684
i n t e r nat i o na l l aw
Further restrictions upon the
Filartiga
doctrine have also been man-
ifested. It has, for example, been held that the Alien Tort Claims Act
does not constitute an exception to the principle of sovereign immunity
so that a foreign state could not be sued,
189
while it has also been held
that US citizens could not sue for violations of the law of nations under
the Act.
190
In
Sanchez-Espinoza
v.
Reagan
,
191
suit was brought against a variety of
present and former US executive officials for violation
inter alia
of domes-
tic and international law with regard to the US support of the ‘Contra’
guerrillas fighting against the Nicaraguan government. The Alien Tort
Claims Act was cited, but the Court of Appeals noted that the statute ar-
guably only covered private, non-governmental acts that violated a treaty
or customary international law and, relying on
Tel-Oren
, pointed out
that customary international law did not cover private conduct ‘of this
sort’.
192
Thus the claim for damages could only be sustained to the extent
that the defendants acted in an official capacity and, even if the Alien
Tort Claims Act applied to official state acts, the doctrine of domestic
sovereign immunity precluded the claim. In
Kadi´c
v.
Karadˇzi´c
,
193
the US
Court of Appeals emphasised the ‘liability of private persons for certain
violations of customary international law and the availability of the Alien
Tort Act to remedy such violations’.
194
In particular, it was noted that the
proscription of genocide and war crimes and other violations of inter-
national humanitarian law applied to both state and non-state actors,
although torture and summary execution (when not perpetrated in the
course of genocide or war crimes) were proscribed by international law
only when committed by state officials or under colour of law.
195
Even
in this case, it may be that all that was required was ‘the semblance of
official authority’ rather than establishing statehood under the formal
criteria of international law.
196
The Court also held that the Torture Vic-
tim Protection Act 1992, which provides a cause of action for torture and
extrajudicial killing by an individual ‘under actual or apparent author-
ity, or colour of law, of any foreign nation’, was not itself a jurisdictional
statute and depended upon the establishment of jurisdiction under either
189
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