Amnesty Magazine


Courting Justice


A recent U.S. Supreme Court decision affirmed the power of a key statute for human rights enforcement. Reflections on the ruling by the lawyer who argued the case.

BY PAUL HOFFMAN

Paul Hoffman is former Chair of AIUSA and current Chair of AI’s International Executive Committee. He was the lead counsel for Dr. Alvarez in the U.S. Supreme Court.

On June 29 the United States Supreme Court handed a critical victory to the human rights movement by ruling that victims of egregious international human rights violations have a right to sue perpetrators found within the United States for monetary compensation.

The court’s decision in the case of Sosa v. Alvarez-Machain bolstered the Alien Tort Claims Act (ATCA), a 1789 statute allowing “aliens” to bring claims in U.S. courts for torts “committed in violation of the law of nations.” The court found that the statute authorized the federal courts to grant damage awards to victims of some human rights violations.

Humberto Alvarez-Machain was a doctor in Guadalajara, Mexico, suspected of involvement in the torture and murder of a U.S. Drug Enforcement Administration (DEA) agent in Mexico. In 1990 the DEA hired former Mexican police officer Francisco Sosa and others to kidnap Alvarez and bring him to the United States for trial. After Alvarez was acquitted of all charges, he sued the United States, the DEA agents involved, and Sosa for damages resulting from his kidnapping and detention.

In 1992 the U.S. Supreme Court rejected a claim that this kidnapping violated the U.S.-Mexico Extradition Treaty. But in his civil action under the ATCA, Alvarez ultimately won a judgment for damages in 1999 against Sosa that was upheld twice by the Court of Appeals. In December 2003, after 12 years of litigation, the Supreme Court agreed to hear the case.

The stakes in Alvarez reached far beyond his individual claims. The Bush Administration filed briefs arguing that all human rights cases filed under the ATCA were wrongly decided, and that the statute did not grant federal courts authority to enforce international human rights, unless Congress has passed specific legislation (such as the Torture Victim Protection Act) that specifically allows the courts to act. The Administration also claimed that the ATCA interferes with the executive branch’s conduct of foreign policy and could hamper its “war against terrorism.” The lawyers representing Francisco Sosa echoed these arguments.

Alvarez, supported by Amnesty International and numerous other groups, argued that the first Congress fully intended that the United States would fulfill its international obligations by opening the newly created federal courts to claims of violations of international law. Alvarez and his supporters also stressed the importance of making U.S. courts available to the victims of human rights violations and how the ATCA had become a symbolic beacon to victims around the world.

Although the Supreme Court rejected Alvarez’s particular claims, the court agreed with Alvarez and his supporters that U.S. courts have the power and responsibility to hear and decide human rights claims under the ATCA.

The ATCA had been gathering dust on the statute books until 1979, when Dolly and Joel Filartiga went to Brooklyn federal court to sue the man
responsible for the 1976 murder of Joelito Filartiga (Dolly’s brother and Joel’s son) in Asunción, Paraguay. The killer, Americo Peña-Irala, was a police official and had been the Filartigas’ neighbor in Asunción during the brutal dictatorship of President Alfredo Stroessner. The Filartigas claimed Peña-Irala tortured the 17-year-old Joelito in order to force him to sign a confession against his father, a vocal political dissident.

Peña-Irala fled to the United States on a tourist visa when the Filartigas tried to bring a case against him in Paraguay. But when a letter from Peña-Irala to his family was mistakenly delivered to the Filartiga home, the Filartigas steamed it open and read that Peña-Irala was living in New York. After reading the letter, they then resealed the envelope and delivered it to their neighbors. Dolly and Joel obtained U.S. visas and, with the help of the Paraguayan community in New York, found Peña-Irala living in Brooklyn with his mistress and selling hot dogs.

Dolly sought help from U.S. human rights groups to bring Peña-Irala to justice. Assisted by lawyers from the Center for Constitutional Rights and by a “friend of the court” brief filed by Amnesty International, the Filartigas’ helped establish the ATCA as an important tool against impunity.

Initially, a federal judge dismissed the Filartigas’ claims on the grounds that Paraguay’s treatment of its own citizens was not governed by international law. But the Court of Appeals rejected this reasoning. Specifically, the Court of Appeals found that torture was a violation of international law, and that torturers—like the pirates of the 18th century—were hostis humanii generis (enemies of all mankind) who could be brought to justice anywhere.

In the Filartiga v. Peña-Irala ruling, the appeals court relied on the 1975 United Nations Declaration Against Torture and All Other Forms of Cruel, Inhuman and Degrading Treatment or Punishment, which the United Nations promulgated following Amnesty International’s first international campaign against torture. The relationship between human rights activism and success in the courtroom could not have been clearer.

The Filartiga case led to dozens of other cases over the next two decades against human rights violators found within the United States, including Ferdinand Marcos and Radovan Karadzic. Under the ATCA, the federal courts accepted claims of torture, extra-judicial killing, prolonged arbitrary detention, genocide, war crimes, and crimes against humanity.

AIUSA created the Center for Justice and Accountability (CJA) in 1998 to bring ATCA cases against such human rights violators found within the United States. CJA, now an independent organization headed by former AIUSA Board member Sandy Coliver, has become one of the leading organizations in the United States litigating human rights cases under the ATCA.

In the mid-1990s ATCA litigators also began to go after corporations for their complicity in human rights violations abroad. In the first such case, Doe v. Unocal, Burmese villagers claimed that Unocal hired the Myanmar military to protect its natural gas pipeline operations, resulting in the widespread torture, murder and forced labor of Burmese villagers. There are now more than 20 corporate cases arising out of countries as diverse as Nigeria, Indonesia, Papua New Guinea, and Colombia. The central issue in each case is whether a corporation operating abroad is legally responsible—through its actions or inaction—for human rights violations committed by the military or by security forces protecting that corporation’s interests. The U.S. Court of Appeals in San Francisco is poised to make the first comprehensive decision on these issues after the Alvarez decision, in the Doe v. Unocal case.

The exact scope of the Alvarez ruling will be the subject of further litigation in cases across the country in the years to come. But under the court’s reasoning, the victims of torture, extra-judicial killings, “disappearances,” crimes against humanity, prolonged arbitrary detention, war crimes, and slavery-like practices are almost certain to find federal courthouses open to their claims. The Supreme Court’s decision has put us one step closer to achieving the goal of preventing the United States from becoming a safe haven for torturers.