|No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.|
Filártiga: The Use of Civil Remedies for Gross Human Rights Violations in US Courts
Although America played a leading role in the promulgation of the Universal Declaration of Human Rights and in converting the Declaration into the two principal human rights covenants, the US itself is a party to only a few international human rights agreements. The reason for this is that Congress has to give its consent to the ratification of UN documents and has shown itself reluctant to follow the foreign policy of several American presidents. It was only in 1990 that the Senate finally gave its consent to the ratification of the UN Torture Convention. RUDs ("reservations, understandings and declarations"), including a declaration that the convention was not self-executing, accompanied that consent, and ratification was postponed until enactment of implementing legislation in 1994 (see 18 U.S.C. §§ 2340-2340B).
The US is one of the countries which has a adopted a "dualist" (as opposed to "monist") approach to international law. International agreements ratified by the US don't usually have direct effect within the domestic legal sphere unless they are declared to be self-executing. In order to invoke such international agreements in domestic courts, they must be implemented in national legislation.
Civil Remedies for Gross Human Rights Violations
Many in the human rights community focus on criminal remedies for pursuing individual human rights abusers. The disadvantages of this approach are that only a few of the worst abusers will be ever tried by the proposed International Criminal Court or by national courts. Criminal cases on both the national and international level require the cooperation of officials. While some cases can be initiated by individuals, they cannot be fully prosecuted without prosecutors and /or investigative judges. Political or other concerns can prevent any prosecutions from going forward.
For these reasons civil remedies have an important role to play as a means of enforcing human rights norms. Courts in the United States have pioneered the use of civil remedies to sue human rights violators, under the Alien Tort Claims Act (the "ATCA" or "sec. 1350") and the Torture Victim Protection Act (the "TVPA.") Such litigation has resulted in billions of dollars in judgments. These types of 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.
Filártiga and the Alien Tort Claims Act
The Alien Tort Claims Act, 28 U.S.C. § 1350 (1988) 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.
This single sentence, enacted as part of the Judiciary Act of 1789, was virtually ignored for almost 200 years. Since 1980, however, it has vaulted to a prominent role in the enforcement of international human rights norms. Joel Filártiga and his daughter Dolly Filártiga filed a lawsuit in the late 1970's with the help of the Center for Constitutional Rights (the "CCR") against a Paraguayan police officer that had tortured and killed their 17-year-old son and brother, Joelito Filártiga, in 1976. The officer, Americo Norberto Peña-Irala, slipped out of Paraguay after the Filártigas charged him with the murder; he was living in New York City at the time the lawsuit was filed.
The complaint relied on the jurisdiction of the ATCA, charging that torture by a Paraguayan police official constituted a tort in violation of the law of nations. The District Court granted Peña-Irala's motion to dismiss for lack of subject matter jurisdiction. The court relied on dicta in two Second Circuit opinions, which indicated that the law of nations does not apply to a government's treatment of its own citizens.
Peter Danchin, Columbia University