Under a seldom-used 1789 statute, Paraguayan citizens were permitted to use the U.S. courts to sue a Paraguayan police chief for wrongful death, and they won more than ten million dollars in damages.
In the 1960’s, the world became aware of the rampant practice of torture around the world. Amnesty International’s reports recounted torture on every continent and in every Latin American country save one, Costa Rica. The 1960’s and 1970’s also saw many valiant efforts to confront torturers. Nongovernmental organizations, activist attorneys, relatives of torture victims, international organizations, and some national governments used a variety of strategies to hold torturers accountable.
Jimmy;human rights
The regime of Alfredo Stroessner in Paraguay was known for its authoritarian, repressive rule. The police and military functioned with minimal restraint, and accusations of mistreatment and torture were common. Human rights organizations such as Amnesty International and the International League for Human Rights accumulated extensive evidence in support of such allegations.
Joelito Filártiga Speratti was one Paraguayan torture victim. On March 29, 1976, the seventeen-year-old was kidnapped and tortured to death by four men, including Americo Norberto Peña-Irala, then inspector general of police in Asunción. The entire torture and interrogation session, which included electric shocks to Filártiga’s fingertips and penis, was tape-recorded. Later, Joelito’s sister, Dolly, was brought to Peña-Irala’s home to view her brother’s corpse. The apparent intent was to harass Joelito and Dolly’s father, physician and human rights activist Joel Filártiga. All of these events have been corroborated by independent autopsies and the judgment of human rights organizations.
Joel and Dolly sought help from the Paraguayan police and courts. Instead of prosecuting a murder charge against General Peña-Irala, the authorities arrested, shackled, and threatened Dr. Filártiga’s attorney. Peña-Irala threatened to kill more members of the Filártiga family. The Filártigas’ attorney was later disbarred, and authorities warned that Dr. Filártiga could lose his medical license.
Soon after entering the United States in 1978, Peña-Irala was arrested as an illegal alien. Paraguayan exiles and human rights groups, among them the Council on Hemispheric Affairs, hoped to hold Peña-Irala accountable. An Amnesty International staff member alerted the Center for Constitutional Rights, which worked with Dolly and Joel Filártiga to sue for Joelito’s murder and torture. They had little difficulty in establishing that torture had occurred the problem was in demonstrating that U.S. courts had the ability to hear their case.
A long-dormant federal statute, the Alien Tort Statute of 1789, opened a possibility. That statute provided that torts (the assault, battery, and wrongful death were torts) might be heard by federal courts if committed “in violation of the law of nations or a treaty of the United States.” This statute, used to permit claims against pirates in the eighteenth century, might be applied if the court found that torture violated the “law of nations.”
At first, the Filártigas were unsuccessful. District court judge Eugene H. Nickerson dismissed the case. He questioned whether government officials’ treatment of their own nationals could be part of the “law of nations” in the old statute. That statute had been used against eighteenth century pirates but not against twentieth century torturers. Nickerson also indicated that Paraguay might be a better place for the Filártigas to bring their case. The Paraguayan Supreme Court had recently decided that they could sue in that country’s courts.
The Filártigas had ample reason to be skeptical of the Paraguayan courts, which would soon dismiss their case. They therefore challenged Judge Nickerson’s decision, successfully, in the Federal Court of Appeals for the Second Circuit. Three judges heard the case: Chief Justice Wilfred Feinberg, Amanda Kearse, and Irving Kaufman. Judge Kaufman asserted the significance of his court’s opinion as “a small but important step in the fulfillment of the ageless dream to free all people from brutal violence.”
In writing his decision, Kaufman answered three important questions. First, does torture violate the law of nations? The court looked not to the law of nations at the time of the Alien Tort Statute but at the law proclaimed in post-World War II human rights documents such as the United Nations Universal Declaration of Human Rights(1948);
Second, is the law of nations, specifically the prohibition of torture, enforceable against individuals as well as against states? The Paraguayan government agreed to the prohibitions of torture in the law of nations. In fact, it had been more willing to accept human rights commitments than had the United States. The clear intent of human rights documents had been to enhance the status of individuals. Individuals were granted basic rights, and they were also required to bear responsibilities. Individuals who tortured on the Paraguayan government’s behalf were the modern counterpart of pirates or slave traders and could be held accountable.
Third, can a U.S. court apply the law of nations when a foreign national tortures another foreign national outside the United States? An appellate judge from the same circuit wrote in Dreyfus v. von Finck (1976) that “violations of international law do not occur when the aggrieved parties are nationals of the same state.” Judge Kaufman argued that this statement was “clearly out of tune” with current international law and with the foreign policy of the U.S. government. The law of human rights means that all people are granted fundamental protections from their own governments.
The appellate court left key issues undetermined. It would be left to the district court to decide whether Peña-Irala was in fact liable and whether liability was to be determined by Paraguayan or U.S. law. Judge Kaufman was careful to indicate that his opinion was not an attempt to turn courts “into some kind of roaming human rights commission.” The broad policy response was appropriately left to Congress and the executive branch of government.
Under dictator Alfredo Stroessner, Paraguayan police frequently used torture while interrogating suspected communists during the 1960’s.
Soon thereafter, Peña-Irala returned to Paraguay, and Judge Nickerson’s court held for the Filártigas by default. Magistrate John L. Caden indicated that under Paraguayan law it would be proper to compensate the Filártigas only for wrongs that they suffered but not to levy additional damages to punish Peña-Irala. Dolly and Joel were each awarded $150,000 for emotional pain and suffering, loss of companionship, and disruption of family life. Dolly would receive an additional $25,000 for future psychiatric expenses, and Joel would receive $50,000 for funeral and medical expenses as well as lost income. The total damage award of $375,000 was not satisfactory to the Filártigas.
In his damages opinion in 1984, eight years after the torture, Judge Nickerson suggested that compensating the Filártigas was not enough: Punitive damages were necessary, not only to give Peña-Irala his due but also to deter future torturers. Dolly and Joel were each awarded $5 million in punitive damages plus compensation for pain and suffering, medical expenses, and court expenses, for a total of more than $10 million.
The favorable verdict was helped by fortuitous circumstances. The torturer, Peña-Irala, had come to the United States and had been apprehended as an illegal alien. The administration of President Jimmy Carter was receptive to the court’s tackling what other presidents would have viewed as a foreign policy matter reserved for the executive branch. The U.S. Departments of State and Justice urged jurisdiction, arguing that torture violated the law of nations.
The verdict was a reflection of a viable human rights movement in the United States. The three judges were all Democratic appointees who were sympathetic to human rights concerns. Amnesty International, the International Human Rights Law Group, the Council on Hemispheric Affairs, and the Washington Office on Latin America submitted briefs as amicus curiae (friends of the court). Peña-Irala, however, was no longer in the United States. On May 22, 1979, the court of appeals refused to delay Peña-Irala’s deportation; on May 24, the U.S. Supreme Court also refused. The courts were able to give the Filártigas a hearing and to deport their torturer; they were not able to enforce their judgment.
Human rights activists responded to the Filártiga v. Peña-Irala decision with great enthusiasm and hope. The decision exposed the deeds of a Paraguayan torturer and the repressiveness of the Paraguayan government. Many activists thought that the decision would mark the beginning of greater use of U.S. courts to hold human rights violators accountable. Plaintiffs and their lawyers sought to apply Filártiga to repression and terror in several countries, including Israel, Nicaragua, and Argentina.
Subsequent decisions dampened the enthusiasm, however. The Filártiga court carefully delineated limits to its applicability. Other courts refused to extend the Filártiga rationale to new circumstances or discounted it altogether. Former Secretary of State Dean Rusk labeled it a “legal oddity.”
Victims of Middle Eastern terrorism found that they were without a remedy. They hoped to recover damages from the government of Libya, Arab American organizations, and the Palestine Information Office following a Palestine Liberation Organization
Victims of human rights abuses by the Nicaraguan rebels, or Contras, hoped that the Filártiga rationale would apply to them. In Sanchez-Espinoza v. Reagan (1985),
Courts have indicated that many human rights violations are violations of the “law of nations” and will not enable victims to bring actions under the Alien Tort Statute. Forti v. Suarez-Mason dealt with repression in Argentina. The district court suggested that torture was clearly an international tort, and disappearance was probably one, too. “Cruel, inhuman, and degrading treatment” short of torture, however, was not enough.
Courts have thus been reluctant to extend the Filártiga decision to new circumstances. Victims of human rights abuse or their relatives will stand a good chance of success if, as with the Filártigas, an alien is suing; an international tort has been committed (not mistreatment, but torture or disappearance); the tort was committed by an individual alien, not a government or organization; that individual was acting under “color of authority,” not as a private citizen or member of a private army; the U.S. administration signals that it will condone or encourage action against another country’s national; and “success” is defined as vindication before the court, rather than a recovery which will compensate for the abuse. “Success” for human rights plaintiffs usually extends beyond relief in a single case. The Filártigas’ case helped focus public attention on human rights violations in Paraguay. It contributed to the Stroessner regime’s eroding legitimacy and may have strengthened the forces working for democratization in Paraguay.
Filártiga and its progeny catalyzed new actions by human rights lawyers. A Connecticut court, using Filártiga, drew on the United Nations Charter in assessing prison conditions. Suits against the Marcos family, former rulers of the Philippines, also drew on Filártiga. Because the fate of torture victims in U.S. courts was uncertain, the New York-based Lawyers Committee for Human Rights urged the adoption of a torture victim protection act. This act would grant torture victims access to federal courts.
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Claude, Richard Pierre, and Burns H. Weston, eds. Human Rights in the World Community: Issues and Action. 2d ed. Philadelphia: University of Pennsylvania Press, 1992. Claude’s chapter titled “The Case of Joelito Filártiga in the Courts” provides background on the Filártigas and relates the suffering of Joel, Joelito, and Dolly. Collection includes selections on every aspect of the human rights issue, study questions, and bibliography. -
Filártiga v. Peña-Irala, 630 F.2d 876 (1980); 577 F.Supp. 860 (E.D.N.Y. 1984). The Filártiga opinions by their nature contain legal jargon but can be appreciated by the general reader. Judge Irving Kaufman’s 1980 opinion is written to speak to the world, especially its torturers. Judge Nickerson’s opinion is notable for its pioneering effort to determine a remedy for torture. -
Holt, Karen E. “Filártiga v. Peña-Irala After Ten Years: Major Breakthrough or Legal Oddity?” Georgia Journal of International and Comparative Law 20 (1990): 543-569. Presents a cogent argument leaning toward the conclusion that the decision is a legal oddity. Good review of subsequent decisions. Includes extensive footnotes. -
Kaufman, Irving R. “A Legal Remedy for International Torture?” The New York Times Magazine, November 9, 1980, 44-52. Readable account by the judge who wrote the decision. Describes how torture came to be seen as contrary to the law of nations and suggests that the U.S. president, Congress, and the American judiciary can play important roles in the abolition of torture. -
Lambert, Peter, and Andrew Nickson, eds. The Transition to Democracy in Paraguay. New York: St. Martin’s Press, 1997. Features a chapter on Alfredo Stroessner’s oppressive regime. -
Rodley, Nigel S. The Treatment of Prisoners Under International Law. Oxford, England: Clarendon Press, 1987. Analysis of prisoners’ rights and remedies indicates that there has been some progress in international protections. Presents a brief summary of Filártiga and its significance. Includes index. -
Wolfe, James H. Modern International Law: An Introduction to the Law of Nations. Upper Saddle River, N.J.: Prentice Hall, 2000. Presents analysis of the law of nations, human rights, and international law. Includes a chapter on Filártiga and Pinochet.
Tokyo Declaration Forbids Medical Abuses and Torture
United Nations Issues a Declaration Against Torture
Carter Makes Human Rights a Central Theme of Foreign Policy
United Nations Issues a Conduct Code for Law-Enforcement Officials
Amnesty International Works to Prevent Torture
Paraguay Embraces Democracy