Nuremberg's Legacy Continues: The Nuremberg Trials' Influencing on Human Rights Litigation in U.S. Courts under the Alien Tort Statute
![handle is hein.journals/albany71 and id is 323 raw text is: NUREMBERG'S LEGACY CONTINUES: THE NUREMBERG
TRIALS' INFLUENCE ON HUMAN RIGHTS LITIGATION IN U.S.
COURTS UNDER THE ALIEN TORT STATUTE
Gwynne Skinner*
I. INTRODUCTION
In March of 2005, four Palestinian families and the parents of
Rachel Corrie,I an American, filed a lawsuit against Caterpillar,
Inc.2 under the Alien Tort Statute (ATS)3 and general federal
* Visiting Clinical Professor of Law, Seattle University School of Law. M.St. (LL.M.
equivalent) International Human Rights Law, Oxford, expected 2007; J.D. with High
Distinction, University of Iowa, 1991; M.A. (American Studies) University of Iowa, 1993; B.A.,
Political Science, University of Northern Iowa, 1986 (summa cum laude). This Article was
initially drafted for presentation at a conference titled The Nuremberg War Crimes Trial and
Its Policy Consequences Today, sponsored by the University of Toledo College of Law and
Bowling Green State University, October 6-7, 2006.
1 Rachel Corrie was a young American woman who the Israel Defense Forces (ID1') ran
over and killed with a Caterpillar bulldozer while she was protecting a home from an illegal
demolition in the Occupied Palestinian Territory (OPT'). Complaint at 1, 12, 14, Corrie v.
Caterpillar, Inc., 403 F. Supp. 2d 1019 (W.D. Wash. 2005) (No. C05-5192FDB) [hereinafter
Come Complaint]; Corrie v. Caterpillar, Inc., 403 F. Supp. 2d 1019, 1022-23 (W.D. Wash.
2005), aff'd, 503 F.3d 974 (9th Cir. 2007) (affirmed on political question basis).
2 The Plaintiffs are not able to sue the IDF or Israel in U.S. courts because of the Foreign
Sovereign Immunities Act. 28 U.S.C. §§ 1602-1611 (2000 & Supp. IV 2004).
3 28 U.S.C. § 1350 (2000). This provision has also been referred to as the Alien Tort
Claims Act (ATCA). Flores v. S. Peru Copper Corp., 414 F.3d 233, 236 & n.1 (2d Cir. 2003).
The statute allows non-citizens to bring claims for certain human rights violations, even if
such violations occur abroad. The statute reads, The district courts shall have original
jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of
nations or a treaty of the United States. 28 U.S.C. § 1350. The law of nations is generally
equated with customary international law. Flores, 414 F.3d at 237 n.2 (In the context of
the ATCA, we have consistently used the term 'customary international law' as a synonym for
the term the 'law of nations.'); see also Kadic v. Karad2i6, 70 F.3d 232, 239 (2d Cir. 1995);
Filartiga v. Pena-Irala, 630 F.2d 876, 884 (2d Cir. 1980).
Typically, claims under the ATS are for violations of the law of nations (as opposed to
treaties) because under U.S. law, claims can only be brought pursuant to a treaty if the treaty
is self-executing (which the U.S. considers few human rights treaties to be), or where specific
legislation has been passed creating a cause of action under a treaty, such as the passage of
the Torture Victim Protection Act in 1991. See Torture Victim Protection Act of 1991, Pub. L.
No. 102-256, 106 Stat. 73 (1992) (codified at 28 U.S.C. § 1350 note (2000)); 1 RESTATEMENT
(THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 111 (1987); see also Foster v.
Neilson, 27 U.S. (2 Pet.) 253, 314 (1829) (discussing self-operating treaties as opposed to those
executed by legislative acts), overruled in part on other grounds, United States v. Percheman,](ViewImageLocal?handle=hein.journals/albany71&div=11&collection=&method=preview&ext=.png&size=3)
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