One of the fundamental rules of jurisprudence generally is engendered in the principle of stare decisis which literally translates to “let the decision stand” (Banks, 2015). The principle provides that two cases in the same jurisdiction which have the same facts should upon hearing elicit the same holding. It is on this basis that case law from courts of record is cited in other cases to support arguments and holdings (Banks, 2015). There are however, instances where two similar cases seem to arrive at different decision. This could emanate from an error on the part of the analyzing party, a misunderstanding of the particular law, different interpretations of the law, and even judicial error (Banks, 2015).
The two instant cases; Almog v . Arab Bank, 471 F. Supp. 2d 257 (2007) and Saperstein v. The Palestinian Authority (Saperstein) regard a single line statute referred to as the Alien Tort Statute (ATS) 28 U.S.C. § 1350 (Stephen, 2015). It was once part of the Judiciary Act of 1789, but the statute now stands on its own and has been the subject of several District Court cases in the USA with varying holdings. This research paper ventures into the premise for the discrepancy in the holding in Almog and Saperstein above, despite the congruencies in the causes of action.
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Briefs
Almog v. Arab Bank, 471 F. Supp. 2d 257 (2007)
Facts of the case
The case was brought against Arab Bank by several plaintiffs, a majority of who were American citizens who sued on the basis of the Anti-Terrorism Act (ATA). However, many of the plaintiffs were non-American citizens and therefore barred from suing under the ATA. They, therefore, invoked the jurisdiction of the court vide the ATS. The cause of action was the allegation that the defendant as a banking institution aided and abetted Palestinian organizations that had already been proscribed in the USA for acts of terrorism. This organization had over a period of time committed acts of genocide and murder against the citizens of Israel. The plaintiffs, therefore, wanted the defendant held liable for the aforesaid crimes from the perspective of tort, due to the part they played in funding the genocidal activities.
The ATS angle
The ATS is purely a jurisdictional Act and is, therefore, limited to the technical issue of the jurisdiction of the court. The Defendants raised a preliminary objection against the cases filed specifically by non-American plaintiffs who had relied on the ATS. The argument by the defendant was that the court lacked the jurisdiction to entertain the suit under the ATS on the grounds that the allegations raised by the plaintiffs have never found interpretation under the ATS in the USA. To understand this preliminary objection, it is important to delve into the particulars of the ATS. As indicated, the ATS is a jurisdictional law and only applies to give the court jurisdiction in matters where foreigners feel their private law rights have been violated under international law and/or under a treaty under which the USA is member (Stephen, 2015).
This creates three basic ingredients for ATS jurisdiction. First, the claimant needs to be a foreigner but lawfully in the USA (Stephen, 2015). Secondly, the claim should be for damages for a tort committed and the cause of action must have emanated from a violation of a law of nations and/or a treaty under which America is a member v. The plaintiffs were legal aliens thus satisfying the first ingredient. They sought damages for a tort thus satisfying the second, and the third one involved the cause of action, to wit genocide not having been defined under the ATS or applied in any case under ATS jurisprudence.
After the preliminary objection was canvassed, the court held that it had jurisdiction to handle the matter under the ATS. This was premised on the fact that albeit the genocide had not been defined as a violation of the law of nations under the ATS, it was recognized as a crime under the law of nations under American laws. It was, therefore, not practicable to limit an act on jurisdiction based on only definitions that were made as and when the act was enacted. The golden rule of interpretation, which looks at the spirit behind the law was, therefore, applied.
Saperstein v. The Palestinian Authority
Facts of the case
The instant suit was launched by the plaintiff, the first of whom was an American citizen who sued under local laws while the second and third defendants were aliens suing under the ATS. The Defendants, top among them being the Palestinian authority (PA) and the Palestine Liberation Organization (PLO) were organizations recognized by the American government as having the de facto albeit not de jure control of the Gaza area and other areas in Palestine. It is, therefore, worthy of notice that these organizations were themselves proscribed by the American government or the international community. The cause of action arose from charges of terrorism. The plaintiffs alleged that the defendants allowed, abetted, and encouraged acts of terror, against the nation of Israel whose acts had resulted in murder and wanton destruction of properties.
The ATS Angle
The Defendants raised a preliminary objection on the issue of personal jurisdiction of the court on the subject matter premised on the ATS. However, due to some technicalities relating to the capacity of the Defendant’s attorney to practice in the state of Florida, the preliminary objection was ever ventilated. Further, the Plaintiffs obtained default judgment before the defendants could resolve their representation issue. However, the matter of the ATS was eventually canvassed after the substantive part of the suit had progressed. The defendants argued that the court did not have personal jurisdiction to entertain the matter purely based on the fact that the allegations made entailed a private act by an individual.
This private act could, therefore, not be defined as a violation of international law under which the ATS had been applied. In its holding, the court agreed with the defendants and dismissed the case against the plaintiffs to the extent that it was premised on the ATS. The premises of the dismissal however was premised on the fact that the acts complained of had been undertaken by individuals in their individual capacities and could therefore not fall under violations of international law.
Discussion on the bases for the differences in holding between the two cases
As indicated hereinabove, the principle of stare decisis provides that two cases with similar facts should when tried in a similar jurisdiction lead to a similar holding (Banks, 2015). The case of Almog and the case of Saperstein have several congruencies but are not similar. However, it is easy when looking at them to consider them similar more so based on the merits of the case. Indeed, in the Saperstein case, on the issue of merits of the case from the perspective of the law of torts, the defendants seem to be more liable than the defendants in Almog. Indeed, the Arab Bank sued by Almog could easily rely on the defence that it was a bona fide trading company unaware practicing the trade of banking and was not involved in the violations of its customers. On the other part, the Defendants in Saperstein had indeed admitted from to the allegations made to them pertaining to terrorism.
However, it is important to note that the issue in question here is not the merits of the cases, which are indeed similar. The issue in question regards the technical issue of the jurisdiction of the court under the jurisdictional statue ATS. Within this statute, it is only the third ingredient thereof, to wit whether the acts and omissions creating the alleged tort amounted to a violation of international law that was being canvassed. This is the only issue that need to be similar in the two cases for the matters to be adjudged as similar and therefore falling under the ambit if stare decisis.
A careful perusal of the facts of the case will show that the acts and omissions alleged in Almog were committed by several rogue organizations, which had been proscribed internationally and locally. Secondly they entailed genocide. Genocide is defined as the deliberate killing of a large group of people premised on a certain cultural or ethic classification (Young, 2015). From a practical perspective, it is impossible for genocide to be undertaken unless there is a well-organized group with a concerted effort. This is among the basic ingredients that make genocide an international crime.
With regard to the Saperstein case, the Defendants were not proscribed organizations and were indeed recognized as being in control of a substantive section of Palestine. Further, there was no exact pointer group closely associated to any of the defendants that had committed the acts and omissions that had been alleged to create the cause of action in the case. Indeed, by their very definition as presented by the plaintiffs, these acts that were alleged to amount to terrorism had been performed by individuals not groups.
The main point of connection between the defendants and these acts were that the defendants gave money to families of alleged perpetrators who had been arrested in Israel. All these particulars created the impression that the alleged acts of terror were perpetrated by individuals and not groups. This was the main difference between the allegations in the two cases. One set was genocide committee by proscribed groups alleged to be associated with the defendant in the Almog case. In the Saperstein case, the acts were alleged to be committed by individuals not groups, these individuals were in a way related to the defendants from an individual’s capacity.
The Terrorism verses Genocide Angle
Both terrorism and genocide are crimes that are actionable under international law as tort violations. Indeed, had the associates of Arab Bank been accused of terrorism, the ruling of the court would still be similar as the charge of violation of international law would still have applied. This is because the international law violation ingredient considered in Almog was that the violations were committed by well-coordinated groups against individuals. When a government or a well-organized group attacks an individual or individuals through a frontal attack such as the massacres of Rwanda or a gas attack such as a biological attack, then that is a violation of international law (Stephen, 2015). However, when it is an act of an individual or a set of individuals acting severally not jointly, then the result does not qualify for a violation of international law. It is simply criminal conduct. Therefore, the courts did not canvas over the differences between terrorism and genocide but the issue of a crime committed by an individual and that done by a group.
Conclusion
The upshot of the foregoing is that the age honored rule of stare decisis was not infringed upon either by any of the district courts in the cases of Almog and Saperstein respectively. This is because the two cases were similar in merit but the issue of preliminary objections on the ATS act only had congruencies but was not similar. The two courts ruled on the issue of the basic ingredients of international law violations as presented by the two plaintiffs from the perspective of the ATS. The set of facts, presented albeit not yet proven through trial tended towards a clearly case of international law violations. The set of facts alleged in Saperstein as presented even without being tried referred to individual acts of terror, and these are not international violations as defined under common law. It is on this points that the cases were different hence the different rulings.
References
Banks, C. P. (2015). Reversals of precedent and judicial policy-making: How judicial conceptions of stare decisis in the US Supreme Court influence social change. Akron Law Review , 32 (2), 1-24.
Stephens, B. (2015). 32 The Alien Tort Statute, Kiobel, and the struggle for human rights Accountability. In For the Sake of Present and Future Generations (pp. 533-547). Leiden: Brill.
Young, E. A. (2015). Universal jurisdiction, the Alien Tort Statute, and transnational public-law litigation after Kiobel. Duke Law Journal, 64,1023-1127
