When world leaders gathered in New York last autumn for the Millennium summit at the end of 2000, they expected all of the meetings, speeches, and handshakes that are customary elements of diplomatic practice — but several leaders got something that they did not expect: a summons to appear before U.S. courts to account for crimes committed in their homelands. Li Peng, former Chinese premier, and Robert Mugabe, president of Zimbabwe, were both served with court papers for cases brought by victims. Both faced accusations that they ordered massive human rights violations, including torture and extrajudicial killing. In recent months, the stream of lawsuits has grown even stronger. East Timorese plaintiffs are suing the former chief of staff of the Indonesian armed forces, General Johny Lumintang, in a District of Columbia federal court. The lawsuit accuses him of masterminding attacks on the population of East Timor, in violation of international human rights law.

The legal foundation for the lawsuits against these leaders stems from a little known but increasingly relevant law called the Alien Tort Claims Act, which was passed by the first U.S. Congress in 1789. The Act gives U.S. federal courts jurisdiction over "any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." The statute can be read to give U.S. courts jurisdiction over non-criminal abuses that occur anywhere in the world, so long as the alleged wrong would violate international law.

The law lay hidden in the books — and was largely unused — until1978, when a Paraguayan man named Dr. Joel Filartiga heard from a group of Paraguayan immigrants in Brooklyn, New York that the policeman who tortured to death his 17-year-old son was in the United States. Eager to ensure that his son’s killer faced justice, Filartiga sought help from the New York-based Center for Constitutional Rights. The center dug up the 200-year old statute, which allowed Filartiga to file suit against the torturer in New York District Court. Labeling torturers "enemies of all mankind", the Court of Appeals for the Second Circuit eventually allowed the suit to go forward even though the alleged violation took place in Paraguay and involved only Paraguayan citizens. The Filartigas were eventually awarded $10 million. Unfortunately, the Filartigas were never able to collect damages, and U.S. immigration officials deported the Paraguayan officer.

The new interpretation of the Alien Tort statute opened U.S. courts to plaintiffs who previously would have found the way blocked by jurisdictional requirements. Before Filartiga, foreigners whose human rights were violated abroad had little hope of being awarded compensation in the U.S. An assortment of new plaintiffs has sought to make use of the Filartiga ruling. Philippine nationals sued the family of ex-dictator Ferdinand Marcos for acts of torture carried out during his rule. An Ethiopian victim sued his torturer and won a large judgment. A group of Guatemalan peasants successfully sued the country’s former defense minister, whom they accused of complicity in torture and extrajudicial killings. Unable to get a hearing in Japan, a group of Chinese men forced into labor during the Second World War recently filed suit in the U.S. Plaintiffs relying on the Alien Tort statute have also sued major multinational corporations for alleged complicity in human rights and environmental violations.

Just weeks before Li Peng and Robert Mugabe were served, a group of women who had been raped in Bosnia concluded their case against Bosnian Serb leader Radovan Karadzic and were awarded a multi-million dollar settlement by a Manhattan jury.

The eventual outcome of the new lawsuits and the payment of the Karadzic judgment are uncertain at best. But the trend is clear. Individuals and groups dissatisfied with political pressure alone are increasingly resorting to what may be termed "plaintiff’s diplomacy." United States courts have become frequent (if sometimes reluctant) participants in the global campaign against human rights abuses.

For plaintiffs seeking compensation, and for the networks of activists and lawyers who support them, it is not only the broad jurisdictional reach of the Alien Tort statute that makes U.S. courts attractive. Pursuing claims in the U.S. offers several other advantages. The jury system, the class action mechanism, and the availability of punitive damages all enhance the chances of winning large judgments. Perhaps most important, a lawsuit in the U.S. provides a forum for the exposure of human rights violations abroad which might otherwise attract little attention.

The Filartiga decision, it is important to note, has not made suing on human rights grounds an easy task. In particular, the courts have not allowed Alien Tort claims to trump the legal immunity that is traditionally granted to foreign states and their leaders. In an important 1989 decision, the Supreme Court rejected the notion that a plaintiff could bypass the protection of sovereign immunity and sue a foreign government or a sitting foreign leader directly under the Alien Tort statute — a precedent that makes the Mugabe case very unlikely to succeed. (Indeed, on March 4, the U.S. government provisionally granted Mugabe head of state immunity.) Using a similar line of reasoning, federal courts threw out lawsuits against the Saudi Arabian government for torture, and against President Jean-Bertrand Aristide of Haiti for extrajudicial killing. The courts have also ruled that plaintiffs can only sue defendants who venture onto U.S. soil. This requirement effectively immunizes many perpetrators, who know better than to tempt fate by visiting the US.

To the surprise of some observers, however, the Supreme Court has declined to actually overturn the Filartiga precedent. And recent developments like those in New York indicate that it remains a potent weapon for human rights groups. The New York-based Center for Constitutional Rights, which helped bring the Li Peng suit, has been particularly active in pursing Alien Tort claims. The Center organized the case against Radovan Karadzic and has recently helped bring cases against multinational corporations for violations of labor, environmental and human rights.

To date, the impact of these cases has probably been greater in theory than in practice. The ruling opened U.S. courts to a very small group of foreign plaintiffs: those victims able to identify and serve process on violators of human rights not protected by sovereign immunity, yet capable of committing a violation of international law. Filartiga and its progeny have thus created an opening too narrow to fit lawsuits against those most responsible for human rights violations abroad. Nor is it clear that plaintiffs who win judgments will ever see the money. Most of the judgments that have been entered remain unpaid. One of the few cases in which plaintiffs have collected was against Cuba, for the shooting down of two civilian planes. Some in Congress have supported relaxing the rules so that plaintiffs may more easily seize foreign assets, but the Clinton Administration resisted moves in that direction, which it feared would undermine the safety of U.S. assets abroad. The Bush administration has yet to indicate its policy on this question but seems likely to support the rights of plaintiffs to collect, particularly against states that support terrorism.

For the moment then, the principal benefit of the Alien Tort suits for plaintiffs may be the publicity they can generate. A suit brought in the U.S. is likely to capture the attention of the U.S. government and international media. In the case of the lawsuits based on Holocaust-era crimes, publicity has been essential. Lawsuits against Swiss banks and German corporations generated so much attention that the U.S. government felt obliged to intervene; Deputy Treasury Secretary Stuart Eizenstat was instrumental in negotiating billion-dollar settlements in both cases. The fact that several of the lawsuits ultimately were thrown out by the courts was not decisive. By that time, public and political pressure made settlement inevitable. Plaintiffs hope that a new wave of lawsuits against Japan for abuses during the Second World War will generate similar pressure on Japanese authorities and industry to settle. But the Holocaust suits point to one of the paradoxes of the Alien Tort phenomenon: the lawsuits are far more effective against liberal democracies, sensitive to the pressures of world public opinion, than they are against the repressive regimes who pose the greatest threat to human rights today.

It is unlikely that civil litigation in U.S. courts will, in the long run, represent an effective means of deterring or punishing massive human rights abuses. Nor is the phenomenon free of danger. For U.S. courts adjudicating disputes about violations abroad, there is the danger of politicization. For U.S. diplomats, lawsuits may hamper and complicate the negotiations and diplomatic initiatives that arguably hold out the best hope for long-term change. Finally, a growing international role for U.S. courts may generate a backlash abroad–even among U.S. allies–that would not be helpful to the cause of human rights. Through skeptical eyes, it appears that the U.S. is eager to haul foreign defendants into its own courts, while at the same time opposing any initiative, like an International Criminal Court, that poses even a minimal danger to American citizens.

From another perspective, however, the Alien Tort suits serve important goals. They provide a forum for victims who have often endured long years of silent suffering to tell the world of the wrongs done to them. And they serve notice on foreign human rights violators that they cannot visit the United States with impunity.

Beyond their significance for individual litigants, these suits are also part of an important trend in international law. Increasingly, national courts are becoming involved in global issues. At the same time, states are creating new international tribunals and granting new powers to established international courts. The result is an increasingly complex transnational justice system, in which international, national and regional courts interact and overlap. Management of this complex system to defend fundamental values will be one of the great challenges ahead.