What Is Torture as per the Yefgeni Brothers - Assignment Example

Memorandum Assignment Number: Lecturer: MEMORANDUM Senior Research Fellow ................................ ................................... RE: Remedies for Torture I. Issues 1. What is torture as per the Yefgeni brothers and what law creates it? 2. Can foreign citizens seek a civil action in the US courts where the claim is based on torture? 3. Does the US courts create a distinction between a corporate and a natural person as the plaintiff? 4. Can the individuals, in this case the Yefgenis, seek a criminal prosecution at international law for the acts of torture? II. Answer 1. In our application for Amicus Curiae, and considering acts of torture such as those committed by Arkady, against Boris Yefgeni and his brotherYuri Yefgeni , we can conclude that we have a substantive case. 2. Under the ATCA, US courts have jurisdiction to prosecute this case the result in restitution from damages. The US courts have jurisdiction over customary.The US courts have jurisdiction to arrest any for the purpose of preferring charges and or attach his properties. Acts committed and abetted by state agents are actionable under ATCA. 3. The court, however, has jurisdiction to prefer charges on individuals and not corporate bodies or governments. 4. They can seek sue at international as has been allowed by agencies like the UN under the UN Charter for international crimes, especially those committed by corporate. III. Statement of the facts Torture is defined as any act by which a severe pain or suffering, whether physical or mental, is intentionally inflicted upon a person with an intention of obtaining information or a confession from him or a third person. It may be inflicted or at the behest of public official on any other person acting in an official capacity. In the United States (US), Alien Tort Statute or Alien Tort Claims Act (ATCA) creates the law that deals with crimes committed against foreigners residing in the US. Under international law, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment1, is created by the Charter of the United Nations. Non-US can bring action in a civil court in the US for tort so long as the offences in the violations are against the law of nations or a treaty of the US even f committed outside the US. The law, ATCA, through subsequent interpretation by the courts, has drawn the line on who an action can be brought against2. The law limits itself to action against a natural person and not a corporation. The same individuals can seek a criminal prosecution in Geneva under the UN Charter at the International Court of Justice at Geneva Switzerland. As we are seeking to be enjoined in this matter, we have weighed many options that we have and arrived at the conclusion that the matter is substantive. Our research on many authorities resulted in a number of authorizes that we are going to consider in this paper. The Alien Tort Statute, to begin with, was originally enacted as section 9 of the Judiciary Act of 17893. The US Congress, in its wisdom, wanted to give powers to the federal courts involving international issues, before experienced judges. Its jurisdiction was given that resulted in the definition of a tort within the meaning of ATS. The suits have to be serious violations of international law such as terrorism, state-sponsored torture and extra-judicial killings, crimes against humanity, war crimes, and genocide. The action has to be brought against an individual who is either residing in the US or found within its bounds. This act grants the district court jurisdiction over any civil action by a non-Us citizen for tort only, that it deems as has been committed against the law nations or a treaty of the US. The law had never been used before 1980 when the US Court of Appeals for the Second Circuit heard an appeal brought before it. The law was uncertain in its original meaning and the purpose. In the 1980, a matter was brought before it as Filartiga v. Pena-Irala4. The merits will be discussed shortly in the discussion section. In 2003, another case Sosa v. Alvarez-Machain5, was brought before the US Supreme Court. The last but not least is Kiobel v. Royal Dutch Petroleum6 of 2011. All these three authority cases have three different dimensions that we are going to consider in the discussion section. On the international front, the UN adopted the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. In its treaty at the 39th session, the UN General Assembly adopted, ratified and did an accession in the 10the December 1984. The treaty came into force in 26th June 1987 after the signing by the UN member countries, in accordance with Article 27 (1). It defines torture as any act by which severe pain or suffering, whether mental or physical, is intentionally inflicted on a person for purposes obtaining from hi or a third party information or a confession. It is intended to punish him for an act he or a third party has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind. Such a pain or suffering is inflicted by or other person acting in an official capacity. It doesn’t include pain or suffering arising from only inherent in or incidental to lawful sanctions. This definition raises four conditions which must be met. They are; i) it must be intentional, ii) it must cause severe pain or suffering, iii) intended to achieve purposes mentioned above to obtain information iv) It must be done by or with the acquiescence of s public official7. The meanings will be discussed shortly. Discussion Torture In our hypothetical case, Boris Yefgeni and his brotherYuri Yefgeni, suffered torture in the hands of Russian State agents under Arkady Ivanov. They were tortured both physically and mentally for over two weeks with an intention of extracting information from them. Russian agents wanted them to admit their participation in anti-Russian protests and eventual ouster of the Ukraine president Viktor Yanukovych. The Russian State agents also wanted to know which Western States were directly involving in arming protesters. After being released from the conclusion that they had no direct involvement, they fled eventually landing in the US. They found jobs in a New York hotel where one day as they were at work Arkady checked in as a guest. Their quest for justice for the arrest and prosecution of Arkady started after meeting an attorney who told them that there was a good chance, with success, to file a suit. They suit was also to include Baltic Beverages Holding and Carlsberg Group as facilitators where they were abducted and whisked away to torture chambers. The attorney promised also to contact an individual at the US Department of State for the purpose of bringing such matter before an international body. In this case, according to us, torture existed causing suffering to the Yefgeni brothers by state agents under Russian Foreign Intelligence Service, the SVR. The case can be tried in the US courts and ultimately a conviction or a fine be imposed on Arkady. The international law, on the other hand will come in handy in placing sanctions against Russian authorities as it is beyond the US. Arkady can be arrested when still in the US and charges spelt out under the ATS can be preferred. The form of torture that they suffered falls within the meaning of torture under this piece of legislation. Russian authorities also can be sanctioned alongside Baltic Beverages Holdings and Carlsberg Group and probably, their property can be attached to compensate the two for damages. The ATS can only try individuals in the US soil. Court’s jurisdiction As mentioned above the US courts right from the district level to the supreme have jurisdiction over Yefgeni brothers’ type case. Arkady was in the US soil and the court has the powers to order for his arrest and prosecution. ATS has clearly defined the conditions which include an alien residing in the United States against an individual who was acting in an official capacity. He caused torture on the brothers who are currently residing in the US and he is in the US himself. The court will accept a civil action against Arkady within the meaning of ATS as intended by the US Congress. In the case of Filartiga v. Pena-Irala, a precedent is clearly brought out very well about the extent of personal responsibility by an individual acting in an official capacity. Pena-Irala while being a police inspector General in Paraguay, torture was meted against Joelito Filartiga after being kidnapped. The family, while under asylum in the US, learned of the presence of Pena in the US they reported the matter to the authorities leading to his arrest. He was charged to torture and eventual death of Joelito under the police hands, which he was the boss. Alongside, Center for Constitutional Rights, the family asked for $10 million in damages. The initial district court dismissed the matter citing precedents limiting the functions of international law to the relationship between states. But, on appeal, the circuit held that freedom from torture was guaranteed under international customary law. Pena’s actions had amounted to violation of wrongful death statutes, the UN Charter, the Universal Declaration of Human Rights8, the American Declaration of Rights and Duties of Man, and other customary international law. From this case, the US federal; courts can clearly punish non-American citizens for acts of torture committed outside the US, so long as it is in violation of public international law. It extends to the treaties in which the US is a party and has been committed around the world so long as those bringing the charges are aliens and those who committed are within the boundary of the US. In the matter of Sosa v. Alvarez-Machain, a special agent was kidnapped and murdered by Mexican drug cartel in 1985. After an investigation, it was concluded that Humberto Alvarez-Machain had participated in the murder. A warrant of arrest was issued by a district court and as it was impossible to arrest him, agents were hired to capture and bring him back to the US. His trial was appealed all the way to the US Supreme Court which found that the government could not try an individual who had been forcibly abducted. The abduction itself might violate international law hence might lead to civil suit. Alvarez was, therefore, found not guilty for lack of evidence. Distinction The ATS has sought, in subsequent adjudication, to distinguish cases against individuals and corporate for their perceived participation in committing or abetting crimes. A dramatic increase in litigation has been witnessed against corporate defendants under the ATS. A typical case alleges a corporate involvement in abetting crimes conduct that violates international law in countries outside the US. Sometimes agents of some corporations are alleged to have engaged in wrongful acts directly or the corporate itself aided and abetted these wrongful conducts by foreign governments. ATS dates back to 1789, but litigations have been only witnessed in the last three decades. If and when a corporation was the defendant, courts assumed generally, that corporate liability was accepted under ATS. The US Supreme Court differed in Kiobel v. Royal Dutch Petroleum. In the Second Circuit matter in Kiobel v. Royal Dutch Petroleum, the plaintiffs were Nigerian citizens. They claimed that British, Dutch and Nigerian oil corporations aided and abetted the Nigerian government in the 90s in committing violations of customary law. They claimed the Royal Dutch Shell compelled its subsidiary in Nigeria to cooperate with the government to brutally crash peaceful resistance to aggressive oil development in Ogoni Niger Delta. They sought damages under ATS. The defendants dismissed by claiming that customary international law does not include non-state actors and no norm between nations imposes liability on corporate actors. The district court dismissed the matter reasoning that customary international law did not define those violations sufficiently as to bring out the corporate liability. The court denied plaintiffs’ motion of corporate liability in abetting crimes against humanity, arbitrary detention, torture and human degrading treatment. The matter was referred to Second Circuit in the US Court of Appeals which held that corporations cannot be held liable for violation of international customary law. It found out that both the US Supreme Court and Second Circuit precedents over the last three decades, the scope of liability is determined by customary international law and that ATS only applies norms of international law to determine liability9. International law This law is implemented in the UN system through human rights treaty bodies. They include Human rights Committee, the Committee Against Torture, and the Subcommittee on the Prevention of Torture and other Cruel, inhuman or Degrading Treatment or Punishment. Still, the UN Human Rights Council’s special procedure can investigate and report on any allegations of torture. The Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, for example, is authorized to examine questions on torture in all UN Member States through urgent appeals, visits or reporting. There are individual complaints mechanisms available in enforcement for regional human rights tribunals. Governments are required to take measures to prevent and punish torture and many states criminalize torture in their national law. The Geneva Conventions and Conventions against Torture obligate states to either extradite or prosecute those responsible for torture. Government can exercise jurisdiction to prosecute those responsible for torture. IV. Conclusion In conclusion, we think that the US courts will find that we have a substantive case within the meaning of ATS and that this case will result in the compensation for the victims of torture like Yefgenis. They suffered and therefore must get reparation. The US district courts, however, have only jurisdiction to try cases for acts of torture committed by individuals acting in official capacities. So long as such individuals had power in their hands to prevent such acts of torture, their liability will therefore, not ne limited in any way. The US courts do not have any jurisdiction under ATS to try cases brought before it, against corporate bodies. The ATS only limits itself to natural persons. Such cases dealing with corporate bodies can better be handled through international law that have conventions ratified by countries. Read More