Date of publication: June 21, 2001
Source: New York Times
By WILLIAM GLABERSON
Last year, five Chinese natives sued the former Chinese prime minister, Li Peng, in an American court for his role in the Tiananmen Square crackdown that killed hundreds of civilians in Beijing.
While visiting the United Nations in September, President Robert Mugabe of Zimbabwe was served with a civil suit saying he ordered killings, torture and terrorism in his country and seeking $400 million in damages.
In Brooklyn, a federal judge is considering legal claims of Canadians and Israelis in addition to Americans against a French railroad that transported people to Nazi death camps.
Those and many other kinds of cases reflect the growing use of the American legal system to judge rights and wrongs all over the globe.
The trend, which began in the mid- 1980's and has been accelerating in recent years, is strongest in human rights cases. But it extends to other areas of the law, like business claims under American antitrust, securities and racketeering laws and criminal prosecutions of foreign terrorists captured
abroad.
"The cold war paradigm was the United States as global policeman," said Gregory J. Wallance, a lawyer at the international law firm, Kaye Scholer in New York, who has written about the trend. "The post-cold- war paradigm is the United States as global attorney."
Some of the cases are essentially symbolic, ending in huge civil verdicts that may never be collected. But others have led to criminal charges here, large civil settlements, or financial recoveries drawn from foreign property held in the United States.
There is some resentment over expansion of American legal power, but because many of the cases relate to human rights' claims, critics have had difficulty drawing attention to their concerns.
American lawyers have cast a wide net. Among others who have been sued in this country are the former President Slobodan Milosevic of Yugoslavia, the Islamic Republic of Iran, the Prince of Wales and former Prime Minister Margaret Thatcher of Britain.
The expansion of American legal power has been explained in recent years as the natural outgrowth of an interconnected world. But lately, some lawyers and legal scholars have begun to argue that the cases represent a sweeping change that is transforming American courts into institutions with international sway.
"What we are exporting now, just as Britain did in the 19th century, is our conception of law" said Burt Neuborne, a law professor at New York University. Last week, a federal judge awarded Mr. Neuborne $4.4 million in legal fees for his work on a series of cases against German companies and the German government by people forced into slave labor by the Third Reich.
A few American lawyers have made millions on the international lawsuits, while others are handling the cases largely to make human rights or political statements.
Some major legal changes have involved terrorism abroad. Laws passed by Congress in recent years and international treaties signed since the 1970's have expanded the powers of American courts to try terrorism cases.
A federal jury in Manhattan is hearing evidence in deciding the fate of a Tanzanian in the bombing of the American Embassy in Dar es Salaam, killing 11 people. The jury last week rejected the death penalty for a Saudi in the bombing of the American Embassy in Nairobi, Kenya, killing 213 people.
The United States used treaty provisions that require countries to "prosecute or extradite" terrorism suspects to bring some of the defendants in the embassy bombings to this country.
The fact that American prosecutors tried the case is one sign of the changing views on international prosecution, several legal experts said. Historically, criminal prosecutions were mounted most often where the crimes occurred. In 1986, Italian courts convicted four Palestinian gunmen who had hijacked the Italian cruise ship Achille Lauro off the Egyptian coast and killed an
American, Leon Klinghoffer.
One reason for the change is "a much more expansive notion of U.S. prerogatives to protect its interests," said Ruth G. Wedgwood, an international law specialist at Yale.
One example of the new legal thinking was legislation passed by Congress in 1996, which for the first time permitted lawsuits in American courts against countries that the United States listed as sponsoring terrorism. Libya, Cuba and Iran are on the list. Before that, such suits were generally barred by American rules that protect governments from lawsuits in United States courts.
In February, the Treasury Department authorized the release of $96.7 million from Cuban assets frozen in the United States. The money went to the families of three Miami-based pilots who were shot down by Cuban fighter jets in 1996. The families of the pilots, who were members of the Cuban exile group Brothers to the Rescue, had sued the Cuban government in federal court in
Miami under the 1996 law.
Americans have always been able to sue foreign individuals who were in this country. But before a landmark ruling of a federal appeals court in New York in 1980, American courts were reluctant to get involved in disputes between foreigners involving events in other countries.
In the 1980 decision, the United States Court of Appeals for the Second Circuit said a seldom-used law dating of 1789 authorized foreigners to sue other foreigners in this country when they claimed violations of international legal norms, like rules against murder or torture.
The 1980 case involved a lawsuit by a Paraguayan doctor against a former police official who, the court found, has tortured and killed the 17- year-old son of the doctor, who was a Paraguayan opposition leader.
Since then there have been dozens of other suits under the 1789 law, the Alien Tort Claims Act. And in the last few years cases have sought increasingly larger damage awards, said Jennifer M. Green, a lawyer at the Center for Constitutional Rights in New York, which is handling many of
the cases.
Last year, a jury in federal court in Manhattan ordered Radovan Karadzic, the former Bosnian Serb leader, to pay $4.5 billion in damages to people who were raped, tortured and killed in the Balkan conflict.
The scope of American judicial expansion is not limited to terrorism and human rights cases. American antitrust prosecutors have successfully argued that groupings of international companies are subject to American rules prohibiting collusive agreements to set prices even if only one member of the cartel sells products in this country.
Under such rules, executives from Belgium, Britain, Italy, Japan, the Netherlands and other countries have been convicted in American courts. The Clinton administration began a push to prosecute international price fixing, and the Bush administration is expected to continue that drive.
But globalism means there are two sides to such expansive notions. European regulators have started to apply their own laws to American businesses. Skepticism by European regulators has stalled several recent mergers by American companies, including General Electric's planned $45 billion acquisition of Honeywell International.
Some courts refuse to get involved in foreign matters. American courts declined, for example, to hear lawsuits against the Prince of Wales and former Prime Minister Thatcher, which claimed they had violated human rights in Northern Ireland and Libya.
But American courts are increasingly willing to stretch their authority. Among the cases that opened the door was a Supreme Court ruling in 1992 that said a Mexican charged with killing an American drug enforcement agent could be tried in this country even though agents had kidnapped him from Mexico.
Similarly, in 1991, a federal appeals court in Washington approved the trial of a man who federal prosecutors said was a Lebanese militia official, Fawaz Yunis, who was charged with hijacking a Jordanian plane in Beirut and was arrested while on a yacht in the Mediterranean.
These cases are a far cry, some lawyers say, from a New York federal court's refusal in 1987 to consider the multibillion-dollar lawsuits against the Union Carbide Corporation over the Bhopal chemical disaster in India.
In addition to court rulings, American legal values are also exported informally, Mr. Wallance of Kaye Scholer argued in an article last year. As an example he cited boycotts of clothing brands manufactured in countries that do not comply with American workplace rules.
So far, criticism of expanding ambitions of the American legal system has been muted. But some foreign governments have said they are offended by suits in this country, and some American legal experts warn that the United States is opening what could be a dangerous legal competition with other countries.
Other countries are already trying to expand the influence of their legal rules or to fight off the influence of America's legal system. Some European countries are resisting a proposed international agreement in The Hague that would make it easier to enforce judgments of American courts abroad.
If American diplomats and executives become entangled in lawsuits in other countries, the United States might start to view its legal expansionism in a different light, said Curtis A. Bradley, a law professor at the University of Virginia.
In early June, a Chilean judge said he would try to get Henry A. Kissinger, the former United States secretary of state, to testify about the disappearance of an American in Chile when the dictator Augusto Pinochet seized power in the 1970's.
Jack L. Goldsmith, a law professor at the University of Chicago, said Americans have not considered the consequences of applying this country's law all over the world.
"The United States loves to export our values," Mr. Goldsmith said, "but not if it gives other countries the power to review what we do."