Over the last few years many in the human rights community have focused on criminal remedies for pursuing individual human rights abusers. United Nations sponsored criminal courts are trying those who committed abuses in Rwanda and Bosnia and the International Criminal Court (ICC) will soon be a reality. National courts, such as those of Spain and Belgium, are beginning to employ the concept of universal jurisdiction and the Convention Against Torture to bring perpetrators of human rights violations to justice. These are all very important developments, but even once there is an ICC, there will be a need for additional international remedies. Only a few of the worst abusers will be tried by the ICC or by national courts; and international law’s enforcement mechanisms are likely to remain weak. The vast majority of violators will not be brought to justice nor will their victims be compensated for their injuries.
Criminal cases on both the national and international level require the cooperation of officials. While some such cases can be initiated by individuals, they cannot be fully prosecuted without prosecutors and/or investigating judges. All too frequently political or other concerns will prevent any prosecutions from going forward. The vast majority of violators will not be brought to justice nor will their victims be compensated for their injuries.
For these reasons civil remedies have an important role to play as a means of enforcing human rights norms. Courts in the United States have pioneered the use of civil remedies to sue human rights violators. Litigation under the Alien Tort Claims Act [ATCA or sec.1350] and the Torture Victim Protection Act [TVPA] have resulted in billions of dollars in judgments, and have had an important impact on plaintiffs and human rights both in the United States and internationally. Such cases do not require official approval; they can be brought by individuals who have control over the lawsuits and thus are less subject to political vagaries.
Civil remedies include damage awards for injuries and punitive damages meant to deter future abusive conduct as well as send a message to others that such conduct is unacceptable. In addition to any money that can be collected, these cases are important to the victims and their families. Plaintiffs are allowed to tell their stories to a court, can often confront their abusers and create an official record of their persecutions. This in turn could lead to a criminal prosecution. Filing these civil suits can empower the victims and give them a means for fighting back. It can also help them heal. One person who was in a center for torture victims described the importance to his psychological health of the filing of a civil suit against his torturer. Civil suits can also have consequences for the defendant aside from a monetary judgement. Hector Gramajo, a Guatemalan general, was barred from the United States after a court found him responsible for summarily executing and torturing Guatemalan Indians. The lawsuit may have also dashed his hopes to run for president of Guatemala. He has nowhere to hide.
An important aspect of civil suits is the annunciation of legal norms: courts declaring that torture and other abuses are violations of international law. These decisions have their effect internationally: a number of the Law Lords in the Pinochet decisions relied on ATCA and TVPA precedents.
The success of these civil suits is a remarkable chapter in American law. They have opened great future possibilities for the enforcement of international law and the bringing to justice of human rights abusers. To date, however, no other country appears to have adopted these civil remedies as a means of suing rights violators. Hopefully, the success of these cases in the United States will encourage others and civil remedies against abusers will become commonplace.
Filartiga and its Progeny: From Perpetrator to Commander
It all began in the United States with the landmark 1981 decision of the United States Court of Appeals for the Second Circuit, Filartiga v. Pena-Irala. Filartiga dealt with the 1976 torture and murder of Joel Filartiga by a Paraguayan police official. The official fled to the United States where the family of the victim was able to track him down. The Filartigas came to the Center for Constitutional Rights and asked if they could sue the torturer and bring him to justice.
At the time there was no precedent for such a suit. It would involve a suit by alien plaintiff against an alien in the United States for torture that had taken place in Paraguay. It was not exactly a case that U.S. courts would treat hospitably. The U.S. had little or no connection to the case, it might raise foreign policy concerns as the defendant was an official at the time of the crime and the courts were not familiar with applying international law. In fact, the Second Circuit had held in two relatively recent cases that international law did not apply to a country’s treatment of its own citizens-the court followed the old rule that international law applied only as between countries or to a countries treatment of foreigners. So there seemed little hope.
On the other hand, there was a statute, the plain language of which seemed to fit the case. The ATCA stated that U.S. courts had jurisdiction over suits by aliens for torts committed in violation of the law of nations (customary international law). Although the statute had been rarely applied, the Filartiga case seemed like an ideal test for it. It was a time when President Carter was emphasizing international human rights and a number of statutes had been enacted limiting U.S. aid to countries violating human rights. There was also a strong argument that the Second Circuit precedents were wrong. The Nuremberg and Tokyo war crimes trials, the United Nations Charter, the ratification of various human rights treaties and numerous U.N. resolutions contributed to a new consensus that international law did govern a state’s treatment of its own citizens and that a person had a right to be free from torture even from his home country.
Initially the federal district court dismissed the case finding that it was bound by the appeals court decisions that international law did not govern a state’s treatment of its own citizens. On appeal, President Carter’s Departments of Justice and State filed a brief in support of the plaintiffs arguing that this was no longer true and that torture was one of a handful of international law violations that gave rights to individuals against their own states. The appeals court agreed and gave a resounding victory to the Filartigas. The principles set forth in that decision were to guide the litigation over the next decades and have had a major influence on the development of international law both in the United States and throughout the world.
The Filartiga decision held that “deliberate torture perpetrated under color of official authority violates universally accepted norms of the international law of human rights, regardless of the nationality of the parties.” In other words, torture is prohibited by the law of nations or customary international law and, significantly, international law “confers fundamental rights upon all people vis-a-vis their own governments.” The court had overruled its earlier precedents and permitted the Filartigas to sue their own government.
The court also found that it was appropriate for a court in the United States to hear the case, even though the occurrence and the parties had no substantial connection to the U.S. In part this was based on the concept of universal jurisdiction and that the right to be free from torture had been universally proclaimed by all nations. With stirring language, the court emphasized that a torturer could be brought to justice where found even for civil liability: “Indeed, for purposes of civil liability, the torturer has become–like the pirate and slave trader before him--hostis humani generis, an enemy of all mankind.”
Eventually, the defendant Pena-Irala was deported back to Paraguay and the case continued without him. At a damage hearing, damages including punitive damages of over $10 million were awarded to the plaintiff’s father and sister.
Over the next two decades a series of cases following Filartiga made a number of important advances in establishing the civil liability of those responsible for human rights violations. In Filartiga, the actual perpetrator had been sued; in future cases the range of defendants was expanded. Those who ordered or authorized the violations or those persons with command responsibility who knew, or should have known, and failed to stop violations were also found liable. A series of cases were brought against General Guillermo Suarez-Mason, an Argentine General in charge of the military district of Buenos Aires and responsible for the torture, murder and disappearances of hundreds of Argentinian citizens during the “dirty war.” He, like the defendant in_ Filartiga, had come into the United States where he was served with legal process. The suits resulted in over $80 million in judgments and expanded the Filartiga holding to a commanding officer and not just the torturer.
Likewise in Xuncax v. Gramajo eight Kanjobal Indians, refugee survivors of what many human rights advocates called genocide against the Indians of Guatemala in the early 1980’s, sued the general they alleged was responsible. General Hector Gramajo was in the U.S. at the time studying for a degree at Harvard’s Kennedy School. Although the general did not personally commit the murders and torture, he was held liable under the doctrine of command responsibility, the court finding that he “devised and directed the implementation of an indiscriminate campaign of terror against civilians such as plaintiffs and their relatives. ” Subsequent to this decision General Gramajo was barred from the U.S. under provisions of its immigration laws.
Numerous other cases have now reaffirmed the responsibility and civil liability of commanders and those in authority for the actions of their troops and subordinates. In Todd v. Panjaitan, the Indonesian general with authority over the soldiers involved in the 1991 East Timor Dili massacre was found liable for the death of a young student-activist; in Paul v. Avril, the dictator-President of Haiti was held liable for the torture of five political opponents; and in a series of cases against the estate of the former dictator-President of the Philippines, Ferdinand Marcos, jury imposed liability of hundreds of millions of dollars on behalf of at least 10,000 victims. The major recent case affirming such liability is Kadic v. Karadzic, a suit against the leader of the Bosnian-Serbs on behalf of the victims of the war in Bosnia-Herzegovina. Plaintiffs alleged that Karadzic possessed ultimate command authority over the Bosnian-Serb military forces, and that their injuries were committed as part of a pattern of systematic human rights violations directed by him and carried out by military forces under his command. Not only did the Second Circuit permit the suit to go forward, but a jury imposed a $4.5 billion judgment against him. As a result of these cases it is now well established in U.S. courts that those who oversee murder, torture and other human rights violations are civilly liable to their victims.
In addition to suits against individual defendants, two cases have sued groups involved in human rights violations. In Belance v. FRAPH (Revolutionary Front for Advancement and Progress In Haiti), a Haitian woman who had been almost macheted to death by a defendant paramilitary group brought suit against a branch of the organization operating in New York. In Doe v. Islamic Front (FIS) nine women and men filed a lawsuit against the Islamic Salvation Front charging them with committing crimes against humanity.
Not only did these cases expand the category of defendants that could be sued, but the courts found that a number of other violations of customary international law were actionable. In Forti v. Suarez-Mason, the court found that prolonged arbitrary detention and disappearances constituted violations of customary international law and met the ATCA requirements. The court set out a test that many of the courts hearing ATCA cases now employ: to establish a norm of customary international law actionable under the ATCA: the prohibition violated must be “definable,'”`universal,” and “obligatory.” Criteria similar to these were articulated in Filartiga. By “universal” the court explained that the norm required an international consensus; “definable” meant the norm was clear and unambiguous; and “obligatory” meant that it was non-derogable. In Suarez-Mason the court determined that cruel, inhuman and degrading treatment (CIDT) was not definable and did not have universal consensus.
In Xuncax, decided subsequently to Suarez-Mason, and after ratification of the Convention Against Torture (CAT), the court found that cruel, inhuman and degrading treatment did constitute a norm of customary international law actionable under the ATCA. But it did so with a limitation. By the time Xuncax was decided, the U.S. and most other countries had ratified the CAT which contained a prohibition on cruel, inhuman and degrading treatment and the court had little trouble finding that the prohibition was universal as well as obligatory. In addition, when the Senate ratified CAT, one of its reservations was that the scope of CIDT would be the same as the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth Eighth and Fourteenth Amendments to the U.S. Constitution. While the customary norm of CIDT may be broader than the U.S. constitution’s prohibitions, this did give the court a comfort level with CIDT’s definability. For ATCA cases CIDT was to be defined according to the U.S. Constitution, a definition with which courts are comfortable.
The Xuncax court also added summary execution or extra-judicial execution and arbitrary detention (as differentiated from prolonged arbitrary detention) to the list of torts cognizable under the ATCA.
Karadzic: Opening the Door to Non-State Actors
A major breakthrough in the law with regard to cognizable international law violations for ATCA purposes came with the Second Circuit’s opinion in Kadic v. Karadzic. The problem plaintiffs faced was that the court might find that Karadzic, an unrecognized foreign leader, was not acting on behalf of the state when he authorized or approved massive human rights abuses. These included a campaign of murder, rape, forced impregnation and other forms of torture against Bosnian Muslims and Croats. Although the issue had not been raised directly, dictain some of the earlier ATCA cases appeared to require that norms of international law required some form of state action; in other words violations of international law could not be committed by private persons acting without some form of state involvement. For example, torture committed solely by a person acting without such involvement does not constitute a violation of international law; nor do disappearances or summary execution. However, plaintiffs’ lawyers determined that certain international law violations could be committed by individuals without any involvement by the state: these included genocide, crimes against humanity and war crimes. Thus, while an individual could commit a single murder and not violate the international law prohibition on summary executions, he would violate international law if he committed such murders on a large scale or in a pre-conceived and systematic way. That would be a crime against humanity. It is likewise with genocide; the Convention against Genocide does not require state action if the elements of genocide are met. This was a key element to the plaintiffs’ arguments in the Second Circuit.
This question had never been decided previously by a U.S. court and it was unclear if the Circuit would uphold plaintiffs’ arguments. However, in a remarkable opinion, the court held that “certain forms of conduct violate the law of nations whether undertaken by those acting under auspices of a state or only as private individuals.” The court found that included in these “forms of conduct” by individuals that violated the law of nations were both genocide and war crimes. As the court said, “genocide is a crime under international law that is condemned by the civilized world, whether the perpetrators are private individuals, public officials or statesmen.” For its conclusion the court relied upon, inter alia, the Convention Against Genocide and the Genocide Convention Implementation Act of 1987, both of which make acts of genocide illegal without regard as to whether the offender is acting under color or law. With regard to war crimes the court relied upon the law of the Nuremberg trials and Common Article 3 of the Geneva Conventions which it found bound the parties to a conflict whether or not they were recognized countries or “roving hordes of insurgents.” The court had no difficulty in finding that the type of atrocities alleged were violations of the customary laws of war and applied to Karadzic whether or not he was an official of a recognized state.
Subsequent to the Circuit’s decision, the district court held a jury trial to assess damages (Karadzic defaulted). At the trial a number of his victims testified and the jury came back with a $4.5 billion dollar verdict as well as a statement strongly condemning the defendant.
The Torture Victim Protection Act
While most of the above-described cases were brought under the ATCA, a few of the cases utilized a 1992 statute, the Torture Victim Protection Act. This statute was passed primarily to permit U.S. victims of certain human rights violations to sue in U.S. courts in a similar manner as aliens were permitted to do under ATCA. However, it is not restricted to citizens; aliens can use it as well. Some of the TVPA’s proponents also believed that it was important for Congress to pass a contemporary statute that would reinforce Filartigas’ interpretation of the ATCA in the courts. The legislative history of the TVPA is clear on this point stating that the ATCA has “important uses and should not be replaced.”
However, the TVPA in certain respects is more limited than the ATCA. The TVPA grants a cause of action for only two international law violations: torture and extrajudicial killing. Thus, it cannot be used as it was for example in Forti, for disappearances, or as it was in Karadzic for war crimes and genocide. The TVPA also requires that the defendant act under the authority or law of a foreign nation; thus suits against U.S. officials are prohibited unless somehow they are acting under foreign law, a very unlikely scenario. The TVPA contains a ten-year statute of limitation which is helpful in the ATCA cases where courts have struggled with determining the appropriate limitation period.
The TVPA was first employed in Ortiz v. Gramajo, a companion case to Xuncax. Diana Ortiz was an American citizen nun tortured and sexually abused while in Guatemala. As a citizen she could not use the ATCA and had to rely on the TVPA. She sued Gramajo under the statute arguing that it was retroactive to the time of her torture. (The statute was passed in 1992; Ortiz was tortured in 1989) The court agreed with Ortiz and found that the TVPA could be applied retroactively. It reasoned that torture had been universally condemned prior to Ortiz’s ordeal and thus there was no compromise of Gramajo’s substantive rights nor manifest injustice in applying the statute to his conduct. A number of courts have agreed with this analysis.
One other important point to recognize regarding the TVPA is that its language employs the term “individual” in referring to defendants. Not only might this limit suit against groups and organizations, but suits against corporations may also not come within the statutes terms.
Attempts to Sue U.S. Officials
While ATCA and TVPA suits against foreign human rights violators have been very successful, it is a different story with regard to suing U.S. officials for human rights violations committed overseas. To date, the courts have been hostile to this type of litigation. The key case in the area is Sanchez-Espinoza v. Reagan, a suit by victims of the contras in Nicaragua against various U.S. officials including President Reagan, the Director of the CIA and others responsible for funding and directing the war against the Nicaraguan government. The plaintiffs alleged that the U.S. officials had knowingly assisted in the financing and directing of the contras in carrying out a plan of terror against civilians that included torture, rape and summary execution. In an opinion that cannot be justified legally, the D.0 Circuit dismissed the case, holding that the law of domestic sovereign immunity immunized the defendants. The court reasoned, and that is a polite word, that as the actions were official, the suit was in essence one challenging official actions of the United States. As there was no waiver of sovereign immunity, the case was dismissed.
Obviously, the suit involved officials acting under color of federal law, but that should not have meant they were immune. The defendants may have acted under color of law, but the suit alleged they were acting illegally under international law and therefore outside the law in a manner that was unauthorized. Just as the court acknowledged that foreign officials are not protected in that situation (the court said its decision did not conflict with Filartiga), nor should U.S. officials be immune.
The court distinguished the two classes of defendants by stating that the “doctrine of foreign sovereign immunity is quite distinct from the doctrine of domestic sovereign immunity,” the former being based on comity and the latter on separation of powers. Presumably, by this the court was addressing the fact that foreign affairs powers are an executive function that should not be intruded upon by the judicial branch. But when those powers are employed to torture people, judicial abstention is inappropriate. One would have assumed that the opposite result was more likely to ensue. In suits against U.S. officials for violations such as torture, judicial scrutiny would cause less interference with foreign affairs then suits against foreign officials. The latter would appear to have greater potential to interfere with our relations with foreign countries. Unfortunately, the chances of overruling Sanchez are remote. Two of the three judges in the Circuit Court are now Justices of the Supreme Court: Scalia and Ginsberg.
In the one major case filed, plaintiffs have fared better when they have sued U.S. officials for violations of international law in the United States. In a precedent setting decision a federal district court held that U.S. officials, U.S. corporations acting pursuant to government contract and their employees could be sued for violating customary international human rights law in the United States. Jama v. United States. The plaintiffs, who were political asylum seekers housed in an Immigration and Naturalization Service (INS) contract detention facility, alleged that they were subject to physical, sexual and psychological abuse by the defendants. As plaintiffs were excludable aliens they were unsure of their right to be free from such conduct under the U.S. Constitution. However, they were protected by international law prohibiting cruel, inhuman and degrading treatment and brought suit under the ATCA upon that basis. The Jama decision is the first case to recognize that U.S. officials can be sued for violating customary international law for abuses in the United States. It opens great opportunities for victims who have suffered abuses in the U.S.
Suing Countries for Human Rights Violations
Although it was argued in a number of cases that the ATCA permitted suits against countries despite the bar of the Foreign Sovereign Immunities Act (FSIA), this effort was unsuccessful. In Argentine Republic v. Amerada Hess Shipping Corps, plaintiff shipping company claimed that one of its oil tankers was bombed by defendants during the Malvinas-Falklands war in violation of the customary international laws of war. The Supreme Court ruled that the FSIA was the sole basis for obtaining jurisdiction over a foreign country. Unless a case fit within one of FSIA’s exceptions, a court did not have subject matter jurisdiction. The exceptions are relatively narrow and include commercial disputes, torts within the United States and waivers of the immunity by the country concerned. Thus, in general, suits for human rights abuses can only be brought against the officials involved.
There is, however, one narrow but important exception to immunity passed by Congress in 1996, 28 U.S.C. sec. 1605(a)(7), the so-called terrorist state exception. Under this exception nationals of the United States are permitted to sue foreign countries for international law violations including torture and extrajudicial execution. The limitation is that the exception only applies to countries designated as “state sponsors of terrorism.” Only seven such countries have been so designated: Iraq, Sudan, Libya, Cuba, North Korea, Iran and Syria. As a result of this provision, which has been retroactively applied, a handful of cases have been filed against certain of the designated countries. Among the most well known is Alejandre v. Cuba , a suit filed by the families of pilots belonging to the organization Brothers to the Rescue. Three of the pilots were shot down by the Cuban Air Force in what the court deemed was an extrajudicial execution. Cuba did not contest the case and it resulted in a default judgment of 187 million dollars.
Whatever one thinks of the merits of these cases, there is a striking difference between them and the ATCA cases. The ATCA cases can be brought against officials of any country; and permission to sue is not required from the U.S. Department of State. On the other hand these so-called terrorist state cases can only be brought if the State Department has designated the state as terrorist. This highly politicizes the bringing of these human rights cases and undercuts their legitimacy. In the last annual designation of Cuba as a terrorist state, U.S. officials practically admitted that Cuba did not belong on the list and was not engaging in acts of terrorism. In fact, the designation appears to be for domestic political reasons. Countries that should be on the list are not: Turkey; despite its abuses against the Kurds is not included-because it is too close of a U.S. ally.
The Post-Karadzic Cases: Suing Corporations
The most fruitful recent development emerging from the Karadzic decision are the corporate ATCA cases. These are cases brought against corporations allegedly involved in human rights abuses outside the United States. The Karadzic decision opened up the possibility of suing such entities as a result of its holding that certain international law violations could be committed by private parties. Jurisdiction over the corporations is obtained either because the corporation is headquartered in the U.S. or is otherwise doing business in the U.S. One of the more significant cases is Doe v. Unocal. Plaintiffs allege that Unocal was complicit in forced labor, forced relocation and torture, carried out by the Burmese military in the building of the Yadana natural gas pipeline. Plaintiffs argued that as a result of Unocal’s joint venture with a state-owned entity, Unocal was acting under color of law with regard to the human rights violations. Alternatively, it was argued that at least two of the international law violations-forced labor and forced relocation-could be committed by private parties. The case involved extensive discovery and eventually motions by the defendants for summary judgment.
The District Court Judge granted the motion, but made a number of favorable factual findings in favor of the plaintiffs. He found that the evidence demonstrated that Unocal knew that the Burmese military utilized forced labor and benefited from it in connection to the pipeline. However, he decided that Unocal itself did not use the forced labor and therefore could not be held liable. Even this loss demonstrates the importance of these cases: plaintiffs were able to prove that a major oil corporation knew about and benefited from forced labor. The case also sent shockwaves through the global corporate community; not only could they no longer hide their human rights practices, but they might even be held liable for it as well. Hopefully, when the case is decided on appeal, plaintiffs will be permitted to go forward to trial and demonstrate the complicity of Unocal.
A second important corporate case is Wiwa v. Royal Dutch Petroleum, a case charging defendants with complicity in the 1995 hanging of Ken Saro-Wiwa and John Kpuinen, two Nigerian activists. International law claims include extrajudicial execution and torture and allegations that the defendants conspired with the Nigerian government in the killings. Wiwa demonstrates the global reach of human rights law and the willingness of U.S. courts to hear these cases. The killings occurred in Nigeria, the defendants headquartered in the UK and the Netherlands are the corporate owners of Shell Nigeria. Jurisdiction was obtained as a result of the activities of an investor relations office set up by Shell’s subsidiary in New York. In an extremely important decision, the Second Circuit unanimously agreed that there was jurisdiction over the defendants and that the case could be tried in New York. In doing so the court emphasized that congress by both its passage of the ATCA and the TVPA had stated the importance of U.S. courts hearing these human rights cases. In March 2001 the United States Supreme Court declined to review the Circuit court decision.
A third case, Manzanarez-Tercero v. C & Y Sportswar, Inc„ is another case that is forging new ground in the efforts to hold multinationals responsible for their human rights abuses overseas. It is the first of the ATCA cases to address the many abuses that occur in textile assembly plants overseas. The plaintiffs are fired workers and union leaders formerly of Chentex, a Nicaraguan factory that manufactures jeans for department stores in the U.S. such as Kohl’s. The international law claim they are raising is the right to associate as workers and form a union; they are arguing that this is right protected by customary international law. Jurisdiction was obtained over the Taiwanese parent owner of Chentex through a subsidiary in California. If this case can be won, it will be a major step in both the scope of ATCA litigation and offer some hope toward improving conditions in overseas sweatshops.
These cases give some sense of the future possibilities offered by suits for civil remedies against corporations. Suits against classic human rights abusers-those for torture, extra-judicial execution and the like-continue to be important. The world is still filled with individual evildoers. However, the lawsuits brought against them are generally for past conduct committed when the abusers are out of power. In addition, actually collecting the damages can be very difficult. On the other hand, suits against corporations are generally for abuses that are continuing; those suits present the possibility or actually modifying current conduct; even the filing of such suits spotlights the egregious behavior of some of these multinationals and can lead to positive changes. Corporations can also pay judgments, thus giving some remuneration to victims. That also means the defendants can and do pay major law firms to represent them requiring increased resources on the plaintiffs’ side. They also raise more alarm bells in the establishment. Taking on a known evildoer is generally not very controversial; taking on the big oil companies is.
It is hoped that the success of the suits against individual abusers and the newer corporate cases will encourage litigators in other countries to attempt similar suits or try to have laws passed to permit such litigation. The great advantage of this litigation is that it is not controlled by governments, but is a remedy available to anyone who was a victim of abuse. And, cases can be brought outside the country of the abuse, thus lending a margin of safety not often available in the home state. If these civil remedies become widely used, they could have a real impact on making this world a better place.