“The material to which I have referred in this judgment leaves
it open for a jury to conclude that Mr Zardad was a de facto
public official in an area which was totally controlled by HezbI-Islami and controlled by them with a degree of permanence.
There is no evidence to show that at any material time the
central government exercised any governmental function over
the area controlled by Hezb-I-Islami. Such evidence as there is
tends to show that Hezb-I-Islami had total control of the area
in question. There is evidence that the Hezb-I-Islami faction
exercised functions which could be functions of a state
authority.” (at para 35)
US authorities
66.
The appellant relies on a number of US authorities concerning the Alien Tort
Claims Act (“ATCA”). First, reliance is placed on certain passages in the judgment
of Chief Judge Newman in Kadic v Karadzic (above). The plaintiffs sought remedies
against Karadzic, the president of a three-man presidency of the self-proclaimed
Bosnian-Serb Republic of Srpska in respect of alleged atrocities including torture
committed in Bosnia-Herzegovina. The complaints alleged that Karadzic acted in
an official capacity, either as titular head of Srpska or in collaboration with the
government of the recognised nation of the former Yugoslavia. Subject matter
jurisdiction was grounded, inter alia, in ATCA and the Torture Victim Protection
Act of 1991 (“TVPA”). A motion for dismissal succeeded in the District Court, inter
alia, on the ground of lack of subject matter jurisdiction. The Court of Appeals
considered that the requirement of ATCA that the tort be “committed in violation of
the law of nations” was satisfied. With regard to torture, the Court of Appeals
observed, at p 243:
“However, torture and summary execution - when not
perpetrated in the course of genocide or war crimes - are
proscribed by international law only when committed by state
officials or under color of law.”
and then recited the definition in article 1, UNCAT. In a passage cited earlier in this
judgment at para 56 the Court of Appeals held that the proscription of official torture
applied without distinction to both recognised and non-recognised States and
continued, at p 245:
“Appellants’ allegations entitle them to prove that Karadzic’s
regime satisfies the criteria for a state, for purposes of those
international law violations requiring state action. Srpska is
Page 32
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents