Empty Justice

Early this month Li Peng, China’s former prime minister and the man responsible for the 1989 Tiananmen Square massacre, was summoned to appear before a federal court in New York to answer for his misdeeds. Two months earlier, the same court ordered former Bosnian Serb leader Radovan Karadzic, wanted on a warrant from a war crimes tribunal, to pay $745 million in damages to victims of rape and torture in Bosnia and Croatia. There is little chance the victims in either case will ever see a penny, but that doesn’t discourage human rights campaigners. For them the publicity that such suits generate and the symbolic value of the judgments are justice enough.

But tying up U.S. courts in politically motivated lawsuits leading to empty or symbolic judgments is not the wisest use of the country’s judicial system. These cases raise problems of judicial overreach that even U.S. allies criticize, and they can interfere with the conduct of U.S. foreign policy. The next Congress should clearly define the limits of litigation.

Nongovernmental diplomacy is a fairly recent development, aided by new interpretations of a long-forgotten 1789 law, the Alien Tort Claims Act, which was originally devised to combat piracy. In the early 1980s, the claims act was interpreted to allow foreigners to bring civil lawsuits for human rights violations even if they were committed outside the United States against non-Americans.

That opened the floodgate for suits by victims of torture around the globe, including in the Philippines, Ethiopia, Guatemala, Bosnia and China, as well as for claims for environmental damage. The defendants in such cases--served with a summons on a U.S. visit or notified in newspapers abroad--are not only former dictators or lesser hoodlums but corporations and even governments. Royal Dutch Shell, for example, was sued in New York by a group of Nigerian activists for alleged complicity in the 1995 execution of the writer Ken Saro-Wiwa and others at the hands of a military dictator.

Clearly, few people sympathize with the likes of Karadzic, whose name is linked to unspeakable cruelty committed against Bosnian Muslims. But he remains holed up somewhere in Bosnia, and the court that issued the judgment has no way of enforcing it. It’s little more than a feather in the cap of the human rights groups that filed the lawsuit.

While foreigners are being hauled before U.S. courts in growing numbers, the U.S. government is opposed to having others judge Americans and, through litigation abroad, dictate U.S. policy. The idea that U.S. citizens--NATO soldiers, for example--should be tried abroad is the main reason why Washington refuses to take part in the permanent U.N. International Criminal Court now being formed. Even U.S. allies resent the double standard the United States seems to apply.

Congress, rather than the courts, is in the right position to balance the legitimate interests of individuals against the long-term interests of U.S. diplomacy.