Michael Ratner, former legal director of the Center for Constitutional Rights (CCR), is currently a member of its board of directors. Beth Stephens is a CCR staff attorney. CCR has litigated most of the cases discussed in this article.
A FEDERAL COURT in Boston recently awarded $ 47.5 million in compensatory and punitive damages to eight Guatemalans and a U.S. citizen who alleged that they or their families had been murdered, tortured and/or had disappeared at the hands of troops directed by Hector Gramajo, a former Guatemalan general.
In two companion cases, Xuncax v. Gramajo, Civ. No. 91-11564, and Ortiz v. Gramajo, Civ. No. 91-11612, slip op. (D. Mass. April 12, 1995), the court upheld the principle enunciated 15 years ago by the Second Circuit in Filartiga v. Pena-Irala, 630 F2d 876, 890 (2d Cir. 1980), that “the torturer has become–like the pirate and slave trader before him, hostis humani generis, an enemy of all mankind.” As such, a torturer can be brought to justice wherever found.
Like Filartiga, the Xuncax case was brought under the Alien Tort Claims ACT, 28 USC a1350, A 200-year-old statute which grants district courts “original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” Building on Filartiga and subsequent cases, Xuncax held that the statute could be employed to sue not only for torture, but also for the international wrongs of summary execution, disappearance, arbitrary detention and cruel inhuman or degrading treatment.
Although the defendant Hector Gramajo did not personally commit the prohibited conduct, he was held liable under the doctrine of command responsibility, based on a finding that he “devised and directed the implementation of an indiscriminate campaign of terror against civilians such as plaintiffs and their relatives.” Xuncax, slip op. at 11.
As a U.S. citizen, Dianna Ortiz, the plaintiff in Ortiz v. Gramajo, could not avail herself of the Alien Tort Claims Act. She relied instead upon the recently passed Torture Victim Protection Act (TVPA), Pub. L. No. 102-256, 106 Stat. 731 codified at 28 USC @1350 (signed into law on March 12, 1992).
The legislative history of the TVPA stresses that it was adopted both to end any ambiguity regarding the interpretation of the Alien Tort Claims Act and to permit suits by U.S. citizens as well as aliens. The TVPA provides victims of torture and summary execution with a private cause of action in federal court against individuals who commit such abuses while acting under “actual or apparent authority, or color of law, of any foreign nation….” The Ortiz case found liability under the TVPA, applying the statute retroactively.
The Xuncax and Ortiz cases and a number of other Alien Tort Claims Act cases decided in the last 14 years built on the landmark decision in Filartiga. Filartiga dealt with the 1976 torture and murder of Joel Filartiga by a Paraguayan police official. The official, Americo Pena-Irala, fled to what he supposed was the safety of the United States. Filartiga’s family found him and sought a means to bring him to justice.
At the time, there was no precedent for such a lawsuit in the United States. Despite its age, the Alien Tort Claims Act had been rarely applied or cited, and had never been used to sue for a human rights violation committed abroad by an official of a foreign government against a citizen of his own country.
Further, although it was generally agreed that torture violated international law, U.S. courts still followed the old rule that international law did not apply to a government’s treatment of its own citizens. This tenet, however, underwent dramatic change over the past 50 years. The Nuremberg and Tokyo war crimes trials, the founding of the United Nations and the ratification of various human rights treaties and conventions, contributed to a new consensus that international law confers certain fundamental rights upon citizens as against their own government, including the right to be free from torture.
The Filartiga case was dismissed by the district court based on Second Circuit precedents holding that international law did not govern a government’s treatment of its own citizens. On appeal, however, President Carter’s Justice and State Departments, applying Carter’s Stated commitment to human rights, filed a brief supporting jurisdiction under the statute.
The case was argued before a sympathetic panel in the Second Circuit, and resulted in a resounding victory for the Filartigas and the cause of international human rights. 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. Thus, whenever an alleged torturer is found and served with process by an alien within our borders, 81350 provides federal jurisdiction.” Filartiga v. Pena-Irala, 630 F2d at 878.
Several facets of the Filartiga holding have been of great importance for subsequent cases. In particular, the court held that the “international law” referred to by @1350 was not fixed at the time the statute was enacted, but must be interpreted “not as it was in 1789, but as it has evolved and exists among the nations of the world today.” Id. at 881.
The Second Circuit also dispelled any doubts about the constitutionality of the statute, finding that Article III of the Constitution, which grants federal jurisdiction over cases “arising under the…laws of the United States,” permits adjudication of tort claims arising outside of the United States. Since international law is part of U.S. common law, these cases “arise under” the laws of the United States. Id. at 885-87.
To reinforce its assumption of jurisdiction, the Filartiga court also took cognizance of the fact that tort claims have traditionally been regarded as transitory actions which may be brought in jurisdictions other than where the claim arose. Thus, state court jurisdiction would have been proper over the claims asserted by the Filartigas because the acts alleged would violate Paraguayan law as well as the law of the forum.
But where the tort also violates international law, federal jurisdiction is preferable, for @1350 was enacted “as part of an articulated scheme of federal control over external affairs…where principles of international law are at issue’ (Id. at 885), and was designed to respond to “The Framers’ overarching concern that control over international affairs be vested in the new national government….” (Id. at 887).
Reach of @1350
Although subsequent cases have firmly entrenched the Filartiga principle, the first two cases which followed Filartiga set limits on the reach of @1350. The Alien Tort Claims Act was used in an attempt to obtain injunctive and declaratory relief against U.S. officials for complicity in acts of summary execution and torture of Nicaraguan civilians committed by the Contras, in Sanchez-Espinoza v. Reagan, 586 F.Supp. 596 (D.D.C. 1983), aff’d, 770 F2d 202 (D.C. Cir. 1985).
In a sparsely reasoned opinion, then-Judge Antonin Scalia (with then-Judge Ruth Bader Ginsburg concurring) held that sovereign immunity prevented the use of @1350 to sue officials of the U.S. Government, while noting in a footnote that the decision did not conflict with Filartiga. No subsequent case has considered the possibility of applying @1350 to officials of our own government.
In the next case, the Palestine Liberation organization (PLO) and the Government of Libya were sued in the District of Columbia by relatives of Israelis killed in an attack in Tel-Oren v. Libyan Arab Republic, 726 F2d 774 (D.C. Cir. 1984, alleging “terrorism” in violation of the law of nations. The case was dismissed with three lengthy opinions, each with a different rationale.
Judge Harry T. Edwards was willing to uphold Filartiga, but distinguished Tel-Oren because the murders were not carried out by state actors. Judge Robert H. Bork, in an opinion frequently cited by opponents of Filartiga, rejected the Filartiga precedent except in a narrow class of cases concerning piracy and the safe conduct of ambassadors. As of this writing, Judge Bork’s opinion is the only judicial opinion calling Filartiga into question. n1
Since then every decision has supported the result reached in Filartiga; most have awarded substantial damages.
A series of cases were brought against General Carlos Guillermo Suarez-Mason, an Argentine general responsible for the torture, disappearance and murder of hundreds of Argentines during the “dirty war.” n2 The suits resulted in over $80 million in judgments and expanded the Filartiga principles by applying it to a commanding officer, not the actual torturer.
Filartiga thus became a weapon that can be used against those who plan and approve massive human rights violations, as well as those who actually participate in the abuses. The Argentine cases also expanded the human rights violations which fall within the reach of @1350, upholding claims for summary execution, disappearance and prolonged arbitrary detention as well as torture.
The policies of the Reagan Administration presented a serious threat to Filartiga principles- A series of suits were brought on behalf of murdered and tortured Filipinos against Philippine President Ferdinand Marcos after he fled to Hawaii. One of the cases was appealed after a default. This time the U.S. Department of Justice filed a brief with the Ninth Circuit reversing its position in the original Filartiga case and asking that the cases against Marcos be dismissed.
The court rejected the Reagan Administration arguments, however, in a 1992 opinion upholding Filartiga- In re Estate of Marcos, Human Rights Litigation, Trajano v. Marcos, 978 F2d 493 (9th Cir. 1992), cert. denied, 113 S.Ct 2960 (1993) n3 The Trajano decision diverged somewhat from Filartiga by applying Philippine law to define the underlying cause of action and determine damages. n4 However, a later ninth Circuit decision, In re Estate of Marcos, Human Rights Litigation, Hilao v. Marcos, 25 F3d 1467 (9th Cir. 1994) (petition for cert. pending), followed Filartiga in holding that the “tort” at issue in these cases is defined by international law.
Most of the recent Alien Tort Claims Act cases have not involved the actual torturer, but have instead applied command responsibility principles to hold responsible the high-level leaders who formulate and implement programs of human rights violations. The cases against Hector Gramajo are of this type: the complaints alleged that the defendant “designed, ordered, implemented and directed a program for the systematic violation” of human rights.
Likewise, in Todd v. Panjaitan, No. 92-12255, slip op. (D. Mass. Oct. 26, 1994) (plaintiff awarded $14 million in damages), an Indonesian general was held responsible for the 1991 massacre in East Timor in which over 200 Timorese were gunned down, because of his role in planning and directing a program of human rights abuses which included the massacre. The plaintiff in that case was the mother of a New Zealand college student killed in the massacre.
In a hotly contested case, Paul v. Avril, No. 91-399, slip op. (S.D. Fla. June 30, 1994)1 six leaders of the Haitian opposition were awarded a total of $41 million against Prosper Avril, the former dictator and longtime advisor to the Duvaliers, who ordered the leaders detained and tortured in separate incidents in 1989 and 1990. Avril fought the case until a magistrate ordered him to come to Miami for deposition, then defaulted.
Two recent Filartiga cases in the Southern District of New York, Doe v. Karadzic, No. 93-1163, slip op. (S.D.N.Y. Sept. 7, 1994), appeal docketed, No. 94-9069 (2d Cir. Oct. 18, 1994), filed against the leader of the Bosnian Serbs on behalf of the victims of the war in Bosnia-Herzegovina, raised several novel issues. The court dismissed both, however, on a narrow ground which left unresolved most of the key issues. The court found that both @1350 and the TVPA are limited to cases in which the defendant was acting under color of law of a recognized government.
Plaintiffs’ appeal argues first, that certain international law violations such as genocide and war crimes can be committed by a non-state actors; second, that a de facto regime such as that of the Bosnian Serbs is bound by international law even in the absence of formal recognition.
If the Second Circuit reverses the dismissal, several interesting issues will remain to be decided. The Doe case is a class action filed on behalf of the women and men victims of Bosnian Serb atrocities, while Kadic seeks injunctive relief. The lawsuits also expand the category of violations actionable under 813501 pleading causes of action for genocide and war crimes. n5 Both seek to apply international law remedies for violence against women.
The potential impact of these lawsuits on the lives of victims of human rights abuses is shown by a 1993 lawsuit against an Ethiopian security official, on behalf of three women tortured by him in Ethiopia in the late 1970s. Abebe-Jiri v. Negewo, No. 90-2010, slip op. (N.D. Ga. Aug. 20, 1993), appeal docketed, No. 93-9133 (11th Cir. Sept. 10, 1993).
The case began when one of the plaintiffs, a waitress at a hotel restaurant in Atlanta, recognized her torturer working in the same hotel. At trial in May 1993, the defendant, representing himself, cross-examined the three women about the torture. The exchanges between the former victims and the man they accuse of torturing them produced powerful moments, including one in which a plaintiff asked the defendant what had happened to her sister, who disappeared while in detention. The judge issued at $1.5 million judgment for plaintiffs in August 1993, on the basis of both torture and cruel, inhuman or degrading treatment.
Litigating Filartiga cases has become an important weapon in the fight to bring torturers and others to justice. Some of the cases may result in collectible money judgments, if not now, then at some point in the future.
These cases, however, are concerned with much more than just money. Notorious human rights abusers have expressed concern about the possibility of litigation when they enter the United States. The plaintiffs, all of them victims of gross human rights abuses, express a tremendous satisfaction from knowing that they have taken action against the person who caused them such agony. That satisfaction comes from the mere filing of a lawsuit, from confronting the defendant in court or forcing him to flee from the United States, and from obtaining a judgment from a U.S. court which makes a formal record of the human rights violations and of the defendant’s responsibility.
The Filartiga cases contribute to a vital long-term goal: creating a world in which human rights abuses are rare, and those that do occur are promptly prosecuted, with the abuser punished and the victim compensated. Litigation contributes to this goal in two ways: by strengthening the movement for human rights in the countries where the abuses take place and in the United States, and by strengthening and expanding international human rights law.
n1 Judge Roger Robb, the third judge in Tel-Oren, found that the case presented a political question because the PLO was not a recognized government and because terrorism was not universally accepted as a violation of internationally protected rights. His reasoning would not necessarily apply to cases presenting the facts of Filartiga.
n2 Forti v. Suarez-Mason, 672 F.Supp. 1531 (N.D. Cal. 1187), on reconsideration, 694 F.Supp. 707 (N.D. Cal. 1988); Quiros de Rapaport v. Suarez-Mason, No. 87-2266, slip op. (N.D. Cal. Apr. 111 1989); Martinez-Baca v. Suarez-Mason, No. 87-2057, slip op. (N.D. Cal. Apr. 22, 1988).
n3 The consolidated cases against the Marcos estate — a class action and a group of individual cases — were tried in Hawaii in phases over the past three years, with a punitive damage award of $ 1.2 billion and compensatory damages of over $ 770 million. In re Estate of Marcos, MDL No- 840 (D. Hawaii 1990).
n4 Choice of law and damage issues were decided by the district court on remand in Filartiga. Filartiga v. Pena-Irala, 577 F.Supp. 860 (E.D.N.Y. 1984).
n5 Kadic also pleads rape, enforced prostitution, forced pregnancy, and sex and ethnic inequality as separate causes of action.