by the District Court, we turn next to that
requirement.
The customary international law of human
rights, such as the proscription of official
torture, applies to states without
distinction between recognized and
unrecognized states. See Restatement (Third)
§§ 207, 702. It would be anomalous indeed if non-
recognition by the United States, which typically
reflects disfavor with a foreign regime-sometimes
due to human rights abuses-had the perverse
effect of shielding officials of the unrecognized
regime from liability for those violations of
international law norms that apply only to state
actors.
Appellants' allegations entitle them to prove that
Karadz i 's regime satisfies the criteria for a state,
for purposes of those international law violations
requiring state action. Srpska is alleged to
control defined territory, control
populations within its power, and to have
entered into agreements with other
governments. It has a president, a
legislature, and its own currency. These
circumstances readily appear to satisfy the
criteria for a state in all aspects of international
law. Moreover, it is likely that the state action
concept, where applicable for some violations like
“official” torture, requires merely the semblance
of official authority. The inquiry, after all, is
whether a person purporting to wield official
power has exceeded internationally recognized
standards of civilized conduct, not whether
statehood in all its formal aspects exists.
THE PAQUETE HABANA. THE LOLA.
These are two appeals from decrees of the
district court of the United States for the southern
district of Florida condemning two fishing vessels
and their cargoes as prize of war.
Each vessel was a fishing smack, running in and
out of Havana, and regularly engaged in fishing
on the coast of Cuba; sailed under the Spanish
flag; was owned by a Spanish subject of Cuban
birth, living in the city of Havana; was
commanded by a subject of Spain, also residing
in Havana; and her master and crew had no
interest in the vessel, but were entitled to shares,
amounting in all to two thirds, of her catch, the
other third belonging to her owner. Her cargo
consisted of fresh fish, caught by her crew from
the sea, put on board as they were caught, and
kept and sold alive. Until stopped by the
blockading squadron she had no knowledge of
the existence of the war or of any blockade. She
had no arms or ammunition on board, and made
on attempt to run the blockade after she knew of
its existence, nor any resistance at the time of
the capture.
The Paquete Habana was a sloop, 43 feet long on
the keel, *679 and of 25 tons burden, and had a
crew of three Cubans, including the master, who
had a fishing license from the Spanish
government, and no other commission or license.
She left Havana March 25, 1898; sailed along the
coast of Cuba to Cape San Antonio, at the
western end of the island, and there fished for
twenty-five days, lying between the reefs off the
cape, within the territorial waters of Spain; and
then started back for Havana, with a cargo of
about 40 quintals of live fish. On April 25, 1898,
about 2 miles off Mariel, and 11 miles from
Havana, she was captured by the United States
gunboat Castine.
The Lola was a schooner, 51 feet long on the
keel, and of 35 tons burden, and had a crew of six
Cubans, including the master, and no commission
or license. She left Havana April 11, 1898, and
proceeded to Campeachy sound, off Yucatan,
fished there eight days, and started back for
Havana with a cargo of about 10,000 pounds of
live fish. On April 26, 1898, near Havana, she was
stopped by the United States steamship
Cincinnati, and was warned not to go into
Havana, but was told that she would be allowed
to land at Bahia Honda. She then changed her
course, and putfor Bahia Honda, but on the next
morning, when near that port, was captured by
the United States steamship Dolphin.
Both the fishing vessels were brought by their
captors into Key West. A libel for the
condemnation of each vessel and her cargo as
prize of war was there filed on April 27, 1898; a
claim was interposed by her master on behalf of
himself and the other members of the crew, and
of her owner; evidence was taken, showing the
facts above stated; and on May 30, 1898, a final
decree of condemnation and sale was entered,
‘the court not being satisfied that as a matter of
law, without any ordinance, treaty, or
proclamation, fishing vessels of this class are
exempt from seizure.’
Each vessel was thereupon sold by auction; the
Paquete Habana for the sum of $490; and the
Lola for the sum of $800. There was no other
evidence in the record of the value of either
vessel or of her cargo.
WHETHER, UPON THE FACTS APPEARING IN
THESE RECORDS, THE FISHING SMACKS
WERE SUBJECT TO CAPTURE BY THE ARMED
VESSELS OF THE UNITED STATES DURING
THE RECENT WAR WITH SPAIN.
By an ancient usage among civilized nations,
beginning centuries ago, and gradually ripening
into a rule of international law, COAST FISHING
VESSELS, PURSUING THEIR VOCATION OF
CATCHING AND BRINGING IN FRESH FISH,
HAVE BEEN RECOGNIZED AS EXEMPT, WITH
THEIR CARGOES AND CREWS, FROM
CAPTURE AS PRIZE OF WAR.
This doctrine, however, has been earnestly
contested at the bar; and no complete collection
of the instances illustrating it is to be found, so
far as we are aware, in a single published work
although many are referred to and discussed by
the writers on international law, notable in 2
Ortolan, Régles Internationales et Diplomatie de
la Mer (4th ed.) lib. 3, chap. 2, pp. 51-56; in 4
Calvo, Droit International (5th ed.) §§ 2367-2373;
in De Boeck, Propriété Privée Ennemie sous
Pavillon Ennemi, §§ 191-196; and in Hall,
International Law (4th ed.) § 148. It is therefore
worth the while to trace the history of the
rule, from the earliest accessible sources,
through the increasing recognition of it,
with occasional setbacks, to what we may
now justly consider as its final
establishment in our own country and
generally throughout the civilized world.
INTERNATIONAL LAW IS PART OF OUR LAW,
AND MUST BE ASCERTAINED AND
ADMINISTERED BY THE COURTS OF JUSTICE
OF APPROPRIATE JURISDICTION AS OFTEN
AS QUESTIONS OF RIGHT DEPENDING UPON
IT ARE DULY PRESENTED FOR THEIR
DETERMINATION. For this purpose, WHERE
THERE IS NO TREATY AND NO CONTROLLING
EXECUTIVE OR LEGISLATIVE ACT OR
JUDICIAL DECISION, RESORT MUST BE HAD
TO THE CUSTOMS AND USAGES OF
EIVILIZED NATIONS, AND, AS EVIDENCE OF
THESE, TO THE WORKS OF JURISTS AND
COMMENTATORS WHO BY YEARS OF LABOR,
RESEARCH, AND EXPERIENCE HAVE MADE
THEMSELVES PECULIARLY WELL
ACQUAINTED WITH THE SUBJECTS OF WHICH
THEY TREAT. Such works are resorted to by
judicial tribunals, not for the speculations of their
authors concerning what the law ought to be, but
for trustworthy evidence of what the law really
is.
This review of the precedents and authorities on
the subject appears to us abundantly to
demonstrate that at the present day, by the
general consent of the civilized nations of the
world, and independently of any express treaty or
other public act, it is an established rule of
international law, founded on
considerations of humanity to a poor and
industrious order of men, and of the mutual
convenience of belligerent states, that
coast fishing vessels, with their implements
and supplies, cargoes and crews, unarmed
and honestly pursuing their peaceful calling
of catching and bringing in fresh fish, are
exempt from capture as prize of war.
This rule of international law is one which prize
courts administering the law of nations are bound
to take judicial notice of, and to give effect to, in
the absence of any treaty or other public act of
their own government in relation to the matter.
‘Undoubtedly no single nation can change
the law of the sea. The law is of universal
obligation and no statute of one or two
nations can create obligations for the
world. Like all the laws of nations, it rests
upon the common consent of civilized
communities. It is of force, not because it was
prescribed by any superior power, but because it
has been generally accepted as a rule of conduct.
Whatever may have been its origin, whether in
the usages of navigation, or in the ordinances of
maritime states, or in both, it has become the law
of the sea only by the concurrent sanction of
those nations who may be said to constitute the
commercial world. Many of the usages which
prevail, and which have the force of law,
doubtless originated in the positive prescriptions
of some single state, which were at first of limited
effect, but which, when generally accepted,
became of universal obligation.’ ‘This is not
giving to the statutes of any nation
extraterritorial effect. It is not treating them as
general maritime laws; but it is recognition of the
historical fact that by common consent of
mankind these rules have been acquiesced in as
of general obligation. Of that fact, we think, we
may take judicial notice. Foreign municipal laws
*712 must indeed be proved as facts, but it is not
so with the law of nations.’