THE LONG ARM OF UNITED STATES LAW IN WARTIME: POTENTIAL UKRAINIAN SUITS FOR RUSSIAN ATROCITIES

Abstract

This article makes a legal argument that Ukrainian victims of Russia’s war of aggression can sue for damages in U.S. courts. The extraterritorial reach of the Alien Tort Claims Act enables noncitizens to seek redress for harm caused by violations of treaty or customary law. Russian forces in Ukraine have violated the 1907 Hague Convention and the Nuremberg precedent. The U.S. Supreme Court, like the British House of Lords, takes exception to International Court of Justice doctrine that says high officials of a foreign state enjoy absolute sovereign immunity. The I.C.J. rule does not protect most sub-cabinet officials. The Foreign Sovereign Immunity Act recognizes immunity of a foreign state but not its officials at any level, and never in a “terrorism” case. Ukraine’s president asked Washington to designate Russia as a terrorist state, which would allow Ukrainians having certain U.S. connections to sue the the Russian Federation. Even without a “terrorism” finding, the Alien Tort Claims Act lets any injured Ukrainians sue individual Russians for violations of the law of war. Assets held in the U.S. or U.K. by defendants found liable may be subject to seizure and used to satisfy civil judgments in wartime cases.