Kadic v. Karadzic


70 F.3rd 232 (2nd Cir. 1995), Rehearing Denied, 74 F.3rd 377 (2nd Cir. 1996) Cert. Denied 518 U.S. 1005 (1996).


    Appellants' allegations that Karadzic personally planned and ordered a campaign of murder, rape, forced impregnation, and other forms of torture designed to destroy the religious and ethnic groups of Bosnian Muslims and Bosnian Croats clearly state a violation of the international law norm proscribing genocide, regardless of whether Karadzic acted under color of law or as a private individual. The District Court has subject-matter jurisdiction over these claims pursuant to the Alien Tort Act.

    (b) War crimes. Plaintiffs also contend that the acts of murder, rape, torture, and arbitrary detention of civilians, committed in the course of hostilities, violate the law of war. Atrocities of the types alleged here have long been recognized in international law as violations of the law of war. See In re Yamashita, 327 U.S. 1, 14, 66 S.Ct. 340, 347, 90 L.Ed. 499 (1946). Moreover, international law imposes an affirmative duty on military commanders to take appropriate measures within their power to control troops under their command for the prevention of such atrocities. Id. at 15-16, 66 S.Ct. at 347-48.

    After the Second World War, the law of war was codified in the four Geneva Conventions, which have been ratified by more than 180 nations, including the United States, see Treaties in Force, supra, at 398-99. Common article 3, which is substantially identical in each of the four Conventions, applies to "armed conflict[s] not of an international character" and binds "each Party to the conflict ... to apply, as a minimum, the following provisions":

Persons taking no active part in the hostilities ... shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular humiliating and degrading treatment;

(d) the passing of sentences and carrying out of executions without previous judgment pronounced by a regularly constituted court....

Geneva Convention I art. 3(1).

    Thus, under the law of war as codified in the Geneva Conventions, all "parties" to a conflict--which includes insurgent military groups--are obliged to adhere to these most fundamental requirements of the law of war.

    The offenses alleged by the appellants, if proved, would violate the most fundamental norms of the law of war embodied in common article 3, which binds parties to internal conflicts regardless of whether they are recognized nations or roving hordes of insurgents. The liability of private individuals for committing war crimes has been recognized since World War I and was confirmed at Nuremberg after World War II, see Telford Taylor, Nuremberg Trials: War Crimes and International Law, 450 Int'l Conciliation 304 (April 1949) (collecting cases), and remains today an important aspect of international law, see Jordan Paust, After My Lai: The Case for War Crimes Jurisdiction Over Civilians in Federal District Courts, in 4 The Vietnam War and International Law 447 (R.Falk ed., 1976). The District Court has jurisdiction pursuant to the Alien Tort Act over appellants' claims of war crimes and other violations of international humanitarian law.

(Footnotes omitted).