Linder v. Calero-Portocarrero – International Human Rights and Solidarity – CCR Docket Spring 1994

Although the Eleventh Circuil Court of Appeals on June 18, 1992 reversed a dis­trict court decision dismissing a suit by the family of Benjamin Linder against four contras allegedly responsible for his murder, a trial date has not yet been set.

In the year and a half since the court’s decision, the attorney for the contra defendants has engaged in a variety of uncooperative and delaying tactics, including the failure twice to comply with requests for documents, for which he was fined by the court. Defendants failed to appear for scheduled deposi­tions in November and December 1993 and CCR once again requested that sanc­tions be imposed.

Linder, a U.S. citizen, and two Nicaraguans were murdered  in April l987 by contras who attacked them while they were constructing a small dam in the village of Bocay. The dam was part of a project to provide electricity and potable water and to boost development in a poor, rural area of Nicaragua.

In 1988, CCR filed suit in federal dis­trict court in Miami against the contra organizations and their leaders, Adolfo Calero, Enrique Bemudez, Aristides Sanchez and Ignacio Rodriguez, charging them with the death of Linder. The com­plaint alleged that they ordered the killing, or were at least aware of or condoned the contra practice of killing civil­ians and executing the wounded. Plaintiffs, the family of Benjamin Linder, asserted a cause of action under interna­tional Law and the wrongful death law of Florida–the state in which the contras then had their headquarters much of their leadership resided.

ln I990, the district court dismissed the case on political question grounds–a discretionary doctrine which precludes federal courts from deciding cases which could interfere with foreign policy. But in a precedent-setting opinion, the appeals court reversed in l992.

The court’s ruling signifies that for the first time, a U.S. court found that tort suits–suits for damages–could be based upon violations of the customary laws of war. As the circuit court said, ”Even though a civil war was in progress…does this immunize the defen­dants from tort liability for torture and murder of Linder? We think not.”

Michael Ratner, Beth Stephens, Jules Lobel, Mahlon Perkins, Margaret Ratner, Harold Koh of the Lowenstein International Human Rights Clinic of Yale Law School, Daniel E. Jonas