Perspectives on Filartiga: The Vindication of International Human Rights in United States Courts – review of World Justice? U.S. Courts and International Human Rights – Harvard Human Rights Journal – PDF

universal-jurisdiction1992 Perspectives on Filartiga: The Vindication of International Human Rights in United States Courts

World Justice? U.S. Courts and International Human Rights. Edited by Mark Gibney. San Francisco, Cal.: Westview Press, 1991. Pp. 178. $41.50, cloth.

Reviewed by Michael Ratner*

For a human rights litigator, the most important issue the Supreme Court will face in the next few years is whether to uphold the principles established by the Second Circuit in the landmark case Filartiga v. Pena-lrala.1 The court in Filartiga found that the international obligation of a nation not to engage in torture was owed the international community as a whole. Thus all nations had an interest in enforcing this obligation.2 Implicit in Filartiga’s holding was that individuals, not just nations, could assert violations of the obligation not to torture; individuals had become not only the objects of international law but also the subjects.

The Filartiga precedent has become an important tool for human rights litigators. It has provided a method to seek justice for victims of human rights violations and to pressure the perpetrators of those violations. Officials of foreign countries may be less likely to violate human rights if they understand that the United States will not be a safe haven for human rights violators. Cases following the Filartiga precedent also have an effect within the United States. Human rights cases brought against officials from countries to which the United States supplies economic and military aid expose to the public the contradictions underlying executive and congressional policies and human rights law. The subsequent public interest and attention have led and will continue to lead to changes in United States policies. Thus, Filartiga has proven useful to human rights litigators who seek to vindicate the principles of international human rights and for this reason has been criticized by those who are hostile to such goals.3

The eight essays in World Justice? U.S. Courts and International Human Rights are concerned primarily with the jurisdictional and doctrinal issues raised by Filartiga and similar cases involving the application of international human rights norms to litigation in United States courts. In addition to essays on Filartiga and its progeny, the book includes essays on the rights in United States courts of persons abducted abroad, the use of military intervention to protect human rights, the application by United States courts of international norms guaranteeing economic rights, and the factors that can lead to a favorable judgment in an international human rights case. The essays, while a bit uneven, are timely and provocative. The issues they address are central to the present debate on the role of United States courts in the enforcement of international human rights; seven of the eight essays promote the use of United States courts as a forum for human rights litigation.

The opening essay, Human Rights and Universal Jurisdiction, by Daniel Bodansky, makes a strong argument that the Second Circuit in Filartiga v. Pena-Irala properly exercised universal jurisdiction over the torture committed in Paraguay by a Paraguayan police official. The principle of universal jurisdiction permits any state to punish certain offenses of universal concern regardless of where they occur. Prior to World War II, the exercise of universal jurisdiction was limited to cases involving acts of piracy and slave trading and did not include torture, disappearances, summary execution, and arbitrary detention. The exercise of universal jurisdiction over those acts would have been considered an interference with the affairs of the foreign state.4

The Nuremberg trials departed from the principle of non-interference. They established that one state’s treatment of its own citizens was of international concern and that one state’s officials could be punished by those of another.5 Since Nuremberg, numerous treaties and international declarations have made clear that all countries have an interest in prohibiting certain egregious human rights violations. Nonetheless, this international consensus has not been interpreted uniformly to give the courts of a particular state jurisdiction to try officials of foreign states for the violation of such rights.

Bodansky makes a strong argument that the courts of individual states have universal jurisdiction to try cases involving torture or – similar conduct. He prefaces his argument regarding jurisdiction over foreign state officials with an analogy between human rights violations and transitory torts. He points out that common law courts have always had adjudicatory jurisdiction over tortious actions which occurred in other jurisdictions. Under the transitory tort doctrine, the tort follows the tort feasor, who can be sued wherever found.

Bodansky’s analogy makes the Filartiga decision seem less exotic but, it is imperfect. If Filartiga were treated as a transitory tort case, the law of Paraguay, which does not allow for punitive damages, would be applicable. The court in Filartiga found such a result anom­alous because of the heinous nature of torture. Instead, it found that torture was an international law violation for which federal courts could fashion an appropriate remedy.

In making his universal jurisdiction argument, Bodansky examines three principles of international human rights law which previously restrained courts from asserting universal jurisdiction over acts such as torture: (1) that international law did not confer rights upon indi­viduals, (2) that a state’s treatment of its own citizens was its own concern, and (3) that other states had no interests to vindicate in prosecuting violations of human rights. Bodansky argues that under modern international law, rights accrue to the individual, as well as the state; a state’s treatment of its citizens is internationally regulated, permitting the exercise of jurisdiction over acts by officials of foreign states; and, because human rights norms are erga omnes (owed to all), a foreign state has an interest in their enforcement.

Bodansky raises, but does not answer, difficult questions which concern the potential of Filartiga-type suits to complicate the foreign policy of the United States and its allies. Bodansky suggests that these problems can be minimized through the mediation of the doctrines of act of state, immunity, and forum non-conveniens, rather than by courts’ traditional bending of jurisdictional principles. But, his distinction may be substantively meaningless; reliance on United States foreign policy for a rule of decision could dictate the same result—dismissal—no matter the doctrine used.

Bodansky recommends the use of criminal prosecutions for human rights violations rather than civil suits by individual litigants. He notes that criminal prosecutions are less likely to interfere with foreign relations than civil cases in which “individuals may bring unfounded, politically-motivated claims” (p. 15). While criminal prosecutions are unlikely to conflict with government policies because they give the political branches the discretion to pursue human rights cases, limiting human rights enforcement in this manner is inadequate and misses a key point of Filartiga-type cases. Recourse to civil courts for individ­uals who have suffered human rights violations is crucial: by enabling individuals to bring “politically-motivated claims” it provides a check on the tendency of the United States government to blind its eyes to the human rights violations of its allies.

Ralph G. Steinhardt’s article, Human Rights Litigation and the “One-Voice” Orthodoxy in Foreign Affairs, strongly criticizes the doctrines that courts have used to avoid ruling in cases involving foreign affairs and international human rights. Steinhardt points to three such doctrines: foreign sovereign immunity, the act of state doctrine, and the political question doctrine. He argues that these doctrines are premised upon the metaphor that in matters of foreign relations the United States should “speak with one voice” and, therefore, the Judiciary should not add its voice to that of the Executive and Congress. These doctrines, he asserts, elevate politics over law because the one voice metaphor requires deference to the political choices of the Executive and Congress even when the norm of international law is clear.

The article is particularly persuasive in arguing that application of the one voice abstention doctrine does not provide a workable principle for ruling in human rights cases such as Filartiga. This is because of the frequent diversity of voices within a branch, between branches, or between past and present administrations. Steinhardt’s solution to the one voice dilemma is to put forward a “qualified version” of the one voice orthodoxy. This qualified version permits deference to the polit­ical branches only in limited circumstances: when those branches have “actually committed the United States internationally pursuant to a delegated and exclusive power in the Constitution, when there is no international standard to apply, and when no individual rights are at issue” (p. 44). Steinhardt’s solution, while based on a strong founda­tion in international law and helpful to human rights litigators, may not be enough to save the principles established by Filartiga from a hostile Supreme Court. Many on the political right would like to limit Filartiga precisely because it provides an alternative route, independent of the political branches, for the redress of human rights violations.

In the article International Human Rights Law and U.S. Law, John – M. Rogers takes an opposing position to that of Steinhardt. Rogers argues that human rights law is not law but politics and that the political branches should be the ultimate arbiters of whether the United States or foreign countries are in compliance with human rights norms. According to Rogers, torture, whether at home or abroad, is a political question.

The thrust of Rogers’ argument is that United States courts should not apply human rights law directly for fear of interfering with the functioning and prerogatives of the political branches. Rogers asserts that enforcement of international human rights norms by United States courts handicaps the government in dealing with foreign governments and could even lead to the demise of the United States. He states, “ultimately, we are talking about preserving our system of government in an often hostile world” and our “system must be preserved” because it “represents for the world an advanced and relatively successful model for the protection of human rights” (pp. 115-17).

Rogers suggests four legal devices by which courts can apply inter­national law while still leaving the Executive and Congress as the final foreign policy decision makers. He suggests deploying to meet these ends: self-executing treaties, the doctrine that courts should interpret statutes as consistent with international law, the application of inter­national law where neither the legislature nor the Executive has pro­vided a source of law, and statutes where Congress has incorporated “customary international law by reference” (p. 114).

Rogers fails to discuss the Alien Tort Statute6 and the Filartiga line of cases. These omissions are surprising considering the articles’ pur­pose to undermine the legal basis for those cases in which courts applied international human rights law in contexts implicating foreign policy. The Act fits within Rogers’ fourth category, statutes incorpo­rating customary international law by reference, as it specifically gives jurisdiction to federal courts over torts “committed in violation of the law of nations or a treaty of the United States.”7 The Act’s authori­zation of courts to hear human rights cases based on the law of nations, however, undercuts his arguments.

Rogers adheres to the one voice theory stating that if “a United States court determines that a foreign nation has violated international law, there is the obvious problem that the United States is not speaking with one voice” (p. 115). He seeks support for his position that United States courts should refrain from decisions with foreign policy implications in the Sabbatino case.8 In that decision, the Supreme Court cited a lack of international consensus regarding the law of appropriation to refuse to pass on an appropriation by the Cuban government. Rogers failed, however, to acknowledge that implicit in this holding is that courts may find that a nation has violated international law when the norm is universally agreed upon.

In the end, what Rogers objects to is precisely what many human rights advocates support: that a United States court might enforce a norm prohibiting torture against an official of a foreign country, even if the United States government is allied with that country and furnishes it with economic or military aid. But, Rogers’ beliefs are archaic as much has changed since the Nuremberg Trials and the Second World War. A nation is no longer free to torture and execute its citizens while the rest of the world looks the other way.

Mark Gibney, the book’s editor, is also the author of the article, Courts as “Teachers in a Vital National Seminar” on Human Rights. Gibney believes that human rights cases should be used as a means to educate the public about the United States government’s actions. In addition to providing a check on the activities of the political branches by enforcing international law, courts should restrain the government by insuring that fundamental moral standards are followed. Gibney uses three cases to illustrate how courts could serve as national forums, moral teachers, and a check on the Executive. All three, Sanchez-Espinoza v. Reagan,9 Committee of U .S . Citizens Living in Nicaragua v. Reagan (CUSCLIN),10 and Crockett v. Reagan,11 challenged the United States’ actions in Central America and, despite their dismissal, played an important role in exposing to the public the United States’ actions in El Salvador and Nicaragua.12 Although Gibney’s argument is con­vincing, it is unlikely that courts in the United States will permit trials or render decisions in cases like Sanchez, CUSCLIN, or Crockett. Despite the legal soundness of the arguments advanced, courts are reluctant to hear such cases because of their concern that they will be perceived as undercutting policy choices made by the political branches and that their decisions may embarrass those branches.

As an additional point, Gibney argues that United States courts first ought to decide cases raising human rights violations allegedly committed by the United States before they hear cases brought against agents of other governments. His’ suggestion would meet the concern that the United States is hypocritical when it applies international human rights standards to others that it is unwilling to apply to itself. However, litigants victimized by other nations should not be precluded from vindicating their Filartiga-type claims until the distant day when the United States permits its own actions to be judged.

Howard Tolley, Jr.’s article, Interest Group Litigation to Enforce Human Rights: Confronting Judicial Restraint, describes the major legal groups involved in litigating international human rights cases in the United States, discusses important factors for winning international human rights cases, and evaluates the progress that has been made in enforcing human rights claims in United States courts. Tolley distinguishes among the various groups litigating human rights cases based upon their litigation strategies. In so doing, he de-emphasizes their ideo­logical differences and therefore does not examine how the contrasting litigation strategies represent political differences and divergent views of the courts and the role of legal precedents. Instead, Tolley attributes the variation in litigation strategies to the distinction between private counsel, who represent clients, and interest groups, who are more concerned with the “internationalist movement” (p. 133).

Noting that private lawyers may have an obligation to litigate cases that can make bad law, while interest groups can choose not to litigate such cases, Tolley wants litigated only those cases with a high likeli­hood of success and potential for the creation of beneficial precedent. This narrow view of the role of litigation fails to distinguish among the various groups engaged in the litigation. Some organizations take the position that litigation should not necessarily be about setting good precedents, but should and can be used to publicize—if not correct—an egregious wrong. For example, Sanchez-Espinoza v. Reagan, a case in which Nicaraguan civilians sued United States officials during the Contra war under the Alien Tort Statute illustrates how a case can be used to draw attention to United States violations of human rights. The lawyers in that case, who were from the Center for Constitutional Rights, decided that the possibility of creating bad precedent was less important than publicizing the murder and torture of the Nicaraguan population by the United States-backed Contras.

In another section of his article, Tolley identifies four factors that are likely to contribute to the success of human rights advocates: congressional authorization, executive approval, vulnerable defen­dants, and responsive judges. While these are significant factors in achieving victory, Tolley exaggerates their importance when he asserts, for example, “[w]hen these key ingredients are missing, defeat is almost certain..” (p. 139). Thus, in Martinez-Baca v. Suarez-Mason,13 a United States citizen brought suit against an Argentine general for torture. As a United States citizen he could not employ the Alien Tort Statute. But, despite the lack of congressional author­ization, the court found that he could assert his international law claim directly under the Constitution’s grant of federal question jurisdiction.

Additionally, every Alien Tort Statute case that has been brought against foreign officials for torture and similar violations of interna­tional law has been successful, whether or not the case had executive or congressional approval and regardless of the judge.

To date, the two most significant factors in determining the success of a claim seem to be the identity of the defendants and whether the United States is involved. If the defendant is a foreign official, even if he is in the chain of command, the courts have sustained jurisdiction despite immunity claims; if the defendant is a country, immunity will be upheld. 14 Tolley is correct in stating that a suit seeking to challenge United States violations of human rights will surly lose.

Tolley takes the position that in the short term, “overzealous efforts to obtain judicial opinions directly incorporating international law to change United States policy or to create extraconstitutional rights may prove counterproductive” (p. 142). He sides with those who fear the creation of unsympathetic precedent. However, his position ignores attorneys’ obligation to do the best for clients, to give them their rights now, to press every viable legal claim, and to publicize atroci­ties. Furthermore, unless the law is pushed, as it was in Filartiga, it will not change.

John Quigley’s article, Enforcement of Human Rights in U .S . Courts: The Trial of Persons Kidnapped Abroad, is an important and timely article concerning whether United States officials should be permitted to kidnap persons abroad and try them for crimes in United States courts. The article’s focus on the rights of the abducted, rather than on the violation of national sovereignty, is refreshing and convincing.

Quigley is critical of the general rule in United States courts, known as the Ker-Frisbee doctrine, “that forcible abduction is no sufficient reason why the party should not answer when brought within the jurisdiction of the court” (p. 63).15 He points out that even the narrow exception to this rule carved out by the Second Circuit in United States v. Toscanino16 only applies in cases where the state in which the abduction occurs objects to the kidnapping as violative of its sovereignty. 17 The requirement of an objection by the state fails to consider the rights of the abducted, leaving the person with no remedy absent an objection.

Quigley questions why the rights of the defendant should be de­termined by the requirement of both an extradition treaty and the objection of the abducted person’s country. He forcefully argues that the abduction violates the human rights of the abductee and that the abductee ought to be able to object, whether or not the country from which he or she was kidnapped objects. Quigley points out that forcible abduction violates the rights to personal liberty and freedom from arbitrary arrest and detention, which are protected by numerous international instruments.

Admittedly, Quigley’s position poses difficult questions. For ex­ample, what if a country is shielding a mass murderer who is guilty of genocide? Should not Israel have had the right to kidnap Adolf Eichmann and bring him to trial? Although the Eichmann case is particularly difficult, on balance the harm caused by permitting such kidnapping outweighs the benefits.18 For example, shortly after the United States Executive announced it would engage in such kidnap­ping, Iran claimed it had the right to kidnap dissidents from the United States. Quigley’s focus on the rights of the abductee rather than the violation of the sovereignty of the abductee’s state is in keeping with the trend in contemporary international law that indi­viduals are protected by, and can assert violations of, international human rights law. However, such principles of international law may find more adherents in international tribunals, which could lay the groundwork for customary international law prohibiting such prac­tices, than in United States courts or those of other nations.

Anthony D’Amato’s essay, The Relation of the Individual to the State in the Era of Human Rights, argues that in certain circumstances “hu­manitarian intervention” in foreign countries by armed force should be permitted (p. 171). This is a controversial position both among traditional writers on international law, who believe that no armed intervention except in self-defense is acceptable, and among certain modern writers, who view humanitarian intervention as an excuse for imperial domination.

D’Amato believes that human rights law obligates a state to its citizens. He rejects what he terms the “opaque” view of the state, that international obligations only attach to states and are not another nation’s concern, in favor of what he terms the “translucent” view (p. 167). His position is not that the state consists of individuals, all of whom have individual rights, but rather that the state is translucent and representative of the “collective rights of the people who have lived in it, who are living in it, and who will be born within its territory” (Id.). From this position, he concludes that “intervention is legal under international law if the use of military force itself is not expected to cause greater suffering or loss of life than that caused by the violations of human rights that it is attempting to remedy” (p. 170-71).

There are obvious problems with D’Amato’s position. First, his enumeration of human rights, the violation of which would justify intervention by other states, goes far beyond those rights recognized as jus cogens. They appear to include a human right to democracy, by which D’Amato seems to mean free press, political parties, and elec­tions. But, there is no international consensus on these issues as, for example, there is on torture. Nor could there easily be such a consen­sus. For example, the governing party in Mexico stole an election through the use of fraudulent practices. Should acts such as these entitle the United States or another nation to intervene? Second, D’Amato fails to consider the United States’ history of intervention in a manner that is selective, subjective, and often in pursuit of its own global interests.

Bert Lockwood’s essay, Toward the Economic Brown: Economic Rights in the United States and the Possible Contribution of International Human Rights Law, argues that “within the next thirty-five years an ‘economic rights’ Brown case will occur . . .” (p. 149). Lockwood believes that the Supreme Court will decide in favor of rights to basic needs, such as housing, health care, food, and a job, and that these rights will be found enforceable against the United States government. Lockwood argues that the recent events in Eastern Europe and the former Soviet Union will assist in the recognition of these economic rights. As an example, he points to President Gorbachev’s asking President Reagan about Franklin Roosevelt’s Second Bill of Rights, a 1944 speech enumerating economic rights. Lockwood’s premise is that just as the United States has insisted upon civil and political rights in the former Soviet Union and Eastern Europe, there will be similar pressure upon the United States to recognize economic rights. Unfortunately, the opposite seems to be true. The lesson many are taking from the break up of the Soviet Union is that socialism—particularly government guarantees of economic rights—does not work.

Lockwood’s main argument is that international agreements, such as the International Covenant on Economic, Social and Cultural Rights, can provide the basis upon which the Supreme Court could recognize economic rights if only the United States Senate were per­suaded to ratify them. After ratification, Lockwood believes, the Su­preme Court could find economic rights in the United States’ treaty obligations, or could use such international agreements as aids in interpreting constitutional rights to due process and equal protection.

Lockwood cleverly demonstrates how lawyers could argue these rights in court if the various treaties were to be ratified. The problem with his argument, however, is not only the absence of ratification. A premise which underlies the essay is that the struggle for economic rights can be waged successfully in the courts without corresponding popular pressure. The courts, however, will play little or no role in the fight for economic rights in the United States until there is an active people’s movement for economic justice. This is not to diminish the importance of the ratification of the treaties or of litigation de­signed to assert economic rights. Both are essential to legitimate the struggle and encourage the people to continue their fight. Hopefully, greater emphasis on economic rights in the years to come will result in their recognition.

Mark Gibney’s short and concise book is a testament to how far we have come along the road to establishing universal principles prohib­iting egregious conduct such as torture. Fifteen years ago most human rights lawyers would never have predicted the precedent setting Filartiga decision. No one would have dreamed that a federal court could hear a case against foreign officials who tortured citizens of their own country in that country. Today, the principles underlying Filartiga have taken root and will not be easily overturned. The Torture Victims Protection Act and the Torture Convention owe their existence in some measure to Filartiga’s key postulate that a torturer is an enemy of all humankind and can be brought to justice wherever found.

While much still has to be done in making real these prohibitions against human rights violations, particularly in light of the United States’ continued support for such violators, Filartiga gives human rights lawyers an important tool for bringing violators to justice. Gibney’s book provides important insight into the basis for this sig­nificant decision and how it can be utilized to meet continuing and unaddressed challenges to human rights.

* Cooperating Attorney, Center for Constitutional Rights, New York, N.Y.

  1. Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980). The court in Filarriga, a suit under the Alien Tort Statute, 28 U.S.C. § 1350, held that the family of a Paraguayan tortured in Paraguay could bring suit in a United States court against the Paraguayan police official who carried out the torture. In so doing, the court departed from precedent and recognized that trends in modern international law moved beyond traditional restraints that had prevented one nation from adjudicating the conduct of another nation toward its citizens.
  2. at 888-89.
  3. The recently passed Torture Victim Protection Act of 1991, Pub. L. 102-256, gives an additional statutory basis for bringing civil suits against foreign officials for torture or extraju­dicial killing. This statutory basis will remain whether or not the Filartiga principles are ultimately sustained.
  4. Universal jurisdiction over piracy and slave trading was not considered an interference with a state’s sovereignty over acts in its territory because these were considered stateless crimes which threatened all states.
  5. The Nuremberg trials were conducted by an international tribunal which gave those trials an international legitimacy that arguably is lacking when the courts of one state hold trial.
  6. 28 U.S.C. § 1350 (1992).
  7. Id.
  8. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964).
  9. 568 F. Supp 596 (D.D.0 1983), aff’d 770 F.2d 202 (D.C. Cir. 1985) (plaintiff’s challenged United States government’s arming of the Contras and alleged United States respon­sibility for human rights violations).
  10. 859 F.2d 929 (D.C. Cir. 1988) (plaintiffs challenged United States funding of Contras with knowledge of Contra human rights violations targeting United States citizens).
  11. 558 F.Supp 893 (D.D.C. 1982), aff’d 720 F.2d 1355 (D.C. Cir. 1983), denied 467 U.S. 1251 (1984) (plaintiffs challenged War Powers Resolution and the funding of El Salvador’s government because of that nation’s involvement in gross violations of human rights).
  12. The author of this book review was among the plaintiffs’ counsel in the three cases.
  13. 87-2057-SC (N.D. Cal. filed Apr. 30, 1987).
  14. The issue of the applicability of the Foreign Sovereign Immunities Act to torture is presently being litigated.
  15. Citing Ker v. Illinois, 119 U.S. 436, 444 (1886).
  16. S. v. Toscanino, 500 F.2d 267 (2d Cir. 1974).
  17. One might distinguish the Eichmann case on the basis that it involved genocide. Making such a distinction, however, is inconsistent with the logic of Quigley’s argument.
  18. The Supreme Court is presently considering whether a foreign state’s objection to an abduction gives the defendant a remedy against criminal proceedings.