Tort Liability for Human Rights Abuses

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Overview

Celebrated U.S. law professor George Fletcher challenges the community of international lawyers to think again about how they can use the Alien Tort Statute, advancing a bold theory of the relevance of tort law in the fight against human rights abuses. Beginning with an historical analysis, Fletcher shows how tort and criminal law originally evolved to deal with similar problems, how tort came to be seen as primarily concerned with negligence, and how the Alien Tort Statute has helped establish the importance of tort law in international cases. In a series of cases starting with Filartiga and culminating most recently in Sosa, Fletcher shows how torture cases led to the reawakening of the Alien Tort Statute, changing U.S. law, and giving legal practitioners a tool with which to assist victims of torture and other extreme human rights abuses. This leads to an examination of Agent Orange and the possible commission of war crimes in the course of its utilization, and the theory of liability for aiding and abetting the American military and other military forces when they commit war crimes. The book concludes by looking at the cutting edge cases in this area, particularly those involving liability for funding terrorism, and the remedies available, particularly the potential offered by the compensation chamber in the International Criminal Court.
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Product Details

  • ISBN-13: 9781841137940
  • Publisher: Intl Specialized Book Service Inc
  • Publication date: 7/31/2008
  • Edition description: New Edition
  • Pages: 214
  • Product dimensions: 5.30 (w) x 8.30 (h) x 0.50 (d)

Table of Contents

Introduction: The New Rights 1

1 Rights for Humans 1

2 Universal Jurisdiction 4

3 Acquiring Jurisdiction over the Person 15

4 The Basic Elements of the ATCA 17

5 A Preview of the Argument 25

1 A Comparative Analysis of Tort Law 27

1 The Original 'Ticking Bomb' Case 30

2 The Attempt to Reconcile Trespass and Case 37

3 The 'Birth' of Strict Liability 39

4 Proximate Cause: The Last Gasp of Trespass 45

5 Comparative Analysis 53

6 If Criminal, Tort Follows 57

7 Punitive Damages 58

2 The Paradigm of Efficiency 67

1 The Transition from Negative to Positive Efficiency 69

2 From Negative of Positive Efficiency: Once More 73

3 The Implications of Cost-Benefit Analysis 79

3 Reciprocity 85

1 Private Law, not Public Law 87

2 The Dispute about Contributory and Comparative Negligence 91

3 Excusing Risks 95

4 Critique of Reciprocity 103

4 The Paradigm of Aggression 105

1 The Passive Victim 108

2 Interaction as the Alternative 110

5 Torture as Aggression 115

1 Filartiga: The Pivotal Decision 115

2 The Oddities of Torture 117

3 Torture in the Context of Armed Conflict 121

4 An Affirmative Account of Torture 123

5 The Element of State Action 125

6 Karad&zbreve;ić Completes the Cycle 127

7 Torts as Domination 128

6 The Jurisprudence of Sosa 133

1 The Abduction, and Losing in the Supreme Court 133

2 Winning in the Supreme Court 135

3 Discretionary Development of the ATCA 144

4 Reconstructing the Sosa Opinion 153

5 Discretion and Specificity 157

7 The Liability of Accessories 161

1 The Nature of Complicity 164

2 The Khulumani Case 168

8 Concluding Theses 173

Appendix One ATCA Cases Cited in thePreceding Text in the Order they were Cited 177

Appendix Two Additional ATCA-related Cases not Cited in the Text 185

Index 199

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