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Distant Genocides

Written by  Pierre N. Leval

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I am deeply honored to be invited to deliver the Leslie H. Arps Memorial Lecture. I never met Les Arps, but I understand we had a kinship of trial by fire. We both worked as young lawyers for the great, and not easily pleased, Henry Friendly. By all that I have heard, Les Arps was an extraordinary lawyer, a distinguished public servant, a mensch. And what a spectacular achievement to have been one of the progenitors of the great Skadden Arps firm. I will speak on two subjects. The first does not exist. The second may be about to disappear. This may therefore be the most useless talk of all time.

Both of my subjects concern a private, civil suit by which a plaintiff seeks redress for atrocities in violation of the law of nations committed in another nation—a nation where the plaintiff cannot get justice because the abusing regime remains in power. By a private, civil suit, I mean a suit that seeks only a private, civil remedy, such as money damages in compensation for personal injury, and does not seek imprisonment, fine, or any sort of criminal punishment.

My first subject is such a suit in the courts of any nation other than the United States. There is little to talk about because, so far as I am aware, no other nation’s courts will entertain such a suit. My second subject is such a suit in the courts of the United States. Federal courts in the United States have had statutory authority to entertain a private suit claiming compensation for a tort in violation of the law of nations since the birth of the nation, and for the last thirty years, suits of this nature seeking compensation for atrocities committed in other nations have flourished. However, the authority of the federal courts to entertain such a suit may perish in the current Supreme Court term—in large part because such suits have not been authorized elsewhere in the world.

So why do I waste your time on something so unimportant that it scarcely exists? I hope you will join me in the belief that it is not unimportant. Where it does not exist, it should exist. And where it does exist, it should remain.