¹ In an article published in 1987, Vice President George Bush said that the action upon “selected targets in Libya” was “taken in retaliation against Libyan-sponsored attacks on Americans, particularly the Libyan-organized bombing of a Berlin nightclub several days earlier.” Bush, Prelude to Retaliation: Building a Governmental Consensus Against Terrorism, SAIS Rev., Winter-Spring 1987, at 1.

² As of this writing, the United States has not released any evidence challenging the position of West Berlin and the Federal Republic.

³ 28 U.S.C. §1346(b) (1982). The Act contains sovereign immunity exceptions for acts of United States officials that involve the exercise of discretion, that arise from combatant activities in time of war, and that arise in a foreign country. 28 U.S.C. §2680(a), (j) and (k). Arguably, the claimed negligence negates the discretion exception, the fact that the United States was not at war with Libya negates the wartime exception, and the fact that the decisions were made in the United States and that only their operative effect occurred abroad negates the foreign-country exception. The latter argument has been characterized as “headquarters claims.” See Beattie v. United States, 617 F.2d 91, 96–97 (D.C. Cir. 1979); Vogelaar v. United States, 665 F.Supp. 1295, 1300–02 (E.D. Mich. 1987).

In addition, the plaintiffs invoked the Foreign Claims Act, 10 U.S.C. §2734. The Act’s regulations require the Air Force to “[p]ay claims arising from accident or malfunction of aircraft operations, including airborne ordnance, occurring while preparing for, going to, or returning from a combat mission.” 32 C.F.R. §842.64(m).

⁴ The United Kingdom and its head of government, Margaret Thatcher, were named as co-conspirators in planning and carrying out the attack upon Libya for allowing U.S. planes headed for Libya to take off from U.S. bases in the United Kingdom and to fly over the airspace of the United Kingdom.

⁵ Saltany v. Reagan, 702 F.Supp. 319 (D.D.C. 1988).

⁶ Saltany v. Reagan, 886 F.2d 438 (D.C. Cir. 1989). Only defendant United Kingdom cross-appealed from the denial of sanctions by the district court. The court of appeals reversed, and imposed sanctions on counsel for the plaintiffs consisting of the costs and attorneys’ fees of the United Kingdom.

⁷ 702 F.Supp. at 322. The district court did not impose sanctions; it said that the case is not so much frivolous as it is audacious. The court of appeals, however, cited the finding below that the case offered no hope whatsoever of success, and held that such a finding necessitated a Rule 11 violation.

⁸ Fed. R. Civ. P. 11.

⁹ Annex to the Convention, Regulations respecting the Laws and Customs of War on Land, Art. 25, Convention (No. IV) respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, TS No. 539, 205 Parry’s TS 277.

¹⁰ The Nurnberg Trial, 6 F.R.D. 69, 130 (1946). Under Article 6(a) of the Charter of the International Military Tribunal at Nuremberg, Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 59 Stat. 1544, 3 Bevans 1238, 82 UNTS 279, the term “war crime” is defined to include “murder”; Article 6(c) defines the term “crime against humanity” to include “murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population.”

It is hardly a defense to argue that war crimes can only be committed during wartime, and that the United States and Libya were not at war in 1986. Since Nuremberg, and especially since the Far East trials where the memory of the “sneak attack” by Japan on Pearl Harbor colored the entire proceedings, it has been clear that war crimes are acts of war irrespective of whether there has been a formal declaration of war. Indeed, the failure of the United States to announce that a state of war existed between it and Libya—as well as the failure to give notice to the inhabitants of Tripoli and Benghazi that they were about to be bombed—could itself be a violation of the Hague Convention relative to the Opening of Hostilities (No. III), Oct. 18, 1907, 36 Stat. 2259, TS No. 538, 205 Parry’s TS 263.

¹¹ To be sure, the complaint is in tort; the Saltany case is no criminal or military proceeding. Yet traditional tort doctrine allows for the recovery of damages for harm inflicted in violation of criminal law.

¹² Article 7 of the Charter of the International Military Tribunal at Nuremberg, supra note 10, is typical: “The official position of defendants, whether as heads of state, or responsible officials in government departments, shall not be considered as freeing them from responsibility, or mitigating punishment.” See 6 F.R.D. at 110. Although many of the defendants explicitly claimed sovereign immunity at their trials, these claims were rejected by the tribunals in every case.

¹³ 327 U.S. 1 (1946). The Yamashita trial before the U.S. military commission is reported in 4 United Nations War Crimes Commission, Law Reports of Trials of War Criminals 1 (1948).

¹⁴ 4 United Nations War Crimes Commission, supra note 13. For a conceptual analysis, see D’Amato, Superior Orders vs. Command Responsibility, 80 AJIL 604 (1986); Levie, Some Comments on Professor D’Amato’s “Paradox,” 80 AJIL 608 (1986).

¹⁵ See 327 U.S. at 30 (Murphy, J., dissenting, calling this a “noxious doctrine”).

¹⁶ 327 U.S. at 14–16.

¹⁷ Id. at 16.

¹⁸ Id. at 23. For elaboration and analysis of this point, see D’Amato, Gould & Woods, War Crimes and Vietnam: The “Nuremberg Defense” and the Military Service Resister, 57 Calif. L. Rev. 1055, 1072–73 (1969), reprinted in 3 The Vietnam War and International Law 407 (R. Falk ed. 1972). Cf. Switkes v. Laird, 316 F.Supp. 358 (S.D.N.Y. 1970).

¹⁹ 6 U.S. (2 Cranch) 170 (1804).

²⁰ In Little v. Barreme, the President acted without congressional authority. Similarly, the raid on Libya was ordered by President Reagan in his capacity as commander in chief, without leave of Congress.

²¹ Little v. Barreme remains unimpeached in its authority. See Youngstown Steel & Tube Co. v. Sawyer, 343 U.S. 579, 661 (1951); Butz v. Economou, 438 U.S. 478, 490 (1978).

²² Other nations refused requests from the United States to participate in the attack or permit aircraft to fly over their territory for that purpose.

²³ 109 S.Ct. 683 (1989).

²⁴ 28 U.S.C. §§1330, 1602–11 (1982) [hereinafter FSIA].

²⁵ 109 S.Ct. at 688.

²⁶ The quoted language from Amerada Hess is a holding with respect to the application of the Alien Tort Statute, but a dictum with respect to other issues not characterized by the facts before the Supreme Court.

²⁷ A war crime is qualitatively different from the violation of a typical international rule of law. International customary law typically is subject to free derogation by nations that enter into a treaty to act differently. Moreover, international customary law has traditionally allowed sovereign immunity as a defense to domestic litigation against foreign governmental action in alleged violation of that customary law. In this latter respect, Amerada Hess is a traditional case well within the contemplation of Congress in enacting the FSIA (Amerada Hess was innovative only with respect to its holding on the Alien Tort Claims Act, a separate issue).

²⁸ See 28 U.S.C. §1602 (“Under international law, states are not immune from the jurisdiction of foreign courts insofar as their commercial activities are concerned …”). Congress enacted the FSIA to allow United States courts to take full advantage of this restrictive view of sovereign immunity under international law.