160
i n t e r nat i o na l l aw
defendant despite the fact that both parties were alien and all the opera-
tive acts occurred in Paraguay. The Court also noted that in ascertaining
the content of international law, the contemporary rules and principles
of international law were to be interpreted and not those as of the date
of the prescribing statute.
160
Other cases came before the courts in which
the incorporation of international customary law provisions concerning
human rights issues was argued with mixed success.
161
An attempt to
obtain a judgment in the US against the Republic of Argentina for tortur-
ing its own citizens, however, ultimately foundered upon the doctrine of
sovereign immunity,
162
while it has been held that acts of ‘international
terrorism’ are not actionable under the Alien Tort Claims Act.
163
In
Kadi´c
v.
Karadˇzi´c
,
164
the US Court of Appeals for the Second Circuit held that
claims based on official torture and summary executions did not exhaust
the list of actions that may be covered by the Alien Tort Claims Act and that
allegations of genocide, war crimes and other violations of international
humanitarian law would also be covered.
165
However, in
Sosa
v.
Alvarez-
Machain
,
166
the Supreme Court held that the Alien Tort Claims Act was a
jurisdictional statute creating no new causes of action and enacted on the
understanding that the common law would provide a cause of action for
160
630 F.2d 876, 881 (1980); 77 ILR, pp. 169, 175. See also
Amerada Hess
v.
Argentine Republic
830 F.2d 421; 79 ILR, p. 1. The norms of international law were to be found by ‘consulting
the works of jurists, writing professedly on public law; or by the general usage and practice
of nations; or by judicial decisions recognising and enforcing that law’, 630 F.2d 876, 880;
77 ILR, p. 174, quoting
United States
v.
Smith
18 US (5 Wheat.), 153, 160–1. See also
Kadi´c
v.
Karadˇzi´c
34 ILM, 1995, p. 1592.
161
See e.g.
Fernandez
v.
Wilkinson
505 F.Supp. 787 (1980) and
In re Alien Children Education
Litigation
501 F.Supp. 544 (1980).
162
Siderman
v.
Republic of Argentina
, No. CV 82-1772-RMT (MCx) and
International Prac-
titioner’s Notebook
, July 1985, p. 1. See also below, chapter 13.
163
Tel-Oren
v.
Libyan Arab Republic
517 F.Supp. 542 (1981),
aff ’d per curiam
, 726 F.2d 774
(1984),
cert. denied
53 USLW 3612 (1985); 77 ILR, p. 192. See e.g. A. D’Amato, ‘What
Does
Tel-Oren
Tell Lawyers?’, 79 AJIL, 1985, p. 92. See also
De Sanchez
v.
Banco Central de
Nicaragua
770 F.2d 1385, 1398 (1985); 88 ILR, pp. 75, 90 and
Linder
v.
Portocarrero
747
F.Supp. 1452; 99 ILR, p. 55.
164
34 ILM, 1995, p. 1592.
165
Note that the US Torture Victim Protection Act 1992 provides a cause of action for
official torture and extrajudicial killing where an individual, under actual or apparent
authority or colour of law of any foreign law subjects, engages in such activities. This is
not a jurisdictional statute, so that claims of official torture will be pursued under the
jurisdiction conferred by the Alien Tort Claims Act or under the general federal question
jurisdiction of section 1331: see e.g.
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