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Photo of censored documents Filartiga and Its Progeny: From Perpetrator to Commander
It all began in the United States with the landmark 1981 decision of the U.S. Court of Appeals for the Second Circuit, Filartiga v. Pena-Irala. This case 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 lawsuit. It would be brought by alien plaintiffs 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 United States 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 between countries or to a country's 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. 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 UN resolutions contributed to a new consensus that international law did govern a state's treatment of its own citizens and that a person had the right to be free from torture, even away 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--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 United States. In part this was based on the concept of universal jurisdiction and the fact 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 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 would be expanded. Those who ordered or authorized the violations and those with command responsibility who knew or should have known about violations and failed to stop them 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 to 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 1980s, sued the general they alleged was responsible. General Hector Gramajo was in the United States 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 United States 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, the 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 also 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, there have been two cases against 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 crimes against humanity.

These cases expanded the category of defendants that could be sued, and 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 nonderogable. 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 United States 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 extrajudicial execution and arbitrary detention (as differentiated from prolonged arbitrary detention) to the list of torts cognizable under the ATCA.

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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.