The Cases of the Foreign Generals Brought to Justice – in Fighting for Public Justice: Cases and Trial Lawyers that Made a Difference – with Beth Stephens – PDF

2001 The Cases of the Foreign Generals Brought to Justice

For Hector Gramajo, the former Minister of Defense of Guatemala, it was a proud day. He had been in the U.S. for nearly a year, pursuing post-graduate studies at Harvard’s Kennedy School of Government, trying to improve his chances of being elected as his country’s President. His education complete, Gramajo walked with other members of his class toward the site of the graduation ceremony.

A man approached. He smiled warmly and asked, “Señor Gramajo?”

“Sí,” the former general smiled back.

The man handed Gramajo some papers, smiled again, and walked away.

Gramajo took the papers, perhaps assuming that they were from admirers, and walked to his graduation unaware that he had just been served in a lawsuit involving claims for millions of dollars by several victims of egregious human rights abuses perpetrated in Guatemala under Gramajo’s command.

With the help of attorneys Michael Ratner and Beth Stephens of the Center for Constitutional Rights (CCR) in New York, Gramajo’s victims sued him under the Alien Tort Claims Act (ATCA). This federal statute was passed in 1789 as an anti-piracy law and permits non-citizens to sue in U.S. courts for tortious conduct that violates “the laws of the nations.” CCR also filed a similar suit against Gramajo on behalf of a nun who was a U.S. citizen. That suit included a claim under the 1992 Torture Victim Protection Act (TVPA), which permits individuals to sue in U.S. courts for acts of torture and other crimes against humanity.

CCR was founded in the 1960s to litigate civil rights cases. Over the years, it has used the law and the courts to pursue a progressive agenda that has included anti-war efforts and the protection of the rights of aliens living in the United States. CCR maintains a “human rights docket,” bringing suits under American civil law to punish international human rights abusers.

In 1995, attorneys Ratner and Stephens were named as co-winners of the Trial Lawyer of the Year Award for four cases successfully brought in U.S. courts to redress horrific human rights abuses. Their victories in these cases have helped to lay the foundation for an international common law, pursuant to which civil courts throughout the world enforce universally accepted standards of human rights. Each of the four cases is summarized below.

Xuncax v. Gramajo and Ortiz v. Gramajo: In these two consolidated cases, General Hector Gramajo was held civilly responsible for the infliction of terri­ble human rights abuses by the Guatemalan military during the 1980s. The plaintiffs in the Xuncax case were 11 Guatemalan nationals who had been vic­timized in various ways by the Guatemalan military. A brief recitation of just a few of the plaintiffs’ grievances — each one more horrific than the next — illus­trates the brutality experienced by the people of Guatemala during this period.

  • On July 18, 1982, soldiers broke into Xuncax’s house. They stripped, bound, and masked her husband, and then beat him, kicked him, dragged him outside, and walked him naked through the village. His crime: he had worked for a period of time in the U.S. That evening he was summarily executed. Fearing for her and her children’s lives, Xuncax fled and lived in refugee camps in Mexico. She eventually found sanctuary in the U.S. and filed for political asylum.
  • Juan Diego-Francisco faced a similar fate after working in America. On July 6, 1982, 300 soldiers entered his village, broke into his house, grabbed him, tied him, and began a vicious interrogation, during which they beat him with their hands and guns and also beat his wife. For 14 hours, the soldiers took turns torturing him, putting him inside thick plastic bags, and holding a knife to his head. When he was finally released, Diego-Francisco fled with his wife. He later learned that three of his cousins had been executed and his house had been burned down. He made his way to the U.S. and sought political asylum.
  • In July 1982, members of the Guatemalan military shot Elizabet Pedro-Pascual’s older sister to death and beheaded her, while she was visiting a neighboring village. When Pedro-Pascual learned that these same soldiers were headed for her home village, she and her family ran for their lives. After spending time in Mexico, she arrived in the U.S. and sought political asylum.
  • In November 1988, Guatemalan soldiers tortured, mutilated, and killed 21 civilians in Jose Alfredo Callejas’ village. Among the victims were Callejas’ brother and cousins, whose abused bodies he saw. After the massacre, the army pressured survivors to blame “guerillas” for the murders. Later, Callejas began to receive threatening letters and heard that his name was on an army “death list.” His father then “disappeared” and is presumed dead. Soon thereafter, soldiers threw a grenade at Callejas, wounding him. After meeting with human rights workers in September 1990, Callejas was fired upon by a machine gun in a drive-by shooting. He eventually found sanctuary at the Canadian Embassy and became a resident of Canada.

The plaintiff in the Ortiz case was U.S. citizen Dianna Ortiz, a member of the order of Ursuline Sisters of Maple Mount, Kentucky. Ortiz had traveled to Guatemala as a missionary and an educator. Through 1988, she worked in San Miguel with other Ursuline Sisters, teaching Bible studies and reading to chil­dren. In September 1988, the local Bishop told the Sisters that he had received a warning that the nuns were planning to meet with leftist guerrillas. Assuring their Bishop that the charge was not true, the nuns thought little about it.

Then in 1989, Sister Ortiz’s self-described “nightmare” began. First, she received letters threatening that she would be killed if she did not leave the country. But her commitment to the people she served was stronger than her fear. Sister Ortiz steadfastly continued her work with the poor people of Guate­mala. She was eventually accosted on the street. Fearing for her life, she left Guatemala briefly, but after much prayer and reflection, she returned to the people whom she felt called to serve. Soon after she returned, Sister Ortiz was kidnapped. She was locked in a room, blindfolded, partially stripped, and then tortured by her abductors. In a court affidavit, Ortiz described her torture as follows:

He told me that they were going to explain the rules of a game. He said they were going to ask me some questions. If I gave an answer they liked, he said that they would let me smoke; if they didn’t like the answer, they would burn me with a cigarette. When I said the rules were unjust, they burned me with a cigarette.

They began to ask me questions. They asked me my name, age, where I lived…. Every time I answered, they burned me with a cigarette. It didn’t matter what answer I gave; they burned me….I was crying and screaming with pain.

Sister Ortiz’s abductors removed her blindfold and asked her questions about people depicted in photographs. Then, the abuse continued:

One of the men blindfolded me again. Then one of them hit me in the face so hard that I fell to the floor. My face was scraped and bleeding….Two of them pulled me into a sitting positing. They took off the rest of my clothes and began to abuse me sexually in horrible ways. Wine was poured on me and they used and abused my body in ways that are too disgusting and too humiliating for me to describe in detail. They told me they would stop if I gave them the names of the people in the photographs.

Sister Ortiz blacked out. When she awakened, she found herself again the subject of interrogation. She was raped repeatedly. Then, she could hear peo­ple moving some sort of heavy block that was on the ground. Her affidavit con­tinues:

There was a horrible smell and I was lowered into a pit. It seemed to be filled with bodies; I remember trying not to walk on them. There were rats falling on me. I passed out again. I remember waking up somewhere on the ground. The men were again amusing themselves with my body.

The abuse continued for some time. Finally, someone who sounded like an American told her torturers that she was a North American and they should let her go. The man removed her blindfold and helped her back into her clothes. He brought her to his car and began to drive her, he said, to the U.S. Embassy. But Sister Ortiz did not trust him. At a traffic light, she bolted from the car and escaped.

When Sister Ortiz came forward with her experiences, Hector Gramajo denied that they ever happened. Indeed, he accused her of fabricating the story to cover up a “sadomasochistic lesbian affair.” As a result, Ortiz was more than willing to help sue the former general.

Gramajo sought to dismiss both cases. In holding that Gramajo could, upon proper proof, be held liable for the atrocities alleged under the ATCA and the TVPA, U.S. District Court Judge Douglas P. Woodlock ruled that there was no doubt that the human rights abuses alleged in the complaints “are recog­nized in international law as violations of the law of war.” Even if Gramajo did not direct or personally participate in the individual acts of torture, the court ruled that such an excuse “overlooks the fact that the gist of the charge is an unlawful breach of duty by petitioner as an army commander to control the operations of the members of his command by permitting them to commit the extensive and widespread atrocities specified.”

After the court permitted the cases to proceed, Gramajo defaulted rather than participate in discovery. The court ordered Gramajo to pay damages in the amount of $47.5 million to the plaintiffs in Xuncax and Ortiz.

Todd v. Panjaitan: Kamal Ahmed Bamadhaj, a New Zealand citizen, was a 20-year-old student at the University of New South Wales in Australia on the day he died in East Timor. A pro-democracy activist, Bamadhaj had traveled to that Indonesian-occupied country to offer his services as a translator on a United Nations (UN) fact-finding mission and to interact with East Timor pro-democracy activists. Unexpectedly, the UN cancelled the mission, dis­heartening the East Timorese and emboldening the Indonesian military occu­pying forces.

On November 12, 1991, Bamadhaj participated in a peaceful demonstration and funeral for an activist. As a few thousand mourners walked toward the cemetery, they periodically shouted independence slogans. They also carried banners. When the crowd arrived at the cemetery, troops appeared and moved forward, raising their rifles and opening fire on the defenseless people. More than 250 people died.

Bamadhaj was injured in the gunfire, but did not die immediately. He stag­gered down a street and a military vehicle approached. Shots rang out and Bamadhaj fell to the pavement. The soldiers stole his camera and roared off, leaving the young man to bleed to death.

Bamadhaj’s mother, Helen Todd, sued on behalf of herself and the estate of her son under the ATCA and the TVPA. The defendant was Sintong Panjaitan, the commander of the Indonesian military at the time of the slaughter. Panjaitan had been in direct control of the soldiers who massacred the East Timorese mourners. Panjaitan was in the U.S. attending Harvard’s Business School when the suit was filed and served.

Not surprisingly, Panjaitan fled the U.S. and never answered the suit. A default judgment of $4 million in compensatory damages and $14 million in punitive damages was entered in favor of Todd and her son’s estate.

Paul v. Avril: Prosper Avril was the Lieutenant General of the Haitian mil­itary and a supporter of General Henri Namphy, who took control of Haiti after the overthrow of the dictator Jean-Claude “Baby Doc” Duvalier. After suc­ceeding Namphy, Avril ruthlessly oppressed all political opposition, including opposition voiced by the six plaintiffs in this case.

On November 1, 1989, the Presidential Guard invited plaintiffs Evans Paul, Jean-Auguste Mesyeux, and Marino Etienne to a conference about human rights abuses. Rather than enter into a discussion with these democracy advo­cates, about 40 soldiers, all members of Avril’s personal security detail, surrounded them and viciously beat them, hitting them with truncheons and the butts of their rifles, and repeatedly kicking them with their heavy combat boots.

The soldiers stripped their prisoners of all of their identification papers, jewelry, money, and keys, and hauled them outside, where the beatings contin­ued. They were then transported to the Port-Au-Prince police headquarters and the beatings resumed. Soldiers set the activists’ hair ablaze and put lit cig­arette lighters in their nostrils.

By the end of one of these sessions, Etienne had been beaten so badly that both his eyes were swollen shut, blood was dripping from his skull, and his clothes were entirely caked in his own blood. Meanwhile, Paul had suffered six broken ribs, a herniated disc, a perforated lung, a crushed hip, a swollen scro­tum, and severe psychological trauma. The other plaintiffs suffered similar injuries.

On November 2, 1989, the government publicly displayed the plaintiffs on state-controlled television. Government agents falsely accused the plaintiffs of planning to assassinate Avril. They jailed the plaintiffs and never brought them to trial. Eventually, the Haitian government released the plaintiffs. They fled to the U.S. and later filed suit.

Three other Haitian political activists — Gerald Emile Brun, Serge Gilles, and Fernand Laforest — also sued Avril due to events that occurred on January 20, 1990, after Avril had declared a state of siege. These plaintiffs were beaten and tortured, held without counsel, and forcibly deported. During their ordeal, they were also denied medical care and representation of counsel.

The six plaintiffs were ultimately awarded $41 million in a default judgment.

None of the plaintiffs in the four cases described above has been able to collect on the judgments, although collection efforts continue. This does not mean that these suits have been mere pro forma exercises. “Our ultimate point is to stop these abuses from happening,” says Stephens, “and we passionately believe that one way to stop these activities is to make people pay a price.”

The CCR’s Jennifer Green, Matthew Chachere, Mahlon Perkins, Jose Luis Morin, and David Cole also served as co-counsel in all four cases. Serving as co-counsel in Gramajo were Professor James F. Smith, Paul Soreff, Frank LaRue, Mark Simonoff, Susan Shawn Roberts, Wally Mason, Anna Gallagher, Todd Howland, and Robert Bertsche. Ira Kurzban served as co-counsel in Avril. Harvery Kaplan, Maureen O’Sullivan and Jeremiah Friedman served as co-counsel in both Gramajo and Panjaitan. All of these attorneys deserve recognition for their work in these important cases.

The decisions in these cases can be found at Xuncax v. Gramajo and Ortiz v. Gramajo, 886 F. Supp. 162 (D. Mass. 1995) (consolidated cases); Todd v. Panjaitan, 1994 WL 827111 (D. Mass. Oct. 26, 1994); and Paul v. Avril, 901 F. Supp. 330 (S.D. Fla. 1994).