|No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.|
On appeal, the Second Circuit (Filártiga v. Peña-Irala, 630 F.2d 876) reversed, overruling its prior interpretation of international law and applying the plain language of the ATCA. The landmark decision held that the ATCA permitted the family of a torture victim to sue the person responsible in a US federal Court, after obtaining personal jurisdiction over the defendant in the US. It held that:
[d]eliberate 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, §1350 provides federal jurisdiction. (630 F.2d at 878)
The basic principles of the Filártiga decision have been adopted with only minor deviations in subsequent cases, including cases against former dictator of the Philippines Ferdinand Marcos, against Guatemalan General Hector Gramajo, and against the leader of the Bosnian-Serb forces Karadzic.
The Torture Victim Protection Act
The Torture Victim Protection Act (the "TVPA") was enacted into law in March 1992 with the signature of President Bush. A major piece of human rights legislation, the TVPA sets forth an explicit federal cause of action for torture and summary execution committed anywhere in the world, so long as certain key requisites are satisfied. It thus represents an important accomplishment for the international movement to hold human rights violators accountable.
The basic elements of a TVPA claim are clearly stated in the statute, which defines the cause of action for torture as follows:
An individual who, under actual or apparent authority, or under color of law, of any foreign nation
(1) subjects an individual to torture shall, in a civil action, be liable for damages to that individual; or
(2) subjects an individual to extra-judicial killing shall, in a civil action, be liable for damages to the individual's legal representative, or to any person who may be a claimant in an action for wrongful death. (TVPA § 2(a))
The TVPA is described as having multiple purposes: expanding the availability of the ATCA to US citizens as well as aliens; providing an unambiguous and modern basis for a cause of action for torture and summary execution; and responding to the doubts raised by Judge Bork in the case of Tel-Oren v. Libyan Arab Republic.
Until recently, litigators and scholars working in this area of human rights had assumed that one of the ATCA cases would eventually reach the Supreme Court with the risk that the Court might reject the Filártiga interpretation of the ATCA and its subsequent application. The passage of the TVPA relieves much of the pressure for Supreme Court action. The TVPA now provides for a clear cause of action for two of the most common international human rights violations: torture and summary execution. The passage of the statute also indicates that Congress approves of the interpretation the judiciary has given the 200-year old ATCA.
Peter Danchin, Columbia University