So, somehow today, I got engaged in a discussion about the Filartiga vs. Pena-Irala case. From there, we got to discussing the jurisdiction of US federal courts over other kinds of individuals guilty of violating international customary law, and, particularly, who is responsible in some cases of such violations when the state is presumably involved.
For example, if Pena-Irala was a volunteer police officer instead of a government official, would it still be considered state-sponsored in a legal sense? Does the “state-sponsored” part affect jurisdiction at all? My friend argued that it was so, but I wasn’t completely sure, as it seems if it hinges on customary law (even in the 1980s) then it doesn’t really seem to make a difference whether or not it is state-sponsored.
Then again, neither of us are lawyers.
This also made me wonder, what specifically is a government agent in an international, legal sense? Is it only someone employed by the government? Or can it be a volunteer? In a more local sense, is a private investigator hired by a police force considered to carry all the legal responsibilities of the police? If he tortures someone in an effort to elicit information, are the police liable either by negligence or by willful ignorance?
Hmmm. Maybe these are questions too big to answer in a SDMB post, but some outlines or cites would be welcome to help fight our ignorance. Thanks.
An agent is a person who can make decisions that bind another party (the government, an insurance company or even another person).
What is a government agent will have a large number of answers depending on the legal context.
However, in the world of the Alien Tort Claims Act, which was the basis for jurisdiction of Filartiga, I believe the relevant question is whether the action was undertaken under the “color of law” (or the “color of official authority”, as the case itself refers to it).
For torture and other civil rights violations, the question is whether the violation took place with official sanction from the government at issue. If a government official, in executing his office, tortures someone, this action is squarely within the “color of law.” That’s an easy case. If someone is a volunteer police officer, that 's also pretty easy, as a police officer, paid or not, will be considered to be acting under “color of law” when exercising his police authority granted by the government.
An investigator hired by the government who tortures in connection with his assignment would likely also be held to be acting under “color of law.” Similarly, a volunteer informant acting under government instructions will probably be held to be acting under “color of law.” The more interesting cases are when individuals are acting in looser collaboration with the police, or the police are fairly actively letting private individuals torture or otherwise violate people’s rights.