Torture

• Pages: 45-46

45

international law update Volume 18, April–June 2012

© 2012 Transnational Law Associates, LLC. All rights reserved. ISSN 1089-5450, ISSN 1943-1287 (on-line) | www.internationallawupdate.com

“First, the district court interpreted 18

U.S.C. § 1651 as an unequivocal demonstration

of congressional intent ‘to incorporate . . . any

subsequent developments in the denition of

general piracy under the law of nations.’ Hasan I,

747 F. Supp. 2d at 623. e court rationalized:

“’e plain language of 18 U.S.C. § 1651 reveals

that, in choosing to dene the international crime of

piracy by [reference to the ‘law of nations’], Congress

made a conscious decision to adopt a exible—

but at all times suciently precise—denition of

general piracy that would automatically incorporate

developing international norms regarding piracy.

Accordingly, Congress necessarily left it to the

federal courts to determine the denition of piracy

under the law of nations based on the international

consensus at the time of the alleged oense.’ […]”

“’Having concluded that Congress’s proscription

of ‘piracy as dened by the law of nations’ in 18

U.S.C. § 1651 necessarily incorporates modern

developments in international law,’ the district court

next endeavored to ‘discern the denition of piracy

under the law of nations at the time of the alleged

oense in April 2010.’ Hasan I, 747 F. Supp. 2d at

630. In so doing, the court observed that the law of

nations is ascertained today via the same path followed

in 1820 by the Supreme Court in Smith: consultation

of ‘‘the works of jurists, writing professedly on public

law[s];’‘ consideration of ‘‘the general usage and

practice of nations;’‘ and contemplation of ‘‘judicial

decisions recognising and enforcing that law.’‘ See

Hasan I, 747 F. Supp. 2d at 630 … […]”

“On appeal, the defendants maintain that the

district court erred with respect to Count One

both by misinstructing the jury on the elements of

the piracy oense, and in refusing to award post-

trial judgments of acquittal. Each aspect of the

defendants’ position obliges us to assess whether the

court took a mistaken view of 18 U.S.C. § 1651 and

the incorporated law of nations. …”

“Simply put, we agree with the conception of

the law outlined by the court below. Indeed, we

have carefully considered the defendants’ appellate

contentions … yet remain convinced of the

correctness of the trial court’s analysis.”

“e crux of the defendants’ position is now,

as it was in the district court, that the denition

of general piracy was xed in the early Nineteenth

Century, when Congress passed the Act of 1819 rst

authorizing the exercise of universal jurisdiction by

United States courts to adjudicate charges of ‘piracy

as dened by the law of nations.’ …”

“e defendants’ view is thoroughly refuted,

however, by a bevy of precedent, including the

Supreme Court’s 2004 decision in Sosa v. Alvarez-

Machain. … e Sosa Court was called upon to

determine whether Alvarez could recover under the

Alien Tort Statute, 28 U.S.C. § 1350 (the ‘ATS’),

for the U.S. Drug Enforcement Administration’s

instigation of his abduction from Mexico for criminal

trial in the United States. See 542 U.S. at 697. e

ATS provides, in full, that ‘[t]he 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. Signicantly, the ATS predates the

criminalization of general piracy, in that it was passed

by ‘[t]he rst Congress . . . as part of the Judiciary

Act of 1789.’ …” [Slip op. 21-38]

e district court correctly applied the

UNCLOS denition of piracy as customary

international law. e Court therefore arms the

Defendants’ piracy convictions, as well as their

mandatory life sentences.

In fact, the Court is issuing a per curiam opinion

in conjunction with this opinion, vacating the Said

opinion, and remanding for further proceedings.

citation: United States v. Dire, No. 11-4310 (4th

Cir. 2012).

TORTURE

Supreme Court affirms lower courts’

findings that a claim under the Torture

Victims Protection Act can only be

asserted against a natural person, not

an organization

Azzam Rahim immigrated to the United States

in the 1970’s and became a naturalized citizen. In

1995, he visited the West Bank and was arrested

by Palestinian Authority intelligence ocers.

He was taken to prison and was imprisoned,

tortured, and ultimately killed. e Next year,

the U.S. Department of State issued a report that

concluded that Rahim died in the custody of the

Palestinian Authority intelligence ocers in Jericho.