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1-1-2002
Romagoza v. Garcia: Proving Command
Responsibility Under the Alien Torts Claims Act
and the Torture Victim Protection Act
Beth Van Schaack
Santa Clara University School of Law, bvanschaack@scu.edu
Follow this and additional works at: htp://digitalcommons.law.scu.edu/facpubs
Recommended Citation
59 Guild Prac. 170
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BETH VAN SCHAACK
ROMAGOZA v. GARCIA:
PROVING COMMAND
RESPONSIBILITY UNDER
THE ALIEN TORT CLAIMS
ACT AND THE TORTURE
VICTIM PROTECTION ACT
Introduction
On July 23, 2002, in the courtroom of Judge Daniel T.K. Hurley, a South
Florida jury returned a $54.6 million verdict, encompassing punitive and
compensatory damages, in favor of three Salvadoran survivors of torture.
The case, Romagoza v. Garcia,I was brought by three Salvadoran refugeesDr. Juan Romagoza, Carlos Mauricio, and Neris Gonzalez-against two
former Ministers of Defense of El Salvador. Plaintiffs were represented by
the non-profit Center for Justice & Accountability, a San Francisco-based
human rights law firm, with pro bono assistance from Bay Area attorneys of
Morrison & Foerster LLP, James K. Green of West Palm Beach, and Prof.
Carolyn Patty Blum and the University of California Boalt Hall School of
Law International Human Rights Clinic. The defendants were represented
by Kurt Klaus, Jr., a criminal defense and family law solo practitioner based
in Florida.'
The verdict heralds a major victory in the worldwide fight against impunity for human rights violations. Most significantly, it is one of the first
modern cases brought under the doctrine of command responsibility in which
the defendant commanders testified in their own defense. This case cements
the doctrine into United States law. The other recent case in which this occurred, Fordv. Garcia,3 was brought in the same courtroom and against the
same two generals by families of the four United States churchwomen who
were raped and murdered by members of the Salvadoran National Guard in
4
In November 2000, a jury rendered a verdict in that case that the
1980.
generals could not be held liable for the crimes, apparently because the jury
was not satisfied that the two generals had "effective control" over their
subordinates. The Romagoza case thus provides an important precedent for
Beth Van Schaack, a consulting attorney with The Center for Justice &
Accountability and a former associate with Morrison &Foerster LLP, was a member
of the trial team. Ms. Van Schaack teaches international law at Santa Clara
University School of Law.
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romagoza v. garcia:proving command responsibility
171
other human rights cases brought against military commanders for the human rights violations of their subordinates and also has in part rectified what
many observers felt was an unfair result in the Ford case.
The Statutory Basis for the Suit: the Alien Tort Claims Act
and the Torture Victim Protection Act
The case was brought under two United States statutes that allow victims
of human rights violations to sue perpetrators and other responsible parties
in United States courts. The first statute, the Alien Tort Claims Act (ATCA),
was enacted in 1789 as part of the First Judiciary Act, which provided that
"the district court shall have.., cognizance, concurrent with the courts of the
several States, or the circuit courts, as the case may be, of all causes where
an alien sues for tort only in violation of the law of nations or a treaty of the
United States." 5 This latter language allowing aliens to sue for torts committed in violation of the laws of nations was later codified as the ATCA. 6 Thus,
[t]he Founding Generation understood that the law of nations was part of
American common law and that a tort violating that law would be cognizable at common law just as any other tort would be. The Alien Tort Clause
simply provided federal jurisdiction over these common-law torts, giving
aliens who could allege not just a tort but a tort in violation of the law of
nations the option of bringing suit in federal, rather than state, court.7
The ATCA was little used until 1978, when the Filartigas, the family of a
Paraguayan youth who had been kidnapped and murdered, learned that the
policeman who tortured the young man to death was living in the United
States. The family enlisted the help of the Center for Constitutional Rights
in New York, which brought suit under the ancient statute. The district court
dismissed the case on jurisdictional grounds, ruling that it felt it was bound
by precedent to construe the "law of nations" narrowly to not reach the treatment by state agents of citizens of that state. However, the Second Circuit
reinstated the case by announcing: "Construing this rarely-invoked provision, we hold that deliberate torture perpetrated under color of official authority violates universally accepted norms of international law of human
rights, regardless of the nationality of the parties."' The Filartigas were eventually awarded over $10 million in damages and the defendant was deported.
The modem-day cause of action under the ATCA was bolstered by a
more recent and complementary statute, the Torture Victim Protection Act
(TVPA).9 The passage of the TVPA was mandated by the United States'
signature and eventual ratification of the 1984 Convention Against Torture
and Other Cruel, Inhuman and Degrading Treatment or Punishment,' 0 which
obliges states party to enact implementing legislation allowing victims of
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torture to "prosecute or extradite" suspected torturers and provide victims
with a right to reparation." Accordingly, the United States Congress passed
the TVPA in 1991 and President George H.W. Bush signed the law in 1992
in order to implement Torture Convention's obligations with respect to civil
redress.2
The TVPA provides that 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 extrajudicial 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.
Thus, the TVPA creates a federal cause of action specifically for torture
and summary execution committed anywhere in the world. Both the plaintiff and the defendant may be U.S. or foreign citizens, as long as the defendant acted under color of law of a foreign nation. The legislative history
makes clear that in passing the TVPA, Congress intended to codify the
Filartigaresult and extend the right of access to federal courts to U.S. citizens. 3 This history also stresses the importance of protecting human rights
around the world and of granting victims of torture and extrajudicial killing
4
access to U.S. courts.'
Since Filartiga,there have been dozens of civil suits brought under the
ATCA and the TVPA in the United States arising out of human rights abuses
around the world, including claims of genocide, torture, summary execution, disappearance, arbitrary detention, crimes against humanity, and war
crimes.' 5 The ATCA is also being increasingly invoked against corporate
defendants for complicity in human rights violations including forced labor,
extrajudicial killing, and environmental harm.'6 So far, the majority of the
cases against individual defendants has resulted in default judgments, because personal jurisdiction over the defendant was based on transient jurisdiction or the defendant simply fled the jurisdiction once suit was filed or
after filing unsuccessful motions to dismiss. As a result, enforcing the multimillion dollar judgments obtained in these cases has proven difficult. Thus,
the case against the Salvadoran generals marked one of the first instances in
which a defendant in a human rights case under either the ATCA or the
TVPA presented a vigorous defense (which involved testifying in their own
defense) and in which at least one of the defendants is believed to have
substantial assets.
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The Parties To The Action
The case was brought by three plaintiffs, all refugees from El Salvador,
against two former Ministers of Defense of El Salvador for abuses during
the period 1979-1983. That period was marked by widespread atrocities
committed by members of the Salvadoran Military and Security Forces against
civilians, including clerics and churchworkers, health workers, teachers,
members of peasant and labor unions, the poor, and anyone alleged to have
leftist sympathies. A Truth Commission established by the United Nations
pursuant to the Salvadoran Peace Accords concluded that tens of thousands
of civilians were detained, tortured, murdered or disappeared during the worst
12 years of the civil war ending in 1992 and that 85% of the abuses were
attributable to members of the Military and Security Forces, as opposed to
unaffiliated death squads or the rebel forces.' 7 The plaintiffs in this action
were three of the civil war's victims who were fortunate enough to survive
when others perished.
Dr. Juan Romagoza
The lead plaintiff, Dr. Juan Romagoza, was working in an impromptu
health clinic in a church when a detachment of the Salvadoran Army and
Security Forces arrived in military vehicles. Because he had medical equipment and what appeared to be military boots, he was captured and taken to a
local army base. From there, he was transferred by helicopter to the National
Guard Headquarters in San Salvador where he was brutally tortured for three
weeks. As part of his torture, he was hung by his fingertips with wire and
shot through his left arm to signify that he was a "leftist," which destroyed
his hands and has made it impossible for him to continue to practice surgery.
He was also beaten, raped, starved, electro-shocked, and kept in hideous
conditions.
At one point during his detention, Dr. Romagoza was visited by an individual whom his torturers called mi colonel or "the big boss" and to whom
they acted deferentially. Dr. Romagoza could see under his blindfold that
the individual was wearing a formal uniform and well-polished boots. This
new arrival interrogated Dr. Romagoza about two of his uncles who were in
the military, asking him if they were passing weapons to the guerillas. When
Dr. Romagoza was eventually released into his uncle's custody, he saw defendant General Vides Casanova talking to his other uncle and recognized
the defendant's voice as belonging to the person who had been in the torture
room with him.
After his release, which as it turned out was brokered by his uncles in the
military, Dr. Romagoza escaped from El Salvador and eventually made his
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way across the Mexico/United States border. He later received political
asylum and now runs a free health clinic for the Latino population of Washington D.C.
Prof. Carlos Mauricio
Prof. Carlos Mauricio was teaching agronomy at the University of El
Salvador when he was lured out of his classroom and taken to the National
Police headquarters in San Salvador. Prof. Mauricio was detained in a secret
cell and tortured for approximately nine days, which included being beaten
repeatedly with fists, feet and metal bars; being hung for hours with his arms
behind his back; and being forced to witness the torture of others. As a
result of these beatings, two ribs were broken and his vision was permanently damaged in one eye.
Following this phase of his detention, Prof. Mauricio was inexplicably
transferred to a public cell where he remained for another nine days or so. It
was at this time that he realized that he would be released. While still detained in this public cell, Prof. Mauricio was visited by a representative of
the International Committee of the Red Cross (ICRC), a non-governmental
organization based in Geneva that implements the four 1949 Geneva Conventions and their two Protocols by, among other things, monitoring the treatment of prisoners or war. Prof. Mauricio informed the ICRC representative
that detainees were being tortured in clandestine cells, but he was informed
that the government of El Salvador was not allowing the ICRC to visit any
other areas of the building. Prof. Mauricio was finally released due to the
intervention of his then father-in-law, who was in the military. Prof. Mauricio
believes he was targeted for capture because he had traveled out of the country for schooling (he received a Masters Degree in Mexico) and worked with
campesinos (poor farmers) to help them increase their yields.
Prof. Mauricio fled from El Salvador soon after his release and made his
way to San Francisco where he got a job washing dishes. He eventually
learned English, was granted legal permanent resident status, and was
awarded a Masters in Genetic Engineering and his teaching credentials. He
now teaches science at a San Francisco Bay Area school that serves disadvantaged youth.
Neris Gonzalez
Neris Gonzalez was a catechist who taught literacy and simple mathematics to campesinos in the province of San Vicente. She was captured
one day in the market by members of the National Guard and taken to a local
garrison. There, she was tortured for three weeks, raped repeatedly, and was
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forced to watch others be tortured, mutilated and killed. At the time, she
was eight months pregnant. The guardsmen wounded her belly repeatedly,
at one point balancing a bed frame on her and riding the frame like a seesaw.
Because of the trauma she suffered, Ms. Gonzalez has no firm memory
of how she escaped captivity. She has been able to piece together that she
was taken in the back of a truck full of dead bodies to a local dump. At some
point, her baby was born, and local villagers heard the sound of her baby
crying and rescued her. Her baby died two months later of injuries he had
received in utero, but Ms. Gonzalez's only memories of this are what her
mother and daughter have told her.
Ms. Gonzalez eventually moved to the United States at the suggestion of
a therapist in El Salvador who told her that her flashbacks, anxiety attacks,
and the gaps in her memory were due to the torture she suffered and that he
was ill equipped to treat her. He told her about the Marjorie Kovler Center
in Chicago, which specializes in working with victims of torture. Ms.
Gonzalez eventually moved to Chicago to get the help she needed and obtained political asylum. She is now the executive director of an environmental education program there.
The Defendants
The defendants in this action are two former Ministers of Defense of El
Salvador. One defendant--General Jose Guillermo Garcia-was Minister
of Defense from 1979-1983. At that time, the other defendant-General
Carlos Eugenio Vides Casanova-was the Director-General of the National
Guard, one of three internal Security Forces under the jurisdiction of the
Ministry of Defense along with the Army and other Military Forces. When
General Garcia retired in 1983, General Vides Casanova was appointed
Minister of Defense. The defendants both arrived in the United States in
1989, and General Garcia later obtained political asylum based on allegations that he was being threatened by leftist forces within El Salvador. They
both lived comfortably in South Florida until their presence there was discovered in 1999 by the Lawyers Committee for Human Rights, which had
been representing the families of the four churchwomen in their quest for
justice and for information about the deaths of the churchwomen.
The Legal Theory: The Doctrine of Command Responsibility
The case was brought under the international legal doctrine of command
responsibility. This doctrine has existed as long as there have been military
institutions, but it was utilized most prominently during the Nuremberg and
Tokyo proceedings following World War U to convict top Nazi and Japanese
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defendants. 8 Since then, the doctrine has been employed in several ATCA
and TVPA cases' 9 and also serves as the basis for prosecutions before the
two ad hoc war crimes tribunals for Yugoslavia and Rwanda that have been
established by the United Nations Security Council. Long a doctrine of customary international law, command responsibility has in modem times been
codified in Protocol I to the four 1949 Geneva Conventions,' the statutes of
the two war crimes tribunals, 2' and the statute of the International Criminal
Court. 22 The United States military, for its part, has long endorsed the doc23
trine that commanders are responsible for the actions of their subordinates.
According to this longstanding doctrine, a military commander can be
held legally responsible--either criminally or civilly-for unlawful acts committed by his subordinates if the commander knew-or should have known
given the circumstances-that his subordinates were committing abuses and
he did not take the necessary and reasonable measures to prevent these abuses
or to punish the perpetrators. Thus, the doctrine involves in essence three
main elements:
1. The direct perpetrators of the unlawful acts were subordinates of the
defendant commander;
2. The defendant commander knew (actual knowledge) or should have
known (constructive knowledge) that his troops were committing,
had committed, or were about to commit abuses; and
3. The defendant commander failed to take steps to prevent or punish
such abuses.
Thus, the plaintiffs (with the exception of Dr. Romagoza who identified
General Vides Casanova in the torture chamber) did not argue that the generals personally participated in their detention and torture. Rather, they argued that because the defendants were on notice that their troops were committing abuses but nonetheless failed to properly supervise them or punish
perpetrators, the commanders should be held liable for the abuses plaintiffs
suffered.
Early on in the life of both cases against the generals, it was clear that a
key challenge would be to establish the legal standard governing when an
individual could be considered the legal subordinate of a defendant commander within the purview of the first prong of the doctrine. With respect to
this burden, the two ad hoc criminal tribunals have required the prosecution
to demonstrate that the defendant commander exercised "effective control"
over the individual perpetrators. 4 In other words, a showing of de jure command over an individual within a military hierarchy is a relevant but not
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sufficient showing to satisfy the first prong of the doctrine.25 Rather, the two
war crimes tribunals are requiring a showing of defacto control in addition
to any de jure command.16 This burden requires the presentation of evidence that, among other things, the commander was actually able to issue
orders to his subordinates and to ensure that those orders were carried out.
Although this doctrine was developed in the context of the Yugoslav conflict, in which individuals operating without a grant of de jure command
from any formal state were exercising defacto control over individuals committing abuses, the tribunals have applied the effective control requirement
within the context of de jure commanders as well."
Accordingly, Judge Hurley ruled in the Fordcase that prong one of the
doctrine would be satisfied with proof that defendants exercised effective
control over the individuals committing the abuses. The Ford plaintiffs appealed this ruling, urging that the Fordjury instructions improperly placed
the burden on them to prove that the generals had defacto control over their
subordinates in the National Guard, in addition to de jure command, which
was uncontested. On April 30, 2002, the Eleventh Circuit Court of Appeals
upheld the district court's jury instructions, requiring the plaintiff to prove
that the defendant commander exercised effective control over his troops.2
The Eleventh Circuit opinion in effect gave the Romagoza plaintiffs their
marching orders. Accordingly, the jury instructions in the Romagoza case
set forth the elements of the doctrine as follows:
1. The plaintiff was tortured by a member of the military, the security
forces, or by someone acting in concert with the military or security
forces;
2. A superior-subordinate relationship existed between the defendant/
military commander and the person(s) who tortured the plaintiff;
3. The defendant/military commander knew, or should have known,
owing to the circumstances of the time, that his subordinates had committed, were committing, or were about to commit torture and/or extrajudicial killing; and
4. The defendant/military commander failed to take all necessary and
reasonable measures to prevent torture and/or extrajudicial killing, or
failed to punish subordinates after they had committed torture and/or
extrajudicial killing.
The instructions then went on to explain that "effective control" means
that the defendant/military commander had the actual ability to prevent the
torture or to punish the persons accused of committing the torture. In other
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words, to establish effective control, a plaintiff must prove, by a preponderance of the evidence, that the defendant/military commander had the actual
ability to control the person(s) accused of torturing the plaintiff.2 9
The instructions also clarified that it was not necessary to prove that the
defendant commander knew that the plaintiffs themselves would be targeted
for abuse; rather, it was sufficient that the defendants knew that subordinates
were committing human rights abuses like those suffered by the plaintiffs.
The Defense And Plaintiffs' Rebuttal
Given the centrality of the concept of "effective control" to the application of the doctrine of command responsibility, defendants not surprisingly
argued in both cases that the civil war in their country had created a state of
chaos that rendered it impossible for them to know what their subordinates
were doing or to be able to intervene to prevent abuses or punish perpetrators. This defense proved successful in the Ford case, as statements by
jurors to the press indicate that they determined that the plaintiffs had not
met their burden of proving that the generals had "effective control" over
the subordinates who committed the churchwomen's murders.
The defense verdict in Ford presented a cautionary forerunner to the
Romagoza plaintiffs. Accordingly, the Romagoza plaintiffs presented an array of expert testimony and documents identifying widespread patterns of
torture by members of the Salvadoran military and Security Forces during
the period in question. This evidence included reports of torture published
in the press and presented to the Generals at the time by non-governmental
organizations and U.S. officials, among others. Plaintiffs also demonstrated
through expert and percipient testimony that the civilian abuses being committed by the subordinates of the generals were systematic rather than random. In this regard, plaintiffs showed that particular demographic segments
were specifically targeted, especially doctors, teachers and church workers
who were working with the poor. The plaintiffs themselves were able to
testify that even if they were detained by plainclothed persons, each of them
was eventually taken to an official government detention center where they
were tortured by individuals in uniform.
Plaintiffs also demonstrated that the top military echelons were able to
control their troops when they wanted, for example, to implement the banking reform or fight the civil war. In this regard, Professor Terry Karl of
Stanford University gave expert testimony describing the violence in El Salvador during the relevant period as a spigot, which could be turned on and
off by the military as needed. A retired Argentine colonel-Col. Jose Luis
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Garcia, whose extensive knowledge of El Salvador stemmed from expert
testimony he provided in the trial of the murderers of the six Jesuits who
were killed in El Salvador in 1989-discussed the structure and operation of
a military chain of command in general and of Latin American militaries in
particular. He also presented expert testimony that the Salvadoran military's
communications and transportation infrastructure were sufficiently developed to enable the defendants to exercise control over their troops. Finally,
plaintiffs presented significant evidence of the generals' failure to denounce
abuses, let alone investigate or prosecute perpetrators, despite their ability
to do so. In this regard, plaintiffs' military expert provided examples of what
the defendants could have done to curb abuses by their subordinates had
they had the will to do so.
The verdict demonstrated that plaintiffs' evidence persuaded the jury,
which found incredible defendants' denials that their subordinates were committing abuses or claims that in the chaos of the civil war, there was nothing
more they could have done. The jury foreperson told journalists afterward
that "The generals were in charge of the National Guard and the country... It
was a military dictatorship. They had the ability to do whatever they chose
to do or not do."
Case Impact
The verdict against Generals Garcia and Vides has energized human rights
activists in El Salvador and provided hope to the Salvadoran refugee community and others. The verdict was headline news in El Salvador, and was
widely reported in the United States. Over 150 lawyers, students, and others
encouraged by the verdict attended a recent conference about the case at the
Human Rights Institute of the University of Central America in San Salvador. Activists gave their overwhelming support to efforts in the United States
to fight against the impunity of military and death squad leaders for abuses
during that country's civil war. While many expressed a desire for such cases
to be brought in El Salvador, commentators noted that this is currently impossible in light of the amnesty law. At the same time, some human rights
lawyers stated the case provided new impetus to seek to limit or rescind the
broad amnesty law adopted by the Salvadoran Congress in 1993 in the wake
of publication of the United Nation's Truth Commission Report.
At the same time, editorials in some Salvadoran papers criticized the
case as "reopening old wounds" and as a threat to stability achieved following the Peace Accords in El Salvador. However, many commentators dismissed these arguments as disproved by the measured debate accompanying
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the verdicts, and pointed to the importance of the public dialogue about the
issues of justice and accountability brought about by the case.
In the U.S., throngs of supporters have greeted plaintiffs at events in
their communities to celebrate the victory, and plaintiffs have received messages from well-wishers around the world praising their courage and thanking them for providing hope that.some measure of justice could be achieved.
The Importance Of Civil Redress
Cases such as Romagoza v. Garciathat provide survivors of human rights
abuses with civil redress represent a valuable tool in the enforcement of
international human rights norms and the rehabilitation of victims.30 To be
sure, in the context of human rights violations, any award of money damages as a result of a civil suit will be incommensurate to the harm the individual suffered and continues to suffer. The impact of torture on the life of a
victim can never be quantified, nor can money repair the lasting damage. 3
However, money damages can compensate the victim for pain, emotional
distress, bodily and psychological harm, and lost wages and earning potential. Further, such damages will assist survivors in obtaining the therapy
they need for as complete a rehabilitation as possible.
Even absent an enforceable judgment, however, civil suits are valuable.
Most importantly, civil suits have the potential to revive the dignity of survivors and satisfy a demand for justice. Tort law generally is concerned with
the definition and defense of social norms by expressing a consensus about
the way in which people should relate to and interact with each other and by
communicating that consensus to the general populace. A judgment ordering the payment of money damages necessarily includes an assessment that
a legal right of the plaintiff was violated, and each individual expression of
liability "adds its voice to others in the international community collectively
condemning [such acts] as an illegitimate means of promoting individual
and sovereign ends."32 In comparison to a criminal suit, a civil suit may
better preserve a collective memory and "permit a more thorough airing of
victims' stories.., along with an expression of judicial solicitude."33 In this
regard, although criminal prosecutions are an important component of the
fight against impunity, a criminal proceeding may be focused on the culpa34
bility of the perpetrator at the expense of the harm suffered by the victim.
Further, even where criminal prosecutions occur, civil cases involve the survivor directly in the legal process: the survivor chooses to initiate the proceeding and then plays a central role throughout. Attorneys and advocates
working with victims of human rights abuses have observed that this active
participation within the legal system can be empowering and can restore a
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sense of justice among survivors of grave human rights abuses for whom the
courts of their countries provided no recourse.
This is not to say that civil redress in domestic courts is necessarily superior to other forms of redress or other accountability mechanisms available
to survivors of human rights violations. Rather, civil redress in domestic
courts constitutes an important component within a comprehensive and worldwide regime for the enforcement of human rights. This regime operates at
all levels-international, regional, and municipal-and includes a variety
of accountability mechanisms, including judicial (civil and criminal), administrative, geo-political, retributive, restorative, and symbolic ones. Each
of these various mechanisms has certain strengths and weaknesses, but if
international norms are to have any meaning, all should be available to survivors in search of redress. In the case of the plaintiffs in the cases against
the generals, civil redress, regrettably, was their only option, given the amnesty law passed in El Salvador in 1993 and the fact that the U.S. law
criminalizing torture wherever committed was just passed in 1994 and is
considered by the Department of Justice to have prospective effect only.
NOTES
I Romagoza v. Garcia, No. 99-8364 CIV-HURLEY
2. Mr. Klaus has recently indicated that he will defend Juan Lopez Grijalba, a former
Honduran military chief accused of the murder and torture of Honduran civilians
in the 1980s. That case is also being brought by the Center for Justice & Accountability (CJA), which filed and served the complaint on July 15, 2002. A highly
interesting twist is that the INS arrested Grijalba and is seeking to deport him on
grounds that he lied on his visa applications. The CJA has supplied crucial evidence of Grijalba's past crimes.
3. Ford v. Garcia, Case No. 99-08359-CV-DTKH.
4. The two cases were filed concurrently in May 1999 and proceeded in parallel
until 2000 when the churchwomen's case went to trial.
5. Judiciary Act, ch. 20, s 9, 1 Stat. 73, 76-77 (1789), 78-79. See Charles Warren,
New Light on the History of the FederalJudiciaryAct of 1789, 37 HARV. L. REV.
49, 73 (1923) (noting that the Judiciary Act was drafted to grant jurisdiction to
the federal courts over both common law crimes and violations of the law of
nations). The First Judiciary Act also granted federal jurisdiction over common
law crimes, which included violations of the law of nations. The federal courts
soon lost jurisdiction over common law crimes on the theory that only Congress
and the state courts could pronounce on new crimes. U.S. v. Hudson, 11 U.S. (7
Cranch) 32 (1812) (holding that no federal court was "vested with jurisdiction
over any particular act done by an individual in supposed violation of the peace
and dignity of the sovereign power. The legislative authority of the Union must
first make an act a crime, affix a punishment to it, and declare the court that shall
have jurisdiction of the offense.").
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6. The ATCA, 28 U.S.C. §1350, provides that federal courts may entertain "any
civil suit by an alien for a tort only, committed in violation of the law of nations
or a treaty of the United States." The plaintiff(s) must be an alien and the
defendant(s) may be a U.S. or a foreign citizen or corporation. By most accounts,
the ATCA was enacted to respond to certain incidents involving foreign actors
that made clear that under their original grants of jurisdiction, the federal courts
were impotent in the face of violations of the law of nations involving non-nationals.
7. William S. Dodge, The HistoricalOrigins of the Alien Tort ClaimsAct of 1789: A
Response to the 'Originalists,' 19 HASTINGS INT'L L & COMP. L. REV. 221, 234
(1996).
8. Filartiga v. Pefia-Irala, 630 F.2d 876, 878 (2d. Cir. 1980).
9. Torture Victim Protection Act, Pub. L. No. 102-256, 106 Stat. 73 (1992), codified at 28 U.S.C. § 1350 note.
10. G.A. Res. 39/46, U.N. GAOR, 39th Sess., Annex 39, Supp. No. 51, at 197, U.N.
Doc. A/39/51 (1984) (entered into force June 26, 1987 and for the United States,
Nov. 20, 1994).
11. See generally Rachael E. Schwartz, "And Tomorrow" The Torture Victim Protection Act, 11 ARIZ. J. INT'L & COMP. L. 271, 284 (1994) (noting that the TVPA
"serves to fulfill internationally agreed-upon obligations with respect to torture
and extrajudicial killing."). Similarly, Congress amended the federal criminal code
at 18 U.S.C. §2340 to provide that: "Whoever outside the United States commits
or attempts to commit torture shall be fined under this title or imprisoned not
more than 20 years, or both, and if death results to any person from conduct
prohibited by this subsection, shall be punished by death or imprisoned for any
term of years or for life." 18 U.S.C. § 2340a (1994). In contrast to some other
states, the United States has yet to initiate any prosecutions for torture despite the
legal ability, and indeed obligation, to do so.
12. In particular, the House Report noted that the Torture Convention is "enforcement-oriented" in that it "obligates state parties to adopt measures to ensure that
torturers are held legally accountable for their acts" and that "[o]ne such obligation is to provide means of civil redress to victims of torture." House Report, No.
367, 102d Cong., 1st Sess., pt. 1, at 3 (1991) ("House Rep."). See also Senate
Rep. No. 249, 102d Cong., 1st Sess. (1992) at 3 ("Senate Rep.").
13. House Rep. at 4 ("At the same time, claims based on torture or summary executions do not exhaust the list of actions that may appropriately be covered by section 1350 [the ATCA]. That statute should remain intact to permit suits based on
other norms that already exist or may ripen in the future into rules of customary
international law."). Because the four churchwomen and their families are all
U.S. citizens, that case proceeded under the TVPA only.
14. Senate Rep. at 3 (predicting that "torturers and death squads will no longer have
a safe haven in the United States.").
15. See generally Beth Stephens & Michael Ratner, INTERNATIONAL
LITIGATION IN U.S. COURTS (1996) (surveying cases).
HUMAN RIGHTS
16. See, e.g., Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88 (2d Cir. 2000); Doe v.
Unocal Corp., 110 F. Supp. 2d 1294 (C.D. Cal. 2000); Iwanowa v. Ford, 67 F.
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183
Supp. 2d 424 (D.N.J. 1999); Beanal v. Freeport McMoran, 969 F.Supp. 362 (E.D.
La. 1997).
17. See From Madness to Hope: the 12- Year war in El Salvador: Report of the Commission on the Truth for El Salvador, U.N. Doc. S/25500 (1993).
18. See Judgment of October 1, 1946, International Military Tribunal Judgment and
Sentence, reprinted in 41 Am. J. Int'l L. 172, 186 (1947) (Nuremberg Judgment).
See also Yamashita v. Styer, 327 U.S. 1 (1946) (upholding conviction by military
tribunal of Japanese general under theories of command responsibility).
19. See e.g., In re Estate of Ferdinand Marcos Human Rights Litigation, 25 F.3d 1467
(9th Cir. 1994); Kadic v. Karadzic, 70 F3d 232 (2d Cir. 1995); Forti v. SuarezMason, 672 F.Supp. 1531 (N.D.Ca. 1987); Paul v. Avril, 901 F.Supp. 330 (S.D.Fla.
1994).
20. Article 86(2), Protocol Additional to the Geneva Conventions of 12 August 1949
and Relating to the Protection of Victims of International Armed Conflicts, Dec.
12, 1977, 1125 U.N.T.S. 3 (Protocol I), reprinted at 16 I.L.M. at 1429 ("The fact
that a breach of the Conventions or of this Protocol was committed by a subordinate does not absolve his superiors from penal or disciplinary responsibility, as
the case may be if they knew, or had information which would have enabled them
to conclude in the circumstances at the time, that he was committing or was going
to commit such a breach and if they did not take all feasible measures within their
power to prevent or repress the breach").
21. Article 7(3), Statute of the International Tribunal for the Prosecution of Persons
Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991, annexed to Report of
the Secretary-General Pursuant to Paragraph 2 of S.C. Res. 808, U.N. SCOR,
3175th mtg., U.N. Doc. S/25704 (1993) ("The fact that the [crime] was committed by a subordinate does not relieve his superior of criminal responsibility if he
knew or had reason to know that the subordinate was about to commit such acts
or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof."); Article 6(3),
International Criminal Tribunal for the Prosecution of Persons Responsible for
Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States,
S.C. Res. 955, U.N. SCOR, 3453d mtg., U.N. Doc. S/Res/955 (1994), reprinted
in 33 I.L.M. 1598 (1994).
22. Article 28, Rome Statute of the International Criminal Court, U.N. Diplomatic
Conference of Plenipotentiaries on the Establishment of an International Criminal Court, U.N. Doc. A/CONF.183/9 (1998).
23. See, e.g., Department of the Army Field Manual ("AFM"), The Law of Land
Warfare, 27-10, Art. 501, Jul. 18, 1956 ("[iun some cases, military commanders
may be responsible for war crimes committed by subordinate members of the
armed forces, or other persons subject to their control."); AFM, 22-100, Army
Leadership, Be, Know, Do, Art. 1-60, Aug. 31, 1999 ("Command is a specific
and legal position unique to the military. It's where the buck stops."); id., Art. 161 ("Command is a sacred trust. The legal and moral responsibilities of commanders exceed those of any other leader of similar position or authority.").
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guild practitioner
24. These two cases were unique in their consideration of international legal precedent. See Ford v. Garcia, 289 F.3d 1283 (11 th Cir. 2002) (noting "The recently
constituted international tribunals of Rwanda and the former Yugoslavia have
applied the doctrine of command responsibility since In re Yamashita, and therefore their cases provide insight into how the doctrine should be applied in TVPA
cases.").
25. The Yugoslav tribunal has also ruled that a showing of de jure command gives
rise to a legal presumption that the defendant commander exercised effective
control. The Prosecutor v. Delalic et al., Case No. IT-96-21-T, Judgement of the
Int'l Crim. Trib. Former Yugo., Tr. Chamber (November 16, 1988). In the
Romagoza case, plaintiffs argued that the jury should be instructed on the existence and operation of this presumption; otherwise it would be meaningless. However, Judge Hurley made an initial determination that defendants had presented
sufficient evidence to rebut the presumption and thus declined to instruct the jury
on the presumption.
26. See, e.g., The Prosecutor v. Delalic et al., Case No. IT-96-21-T, Judgement of the
Int'l Crim. Trib. Former Yugo., Tr. Chamber (November 16, 1988), at 378 (ruling that "in order for the principle of superior responsibility to be applicable, it is
necessary that the superior have effective control over the persons committing
the underlying violations of international humanitarian law, in the sense of having material ability to prevent and punish the commission of these offenses.").
27. See Prosecutor v. Blaskic, Case No. IT-95-14-T, Judgement of the Int'l Crim.
Trib. Former Yugo., Tr. Chamber (March 3, 2000) (requiring evidence of effective control in case against de jure commander).
28. Ford v. Garcia, 289 F.3d 1283 (11 th Cir. 2002). Plaintiffs in Ford have petitioned
for certiorari.
29. In contrast to the Fordcase, the term and definition of "effective control" was not
contained in the formulation of the doctrinal elements themselves. Rather, it appeared in a subsidiary explanatory paragraph, which likely served to de-emphasize the concept for the jury.
30. See Study Concerning the Right to Restitution, Compensation and Rehabilitation
for Victims of Gross Violations of Human Rights and Fundamental Freedoms,
U.N. ESCOR, 45th Sess., Provisional Agenda Item 4, at 56, U.N. Doc. E/CN.4/
Sub.2/1993/8 (1993) ("Reparation for human rights violations has the purpose of
relieving the suffering of and affording justice to victims by removing or redressing to the extent possible the consequences of the wrongful acts and by preventing and deterring violations.").
31. See, e.g., Mushikiwabo v. Barayagwiza, No. 94 Civ. 3627, 1996 U.S. Dist. LEXIS
4409, at *6 (S.D.N.Y. Apr. 8, 1996) (noting that the judge had seen "no other case
in which monetary damages were so inadequate to compensate the plaintiffs for
the injuries caused by a defendant" and arguing that "one can not place a dollar
value on the lives lost as the result of the defendant's actions and the suffering
inflicted on the innocent victims of his cruel campaign. Unfortunately, however,
a monetary judgment is all the Court can award these plaintiffs.").
32. Harold Hongju Koh, Civil Remedies for Uncivil Wrongs: Combating Terrorism
Through TransnationalPublicLaw Litigation,22 TEx. INT'L L.J. 169, 185 (1987).
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In this way, a civil judgment "awarding compensatory and punitive damages to a
victim of terrorism serves the twin objectives of traditional tort law, compensation and deterrence. At the same time, the judgment promotes the objectives of
public international law by furthering the development of an international rule of
law" condemning the international crime. Id.
33. Jose E. Alvarez, Rush to Closure: Lessons of the Tadic Judgment, 96 MICH. L.
REV. 2031, 2102 (1998) (noting the psychological benefits of civil suits to victims).
34. Given that the effectiveness of criminal remedies depends upon state discretion,
civil cases can be commenced when the government with criminal jurisdiction
over the offender is unwilling to prosecute for evidentiary or political reasons, as
is the case in the United States.
00000
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