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Trial History: Filartiga v. Pena-Irala
by Amanda Smith

On March 29, 1976, Joelito Filartiga, the seventeen-year-old son of Dr. Joel Filartiga, a prominent opponent of the Paraguayan government, was kidnapped and tortured to death by Americo Norberto Pena-Irala, then the Inspector General of Police in Ascension, Paraguay. The next day, Pena brought Dolly Filartiga, Joelito's sister, to Pena's home and confronted her with the body of her brother, which showed clearly the marks of severe torture. At that point, Inspector Pena made it perfectly clear that Joelito had been murdered in retaliation for his father's political activities, stating: "Here you have what you have been looking for, for so long and what you deserve…." Dr. Filartiga attempted to seek justice in the courts of Paraguay for the murder of his son, but his attorney was arrested and threatened with death by Inspector Pena.

Ms. Filartiga, the victim's sister, fled Paraguay and sought political asylum in the United States in 1978. That same year, Inspector Pena also entered the United States under a visitor's visa. Pena overstayed his visa and apparently intended to remain indefinitely in the United States.

To Ms. Filartiga's horror, she learned of Pena's residence in the United States, she alerted the INS and, in addition, attempted to do something that had never been done successfully before-she filed a civil suit in federal court in New York seeking compensation and punitive damages against Pena for the torture and wrongful death of her brother. Ms. Filartiga's suit was unusual because she was suing for compensation for an act committed outside of the United States by a citizen of another country, against a citizen of that country. Previously, courts had refused to consider similar cases, finding that they had no proper jurisdiction to decide them.

What Ms. Filartiga and her lawyers did, however, was to make use of a very old federal statute called the Alien Tort Claims Act (or "ATCA"), which was passed by the First Congress of the United States. This Act states that "the district courts shall have 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." The ATCA was originally used to allow aliens-persons who are not United States citizens-to recover in United States courts for crimes like piracy on the high seas. What Ms. Filartiga and her lawyers attempted to do was to "modernize this law by showing that, just as piracy was a crime against the "law of nations" when the ATCA was passed, torture was a crime against the "law of nations" in 1979. In May of 1979, the federal district court in New York-the trial court-considered the argument of Ms. Filartiga's lawyers that the court did have jurisdiction to take the case. The judge in that case noted the strength of Ms. Filartiga's argument that torture violates international law, but felt unable to make such a novel ruling. The trial court dismissed Ms. Filartiga's case on jurisdictional grounds on May 15, 1979.

Ms. Filartiga immediately appealed and on October 16, 1979, her case was heard by the Second Circuit Court of Appeals, the federal appellate court. Ms. Filartiga and her attorneys submitted evidence and declarations from international legal scholars about the nearly unanimous prohibition against torture among the nations of the world. The court considered these opinions and the various international treaties prohibiting torture and found that torture indeed did violate the law of nations as it exists in the world today. In its ruling of June 30, 1980, the court held that United States courts had jurisdiction over Ms. Filartiga's claims.

Because the appellate court had held that the trial court did have the power to hear Ms. Filartiga's case, the trial court reviewed the case again. Inspector Pena had been deported from the United States in 1979 because of visa violations, and a default judgment was entered against him in the amount of $10,385,364. The result of the ruling in this landmark case was the creation of a crucial new remedies for victims and survivors of torture in their quest to hold their torturers accountable for their crimes. As the law evolved from this critical starting point, it expanded to recognize within its ambit other violations of the law of nations, such as disappearances and arbitrary detention, as well as the liability of commanders.
Amanda Smith About the Author
Amanda Smith graduated from the University of Michigan Law School in 1997 and joined Brobeck, Phleger & Harrison LLP in San Francisco in 1998. Her practice focuses on general complex litigation and policyholder-side insurance coverage litigation. Amanda maintains an active pro bono practice, including litigation of cases under the Alien Tort Claims Act and Torture Victim Protection Act in conjunction with the International Human Rights Law Clinic at the University of California, Berkeley, Boalt Hall School of Law.

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Learn about three key human-rights cases being tried in U.S. courts.

Trial History: Filartiga v. Pena-Irala

Case History: Ford et al. v. García et al.

Trial History: Romagoza et al. v. García et al.

Torture Victims
Protection Act
Civil trials have an important role to play as a means of enforcing human rights norms. 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.

Command Responsibility   Military commanders are responsible for the acts of their subordinates. If subordinates commit violations of the laws of war and their commanders fail to prevent or punish these crimes, then the commanders also can be held responsible.