|No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.|
Human Rights Cases Post Filártiga
In the two decades following Filártiga, a series of cases made a number of important advances in establishing the civil liability of those responsible for human rights violations. In Filártiga, the actual perpetrator had been sued; in future cases the range of defendants was expanded. Those who ordered or authorized the violations or those persons with command responsibility who knew, or should have known, and failed to stop the violations 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 Filártiga, had come into the United States where he was served with legal process. The suits resulted in over $80 million in judgments and expanded the Filártiga 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 1980's, sued the general they alleged was responsible. General Hector Gramajo was in the US at the time studying for a degree at Harvard's Kennedy School of Government. 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 the plaintiffs and their relatives." Subsequent to this decision General Gramajo was barred from the US under provisions of its immigrations laws.
Other cases include Todd v. Panjaitan (an Indonesian general held liable for the death of a young student-activist during the 1991 East Timor Dili massacre), Paul v. Avril (the dictator-president of Haiti was held liable for the torture of five political opponents), and a series of cases against the estate of the former dictator-president of the Philippines, Ferdinand Marcos. The major recent case affirming such liability was Kadic v. Karadzic.
Not only did these cases expand the category of defendants that could be sued, but also 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 constituted a violation of customary international law and met the ATCA requirements. Here, the court relied specifically on Articles 3, 5, and 9 of the Universal Declaration of Human Rights as evidence of customary international law due to the fact that the US at that time had not ratified the ICCPR or the Torture Convention.
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. 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 non-derogable. In Suarez-Mason, the court determined that cruel, inhuman, and degrading treatment was not definable and did not have the requisite international consensus. However, in Xunax v. Gramajo, decided after Suarez-Mason and ratification of the Convention Against Torture, the court found that this did constitute a norm of customary international law that was actionable under the ATCA, but with a limitation. The scope would have to be the same as the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth and Fourteenth Amendments to the US Constitution. The Xunax court also added summary or extra-judicial execution and arbitrary detention (as differentiated from prolonged arbitrary detention) to the list of torts recognizable under the ATCA. In doing so, the Court relied upon Articles 3, 5, 9, 10, and 11 of the Universal Declaration.
Karadzic: Opening the Doors to Non-State Actors
A major breakthrough in the law with regard to international law violations for ATCA purpose came with the Second Circuit's opinion in Kadiz v. Karadzic. The problem the plaintiffs faced in bringing this action was that Karadzic, an unrecognized foreign leader, was not acting on behalf of the state when he authorized or approved massive human rights abuses. These included a campaign of murder, rape, forced impregnation and other forms of torture against Bosnian Muslims and Croats. However, the plaintiff's lawyers argued that certain international law violations could be committed by individuals without any involvement by the state (i.e. by "non-state actors."). These included the crimes of genocide, crimes against humanity, and war crimes. In its judgment, the court recognized that non-state actors could indeed be convicted for genocide and war crimes.
Attempts to Sue US Officials
While ATCA and TVPA suits against foreign officials have been successful, it is a quite a different story with regard to suing US officials for human rights violations committed overseas. To date, the courts have been hostile to this type of litigation. The leading case in the area is Sanchez-Espinoza, a suit brought by victims of the contras in Nicaragua against various US officials including President Reagan, the Director of the CIA and others responsible for funding and directing the war against the Nicaraguan government.
The case failed because the court reasoned that as the actions were official, the suit was in essence challenging official actions of the United States. As there was no waiver of sovereign immunity, the case was dismissed. The court distinguished 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 the separation of powers. The chances of overruling Sanchez are remote. Two of the three judges in the Circuit Court are now Justices of the Supreme Court: Justices Scalia and Ginsberg.
Peter Danchin, Columbia University