The Volokh Conspiracy

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Volokh Conspiracy

Croatian-Serb war offenses litigated under Illinois and Virginia conversion/trespass tort law


Plaintiffs sued "MPRI, a military contractor run by former United States military and intelligence officers," for its supposed role in helping train (and otherwise logistically assist) the Croatian military for a 1995 ethnic cleansing operation against Serbs in Krajina. The lawsuit was filed in U.S. District Court in Illinois. See Jovic v. L-3 Services (N.D. Ill. decided Sept. 24, 2014, but just noted Friday in the Westlaw Bulletin).

The district judge rejected plaintiffs' Alien Tort Statute claim, on the grounds that the statute presumptively doesn't apply to conduct outside the United States and that this presumption wasn't rebutted here. It also rejected any common-law claim based on ethnic cleansing as such.

But the judge held that plaintiffs could go forward with their claims—under Illinois and Virginia law—of conspiracy to engage in conversion (i.e., theft of property) and trespass to land:

Although Plaintiffs have failed to state a claim for conspiracy based upon assertions of forced population transfer, they also have alleged that Croatian forces, in addition to shooting and killing countless Serbian civilians, systematically looted and destroyed Serbian-owned homes, businesses, crops and livestock in the Krajina region, including those owned by the named Plaintiffs. Many of these homes subsequently were expropriated by the Croatian military. Based upon these and other allegations made in the Third Amended Complaint, the Court concludes that Plaintiffs have sufficiently asserted claims for civil conspiracy to commit trespass to land and conversion.

The court also concludes that plaintiffs might be able to show—later in the litigation process, after discovery—that the statute of limitations doesn't apply here, and that the "act of state" doctrine (which immunizes certain behavior authorized by a foreign state) doesn't apply, either.

Oddly, the defendants didn't seem to argue that Croatian law, rather than Illinois or Virginia law, should apply here:

The parties assume that either Illinois or Virginia law applies to the conspiracy claims and have not addressed which state's law should apply. Furthermore, it may well be that Croatian law would apply here, but again the parties are silent as to this issue. Because there are no differences between Illinois and Virginia law material to resolving Defendants' motion and the parties do not argue that Croatian law would apply, the Court refrains from undertaking a choice-of-law analysis at this time.

Perhaps the defendants didn't raise Croatian law because Croatian law equally bars such conduct, even if Croatian law wasn't followed during this military operation. Much would depend, I think, on what sorts of wartime necessity justifications Croatian law would provide, if it at all discusses such matters.

In any event, an interesting case that bears watching further.