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Justice & The Generals
El Salvador
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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. In suits against U.S. officials for violations such as torture, judicial scrutiny would cause less interference with foreign affairs than 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.

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 this country.

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 Corp., 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 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 it, 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 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 these 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.

Whatever one thinks of the merits of these cases, there is a striking difference between them and the ATCA cases, which can be brought against officials of any country and in which 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 developments emerging from the Karadzic decision are the corporate ATCA 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 because the corporation is headquartered in the United States or is otherwise doing business here. 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, the corporation 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 shock waves through the global corporate community; not only could they no longer hide their human rights practices, but they might be held liable for them 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, in which defendants were charged 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 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 U.S. Supreme Court declined to review the Circuit Court decision.

A third case, Manzanarez-Tercero v. C & Y Sportswear, Inc., is another 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 United States, 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 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 expanding the scope of ATCA litigation and offer some hope of 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, extrajudicial 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, 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; they present the possibility of 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 them. The great advantage of this litigation is that it is not controlled by governments but is a remedy available to any 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.

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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.