Reparations

Using civil lawsuits to obtain reparation for survivors of human rights abuses
and to challenge the impunity of their abusers
by San dra Colliver & M oira Feeney
edited by Liam M ahoney

A Tactical No teb o ok p u blished by

the Ne w Tactics Project
o f the Center f or Victims o f Torture
Published by
The Center f or Victims o f Torture
Ne w Tactics in Human Rig h ts Project
717 East River Road
M in neap olis, M N 55455 USA
w w w.cvt.org, w w w.ne w tactics.org

Notebook Series Editor

Liam M ah o ny

Design and copyediting

Susan Everson

© 2005 Center for Victims of Torture

This p u blicatio n may be freely repro d uced in prin t an d in electro nic f orm as lo n g as
t his co pyrig h t n o tice ap pears o n all co pies.

Disclaimer
The vie ws expressed in this report do not necessarily re flect those o f the Ne w Tactics in Human Rights Project.
The project does not advocate specific tactics or policies.
 4 A u t h or bio gra p hies

5
Letter from the Ne w Tactics Project Director

6 In tro d uctio n

6 Strategic context o f the tactic

8 W hat la wsuits against f oreign-born human

rights abusers can accomplish

12 Ho w the tactic may be used in countries outside the U.S.

14 Ho w the tactic w orks in the U.S.

17 Challenges in bringing these la wsuits

18 Lesso ns le arn e d

20 Reso urces

The Center f or Victims o f Torture

Ne w Tactics in Human Rig h ts Project
717 East River Road
M in neap olis, M N 55455 USA
w w w.cvt.org, w w w.ne w tactics.org
 Sandra Coliver
Sandra Coliver is the Executive Director of
The Center for Justice the Center for Justice and Accountability,
and Accountability based in San Francisco. She has worked in
CJA works to deter torture and other se- the human rights field since holding a Ford
vere human rights abuses around the world Foundation fellowship with Amnesty Inter-
by helping survivors hold their persecutors national USA in 1979.
accountable. CJA is the leading U.S. center
representing survivors in civil suits against Sandra was one of the founding members of
persecutors living in or visiting the United AIUSA’s Legal Support Network and a member of AIUSA’s Board of Di-
States. Several of the cases discussed in this rectors from 1992 to 1996; a founding board member of Human Rights
paper were litigated or initiated by CJA. Advocates; and the Founding Chair of the International Human Rights
Committee of the Bar Association of San Francisco (1984–1990, 2002–
CJA has pioneered an integrated approach present). She clerked for the Ninth Circuit Court of Appeals and was in
to the quest for justice that combines legal private practice for several years in San Francisco, specializing in criminal,
representation with referrals for medical and constitutional, and international law.
psychosocial services, and with outreach to
schools, community organizations, and the In 1990 she moved to London to direct the law program of Article 19, the
general public. CJA currently represents International Center Against Censorship, and opened a U.S. office in
more than 40 survivors from countries in- 1993. She moved to Sarajevo in 1996 to work for the U.N. High Commis-
cluding Bosnia, Chile, China, East Timor, sioner for Human Rights, the Organization for Security and Cooperation
El Salvador, Haiti, Honduras, Somalia, and in Europe, and the International Crisis Group, an advocacy think tank
one Asian and one Middle-Eastern country chaired by former Senator George Mitchell. From 1999 to 2001 she served
(the specific countries must remain confi- as Senior Rule of Law Advisor to IFES, an NGO dedicated to promoting
dential until the cases are filed). fair elections and accountable governments.

CJA was established in San Francisco in Sandra has taught human rights, humanitarian law, international law, and
January 1998. Its creation was inspired by women’s rights at Boalt Hall, Golden Gate Law School, Santa Clara Law
legal and psychological work with victims School, and Washington College of Law, and has written extensively on
of torture and other grave human rights these issues. She has managed or participated in human rights and rule of
abuses. The need for justice consistently law programs in Russia, the Balkans, Central and Eastern Europe,
emerges as an integral component of a Mongolia, Morocco, Southeast Asia, Southern Africa, and Rwanda. She
victim’s healing process, and becomes par- received her law degree from Boalt in 1981.
ticularly acute when the victim’s abuser en-
joys impunity in the same country where Moira Feeney
the victim has sought refuge. CJA was es- Moira Feeney is a Staff Attorney at CJA. She
tablished to respond to the need for justice is currently the lead attorney in CJA’s lawsuit
by combining victim outreach and rehabili- against former Haitian death squad leader
tation with legal advocacy and representa- Toto Constant, and also works on CJA’s case
tion. against Colonel Dorélien, a member of the
High Command with responsibility for the
Raboteau massacre, and a winner of $3.2
million in the Florida Sate Lottery in 1996.
Contact Information She has been involved in human rights work related to Haiti since 1998,
The Center for Justice &Accountability and worked under the supervision of Haiti’s leading human rights attor-
870 Market Street neys to prepare criminal and civil litigation against perpetrators of politi-
Suite 684 cally motivated rape. Previously, she coordinated election observation
San Francisco, CA 94102 delegations to Haiti for Global Exchange, an international human rights
phone · 415.544.0444 organization. Moira serves as the primary media contact for all CJA’s
fax · 415.544.0456 current cases. She has also led and organized educational travel, focused
website · www.cja.org on issues of global justice, to Haiti, Cuba, Nicaragua, and Chiapas, Mexico.
email · center4justice@cja.org She has a law degree from UC Hastings College of the Law, and a B. A. in
international relations from Brown University. She is fluent in Haitian
Creole, French, and Spanish.
March 2004

Dear Friend,

Welcome to the New Tactics in Human Rights Tactical Notebook Series! In each notebook a human rights
practitioner describes an innovative tactic used successfully in advancing human rights. The authors are part of
the broad and diverse human rights movement, including non-government and government perspectives,
educators, law enforcement personnel, truth and reconciliation processes, and women’s rights and mental health
advocates. They have both adapted and pioneered tactics that have contributed to human rights in their home
countries. In addition, they have utilized tactics that, when adapted, can be applied in other countries and
situations to address a variety of issues.

Each notebook contains detailed information on how the author and his or her organization achieved what they
did. We want to inspire other human rights practitioners to think tactically—and to broaden the realm of tactics
considered to effectively advance human rights.

In this notebook we learn how civil laws can be used to hold torturers and other human rights abusers
accountable, and to gain reparations for survivors. The Center for Justice and Accountability (CJA) represents
survivors using the Alien Tort Claims Act (ATCA, dating back to 1789) and the Torture Victim Protection Act
of 1991, which gives both U.S. citizens and non-citizens alike the right to sue human rights abusers who live in
or visit the U.S. CJA has effectively used these acts to help end the possibility of abusers using the U.S. as a safe
haven, to assist survivors in gaining reparations, and to break the silence that has enabled abusers to live in
impunity. This notebook demonstrates how countries with laws similar to the ATCA can put them to work to
end such impunity. Activists around the world can consider ways to use their own civil laws, and to target
abusers who travel to the U.S. by building collaborations among diverse groups that include activists in the U.S
and abroad, refugees, lawyers, and people skilled in using the media.

The entire series of Tactical Notebooks is available online at www.newtactics.org. Additional notebooks will
continue to be added over time. On our web site you will also find other tools, including a searchable database of
tactics, a discussion forum for human rights practitioners, and information about our workshops and symposium.
To subscribe to the New Tactics newsletter, please send an e-mail to newtactics@cvt.org.

The New Tactics in Human Rights Project is an international initiative led by a diverse group of organizations
and practitioners from around the world. The project is coordinated by the Center for Victims of Torture (CVT)
and grew out of our experiences as a creator of new tactics and as a treatment center that also advocates for the
protection of human rights from a unique position—one of healing and reclaiming civic leadership.

We hope that you will find these notebooks informational and thought-provoking.

Sincerely,

Kate Kelsch
Introduction
W h e n sp e a kin g a b o u t his involve m e n t as o n e o f t h e
plaintiffs in Romagoza, Gonzalez, & M auricio v. Garcia
& Vides Casanova , a case against t w o high ranking Sal-
vadoran generals for torture committed in 1979–1983,
Carlos M auricio said, “I am participating in this case in
order to help send a message to military leaders around
t he w orld t hat, if t hey commit atrocities, t hey w ill n o t
be able to visit or live in the U.S. with impunity. They will
al w ays h ave t o f e ar t h a t so m e o n e so m e d ay m ay rec-
ognize them and bring them to justice. I am involved in
this case to try to deter people, especially military people
in El Salvador and else w here, from committing atroci-
ties in t h e f u t ure. Le t m e t ell yo u, m a ny milit ary o f fic-
ers in Salva d or dre a m o f livin g in t h e U nit e d St a t es Carlos Mauricio, plaintiff in CJA’s case against the two Salvadoran
generals, demands justice outside of the Fresno Federal Court House.
a f t er t h ey re tire. M y case a n d o t h er cases are se n din g
a p o w erf ul m essa g e t o t h e m. Resolu tio ns p asse d by
the U.N. General Assembly and reports by human rights all are subject to deportation investigations. In one case,
org a niz a tio ns are e f f ective in p u blicizin g w h a t h a p- t h e la w yers w h o w ork e d o n t h e civil case are h elpin g
pened, but they do not send a strong message to mili- o t h ers in t h e d e f e n d a n t’s h o m e co u n try t o prosecu t e
t ary le a d ers, w h o t hin k t h ey are a b ove t h e la w. Th ey him follo wing his deportation from the U.S.
m ay b e a b ove t h e la w in t h eir h o m e co u n tries, b u t
t h ese la wsuits t ell t h e m t h a t t h ey are n o t a b ove t h e These lawsuits have contributed to the worldwide move-
la w in this country.” ment against impunity by:
1) helping ensure that the U.S. does not remain a safe
Since 1980, 18 n o n-U.S.-b orn h u m a n rig h ts a b users haven f or such perpetrators,
w h o moved t o or w ere visitin g t he United States have 2) h oldin g in divid u al p erp e tra t ors acco u n t a ble f or
been successfully sued by their victims in civil proceed- human rights abuses,
ings. The victims have been able to use t w o U.S. la ws— 3) providin g victims w it h so m e se nse o f o f ficial ac-
o n e e n act e d in 1789 as p art o f t h e very first Ju diciary kno wledgment and reparation,
Act, t h e o t h er e n act e d in 1991—t h a t e n a ble victims 4) establishing an historical record of w hat happened,
o f cert ain e gre gio us h u m a n rig h ts viola tio ns, w h er- 5) contributing to the development of international
ever co m mit t e d, t o brin g civil la wsuits in U.S. f e d eral human rights la w, and
co urt a g ainst t h ose resp o nsible f or t h e viola tio ns, so 6) b uildin g a co nstit u e ncy in t h e U.S. t h a t su p p orts
lo n g as t h e d e f e n d a n ts are p hysically prese n t in t h e t he ap plicatio n o f in ternatio nal la w in such cases,
U nit e d St a t es. w hile cre a tin g a n a w are n ess a b o u t h u m a n rig h ts
violations in all regions of the w orld.
O f t he 18 de f en dan ts, t w o w ere curren t hig h-rankin g
government officials: the Bosnian Serb leader Radovan These cases, w hen vie w ed with other anti-impunity ef-
Karadzic, and Lui Qi, M ayor of Beijing. Nine were former f orts around the w orld, are also:
high-ranking civilian or military officials w ho continued 7) helpin g t o create a climate o f deterrence, an d
t o exercise co nsid era ble in flu e nce. Several o f t h e d e- 8) ca t alyzin g e f f orts in m a ny co u n tries t o prosecu t e
fendants w ere particularly sadistic, hands-on torturers. their o w n human rights abusers.

Because these suits are civil in nature, the perpetrators These eight objectives will be discussed at greater length
cannot be held in jail. In some cases, ho w ever, evidence later in the notebook.
uncovered during the civil la wsuit has been used by U.S.
g overn m e n t a u t h orities t o arrest a n d d e p ort t h e p er- Strategic context of the tactic
petrator; some plaintiffs have been able to recover sub- HUMAN RIGHTS ABUSERS IN THE U.S.
st a n tial asse ts fro m t h e d e f e n d a n ts. Th e Ce n t er f or Justice a n d Acco u n t a bility (CJA) esti-
m a t es t h a t several h u n dre d h u m a n rig h ts a b users—
A n d in all o f t h e cases t h e p erp e tra t ors h ave b e e n ex- p e o ple w it h su bst a n tial resp o nsibility f or h ein o us
p ose d as h u ma n rig h ts viola t ors, a n d su bject e d t o t h e atrocities—no w live in the U.S., and that several dozen
sh a m e a n d ostracism t h eir actio ns d eserve. Th eir lives hig h-level p erp e tra t ors visit every ye ar. This estim a t e
h ave b ee n disru p t e d; most fle d t h e U.S. a f t er t h e la w- is su p p orted by t he U.S. Immigratio n an d Cust oms En-
suits w ere file d a g ainst t h e m. O f t h e f o ur re m ainin g, forcement Bureau. 1

6
These perpetrators come from more than 70 countries, process: a n e e d f or justice, a n d a n a nxie ty re g ardin g
including Bosnia, Cambodia, Chile, El Salvador, Ethiopia, perpetrators w ho live in the U.S.
G u a t e m ala, H aiti, H o n d uras, In dia, Lib eria, Pa kist a n,
Peru, Rw a n d a, Sierra Le o n e, So malia, Sri La n k a, Syria, THE LEGAL BASIS OF THE CIVIL LAWSUITS
a n d Vie t n a m. O nly a f e w d o z e n h ave b e e n d e p ort e d, The Alien Tort Claims Act (ATCA), passed by Congress in
nearly all of them since 2000 (approximately 90 people 1789, allo ws “ aliens”—non-U.S. citizens—to bring civil
w ere previo usly d e p ort e d or extra dit e d f or N a zi-era la wsuits f or “ t orts...co mmit t e d in viola tio n o f t h e la w
crimes). M ost are lo w-level abusers; nearly half are Hai- o f n a tio ns or a tre a ty o f t h e U nit e d Sa t es. ”
tian.2
Th e ATC A w as larg ely u n use d u n til 1980, w h e n a f e d-
The majority of perpetrators are identified during the eral Court o f A ppeals issued its landmark judgment in
asylu m process, w h e n t h ey d eclare t h a t t h eir f e ar o f t h e case o f Filartig a v. Pe n a-Irala . Th e case involve d a
p ersecu tio n is b ase d o n t h eir involve m e n t w it h a u nit Paraguayan citizen, Dolly Filartiga, w ho moved to the
t h a t p articip a t e d in h u m a n rig h ts a trocities. D espit e U.S. after her brother w as tortured and killed by Peña,
the fact that Congress adopted a la w in 1994 that gives a Paraguayan police chief. W hen Dolly discovered that
U.S. courts jurisdiction to prosecute such crimes,3 no hu- Peña w as visitin g t he U.S., she an d her f at her bro u g h t
m a n rig h ts a b user h as b e e n crimin ally prosecu t e d in an action against him, under the ATCA, for torture and
t h e U.S. f or t ort ure. wrongful death. The Court of A ppeals ruled that state-
sponsored torture violated the la w of nations and that
THE PRESENCE OF HUMAN RIGHTS ABUSERS t h e t ort urer w as h osti h u ma nis , a n e n e my o f all m a n-
CAUSES THEIR VICTIMS EXTREME ANXIETY kind.
It is im p ort a n t t o u n d erst a n d t h a t survivors o f a troci-
ties often live in the same communities as their perpe- W hile this was considered a ground-breaking judgment,
tra t ors. In N e w York City, f or exa m ple, t h e H aitia n it did n o t le a d t o a flo o d o f cases. Th e co urt se t a hig h
co m m u nity is h o m e t o a m a n a t t h e ce n t er o f a CJA st a n d ard: t h e viola tio n h a d t o b e o f a rule t h a t co m-
case. Em m a n u el “ To t o ” Co nst a n t w as t h e o u tsp o k e n manded the “ general assent of civilized nations.” Sub-
head of FRAPH (the Armed Revolutionary Front for the se q u e n t co urts ela b ora t e d f urt h er re q uire m e n ts. Th e
A dva nce m e n t o f H aitia n Pe o ple, a n d also t h e Cre ole violation must be of a norm of international la w that is
w ord for “ to hit ” or “ to beat ”), Haiti’s most brutal para- “specific, universally condemned, and obligatory.” Cases
military organization. The Haitian people hold Constant m ay b e p ursu e d a g ainst in divid u als o nly if t h ey h ave
responsible for a widespread and systematic campaign been personally served w hile physically present within
o f ra p e, t ort ure, a n d m urd er fro m 1992 t o 1994. In t h e t errit ory o f t h e U.S. Cases are b arre d by t h e st a t-
1996, t h e H aitia n co m m u nity in N e w York discovere d u t e o f limit a tio ns u nless file d w it hin 10 ye ars o f t h e
t h a t Co nst a n t w as o p e nly w orkin g in t h e re al est a t e violation, unless there are extenuating circumstances—
b usin ess in Q u ee ns a n d Bro o klyn. A n article in t h e A t- i.e., a threat of retaliation during that period, or a lack
la n tic M o n t hly o f Ju n e 2001 d escrib es t h e tra u m a tic o f access t o necessary evidence.
exp erie nce o f o n e H aitia n f a mily w h e n Co nst a n t a p-
peared at their door asking if he could tour their house.4 Concerning most claims, the defendant must be a gov-
Th e n u m ero us victims o f FRAPH w h o w ere f orce d t o ern m e n t o f ficial or a g e n t, or h ave w ork e d t o g e t h er
t a k e re f u g e in t h e U.S. m ust live w it h t h e d aily f e ar o f w it h g overn m e n t a g e n ts. A d e a t h sq u a d le a d er, f or
meetin g t he man resp o nsible f or t heir t ort ure. inst a nce, w o uld b e lia ble o nly if h e receive d su p p ort
from government forces. In the absence of any form of
A n o t h er o f CJA’s clie n ts, Oscar Reyes, e nco u n t ere d
former Honduran military intelligence chief Lt. Col. Juan 1
ICE Fact Sheet, http://www.ice.gov/graphics/news/factsheets/
López Grijalba at a reception for Honduran dignitaries. nosafehaven.htm. See also Amnesty International, USA, quoting an im-
Unable to speak out at the time, he and his wife had to migration service source: USA: A Safe Haven for Torturers (April 10,
w ait ten years for justice. In 2002, the Reyeses, through 2002). Available at http://www.amnestyusa.org/stoptorture/
CJA , filed a la wsuit against Grijalba f or t heir u nla w f ul safehaven.pdf.
arrest a n d bru t al t ort ure in 1983. Base d o n t h eir t esti- 2
For information on the number of Haitians placed in deportation
m o ny a n d t h a t o f o t h er CJA w it n esses, Grijalb a w as proceedings as human rights abusers, see Alfonso Chardy, “2 More
d e prive d o f his inco m e a n d d e p ort e d t o H o n d uras, Haitian Torture Suspects are Arrested in S. Florida Pending Deporta-
w here he faces a criminal investigation. tion,” Miami Herald, Dec. 20, 2003, available at http://www.miami.com/
mld/miamiherald/news/local/7535658.htm.

CJA’s founder, a licensed clinical social w orker w ho has 3

18 U.S.C. 2340A.
counseled torture survivors, has found that t w o things 4
David Grann, “Giving ‘The Devil’ His Due,” Atlantic Monthly, June
co nsist e n tly e m erg e as in t e gral p arts o f t h e h e alin g 2001.

Reparations: Using civil lawsuits against human rights abusers 7

 st a t e act io n , in d ivid u als have ruled that claims o f genocide, w ar crimes, crimes
The most important thing is may be held liable only a g ainst h u m a nity, slavery a n d slavery-lik e practices,
to speak out and not let yourself be f or g e n ocid e, crimes t ort ure, disa p p eara nce, summary execu tio n, a n d pro-
dominated by silence. But it’s not just speak- a g ainst h u m a nity, lo n g e d arbitrary d e t e n tio n are actio n a ble u n d er t h e
ing and opening wounds. We have to know when w ar crim es, a n d ATCA.
it’s a good time to share our experiences, and how. We slavery a n d sla-
need to find a proper listening space among people who are very-lik e prac- In addition to f oreign-born human rights abusers, the
willing to do something in response to what they hear. We tices. ATC A h as b e e n invo k e d a g ainst corp ora tio ns t h a t d o
need to find spaces that can generate mechanisms or channels business in the United States, and against U.S. govern-
for justice, and not just put these people in jail but prevent this W h i l e s o m e ment officials and agents. W hile our tactic concerns only
kind of activity from happening again, and isolate torturers f o r m o f st a t e f oreig n-b orn h u ma n rig h ts a b users, t h ese o t h er cases
who come to the United States in search of a paradise. action is usually are w ort hy o f n o tice, a n d provid e im p ort a n t co n t ext.
necessary, some To d a t e, so m e 40 cases h ave b e e n file d a g ainst corp o-
J u a n R o m a g o z a, o n th e s i g n i f i c a n c e o f Romagoza, of ficials have im- ra t e d e f e n d a n ts. In o n e case, t h e d e f e n d a n t, U n ocal
Gonzalez, & Mauricio v. Garcia & Vides Casanova, munity: if a defen- Corporation, agreed to settle for an undisclosed sum to
a case against two high ranking Salvadoran gen- d a n t h as h e a d-o f- b e p aid t o a f u n d t o b e n e fit t h e co m m u nities o f Bur-
erals for torture committed in 1979–1983. st a t e , d i p l o m a t ic, o r mese villagers who had been victimized by Unocal’s prac-
other immunity, a case will tices. Th e se t tle m e n t h as b e e n w id ely in t erpre t e d t o
be dismissed. sig nify U n ocal’s acce p t a nce t h a t it lik ely w o uld h ave
lost t h e case. Tw e n ty-t hre e o f t h e o t h er cases h ave
Some judges and academics raised concerns about the been dismissed f or a variety o f reasons. 8 Five have sur-
ATCA’s application to modern-day human rights viola- vived motions to dismiss, and eight others are a w aiting
tions. In 1991, to confirm the act’s agreement with the d ecisio ns o n such m o tio ns. A ll cases a g ainst U.S. o f fi-
Filartiga lin e o f cases, a n d t o ext e n d its jurisdictio n t o cials—including Henry Kissinger—have so far been dis-
U.S. citizen as w ell as alien plaintiffs, the U.S. Congress missed, though a fe w decisions are still on appeal. O ne
adopted the Torture Victim Protection Act (TVPA). The case w as successf ully bro u g h t a g ainst a priva t e co m-
TVPA provides that “ an individual w ho under actual or pany that held, without legal authority, a contract with
apparent authority, or color o f la w, o f any f oreign na- the U.S. government to operate a detention facility for
tion ” subjects another to torture or extrajudicial killing alie ns in t h e U.S. It a p p e ars lik ely t h a t ATC A w ill b e
is lia ble f or d a m a g es in a civil actio n. Th e le gisla tive used successfully against U.S. government contractors,
hist ory t h a t acco m p a nies t h e TVPA m a k es cle ar t h a t as w ell as state an d local g overnmen t o f ficials.
t h e act w as in t e n d e d t o co n firm t h e ca uses o f actio n
for official torture and extrajudicial killing, and did not What lawsuits against foreign-born
su p erce d e t h e ATCA , w hich co n tin u e d t o h ave “ o t h er human rights abusers can accomplish
important uses. ” 1. THEY CAN ENSURE THAT THE U.S.
DOES NOT REMAIN A SAFE HAVEN FOR
Th e TVPA is n arro w er t h a n t h e ATCA in t h a t it a p plies HUMAN RIGHTS ABUSERS
o nly t o t ort ure a n d extraju dicial killin g, a n d m ay b e The ATCA cases have resulted in the removal or depar-
used only against individuals w ho act under “ actual or t ure o f n u m ero us h u m a n rig h ts a b users w h o w ere ei-
apparent authority…of any foreign nation.” The TVPA t h er hig h-level or directly involve d in co m mit tin g
clearly cannot be applied against individuals acting un- atrocities. O f the 18 individuals successfully sued using
der the authority of, or in concert with, the U.S. govern- the ATCA, one w as deported based on information un-
ment. covered by the plaintiffs, one w as extradited, one died,
a n d t e n le f t t h e co u n try a n d h ave n o t, as f ar as w e
In 2004, the U.S. Supreme Court af firmed the Filartiga kno w, returned—including five w ho had moved here to
lin e o f cases in Sosa v. Alvarez-M achain , 5 h oldin g t h a t settle. 9 O nly five of the 18 remain in the U.S. 10 O f those,
ATCA claims must “rest on a norm of international char- o ne has been denat uralized an d is in deten tio n pen d-
acter accepted by the civilized w orld and defined with ing the outcome of deportation proceedings, and one is
the specificity comparable to the features of the 18th- the subject of a deportation investigation based largely
ce n t ury p ara dig ms w e h ave reco g niz e d. ” 6 Th e Co urt on evidence uncovered during the course of ATCA cases.
d e nie d t h e p articular arbitrary arrest claim a dva nce d
by Dr. A lvare z in t h e case, b u t did so in a m a n n er t h a t Th ese 18 cases h ave cle arly d e t erre d n u m ero us a b us-
does not appear to undermine the Filartiga line of cases. ers fro m co min g t o t h e U.S. Follo w in g t h e ATC A case
The Court cited, with approval, cases w hich permitted a g ainst Para g u aya n p olice chie f Pe n a-Irala, f or ex-
ATCA claims for violations of international norms that a m ple, t h e U.S. co nsula t e in Para g u ay re p ort e d a d e-
are “sp ecific, u niversal a n d o blig a t ory. ” 7 Th ese cases crease in U.S. visa requests by Paraguayan officials and

8
milit ary o f ficers. 11 Th e Sh a h o f Ira n w as t h e last m ajor ecu t e. Give n t h e curre n t a d ministra tio n’s w illin g n ess
human rights abuser to openly seek medical treatment t o viola t e in t ern a tio n al la w in t h e prosecu tio n o f its
in the U.S. Although Baby Doc Duvalier of Haiti came to “ w ar o n t error, ” virt u ally all h u m a n rig h ts org a niz a-
Miami in 1986 after he w as forced into exile, he quickly tio ns are reluct a n t t o a dvoca t e a t t his tim e f or la ws
le f t f or Fra nce. Salva d ora ns w a tchin g f or t h e e n try o f t h a t w o uld e n h a nce t h e p o w ers o f t h e U.S. g overn-
Salva d ora n milit ary o f ficers w h o use d t o travel re g u- ment to prosecute foreign-born human rights abusers.
larly to Miami and southern California report that these
officers are no longer traveling here. A nd immigration 2. THEY CAN HOLD HUMAN RIGHTS
agents have confirmed that certain human rights abus- ABUSERS ACCOUNTABLE
ers fro m Ce n tral A m erica st o p p e d co min g t o t h e U.S. Th o u g h t h eir p u nish m e n t d o es n o t fit t h e severity o f
a f t er mid-2002. Is it a coincid e nce t h a t a m ajor ATC A the crimes, ATCA cases demand accountability, a com-
vict ory a g ainst t w o Salva d ora n f ormer d e f e nse minis- p o n e n t o f b o t h justice a n d d e t erre nce. Th e cases ex-
t ers w as o b t ain e d in July 2002? p ose w h a t p e r p e t r a t o rs h a v e d o n e . T h e y ca use
e m b arrassm e n t. Th ey ca n limit t h e care ers o f f oreig n
O f course, ridding the U.S. of human rights abusers ar- officials w hose advancement depends on the ability to
g uably o nly exp orts t he pro blem, u nless t he receivin g travel to the U.S. without being greeted with revealing
co u n try is w illin g an d able t o criminally prosecu te t he n e ws st ories. Th ese cases h ave co nveye d t h e stro n g
abuser. M ost countries are not willing or able, and abus- message that people w ho commit atrocities will not be
ers sim ply re t urn t o t h eir h o m e co u n tries w h ere t h ey able to visit or live in the U.S. with impunity. This can be
co n tin u e t o e njoy immu nity. O n t h e o t h er h a n d, most a substantial penalty, especially for persons from coun-
live less w ell t h a n t h ey did in t h e U.S. a n d m ost h ave tries with close relations with the U.S. or w hose citizens
lost st a t ure, m o n ey, a n d in flu e nce as a result o f t h e often travel or retire to the U.S., such as Indonesia and
la wsuits. several countries in Latin A merica.

Th e fig h t a g ainst im p u nity w o uld, in m ost cases, b e H ect or Gra m ajo, a G u a t e m ala n ex-g e n eral, fle d t h e
b e t t er serve d if t h e h u m a n rig h ts a b users co uld b e U.S. after being served with an ATCA complaint in 1991.
crimin ally prosecu t e d in t h e U.S. H o w ever, m ost U.S. H e h a d b e e n pre p arin g t o ru n f or his co u n try’s presi-
prosecu t ors lack t h e p olitical w ill, a n d in m ost cases, d e ncy, a n d h a d co m e t o t h e U.S. t o o b t ain a d e gre e
the legal authority and/or adequate evidence, to pros- fro m H arvard U niversity’s K e n n e dy
School of Government. A fter be-
5
124 S.Ct. 2739 (2004). in g serve d w it h t h e la wsuit For me personally, the
o n his gra d u a tio n d ay, h e verdict provided a strong sense of
6
Alvarez, at 2761–62.
immediately returned to healing and closure. For almost 25 years,
7
Id. at 2766. Guatemala with his U.S. I had carried a bag of heavy rocks with me
8
These include that the claim—for instance, arbitrary detention for less visa revo k e d, a n d his everywhere I went. The day that I testified, I left
than a day—is not actionable under the ATCA; that the case should more p arty did n o t ch o ose that bag of rocks with the U.S. justice system.
properly be brought elsewhere, e.g., in the country where the violation him as its presid e n tial
was committed; that the plaintiffs have failed to exhaust remedies in the candidate. His inability
country where the violation was committed; that the claims are barred by Francisco Acosta, one of the witnesses in the case against
the statute of limitations; and that the court’s assertion of jurisdiction to
t o t r a v e l t o t h e U .S. Alvaro Saravia, a former captain in the Salvadoran
hear the case could interfere with foreign affairs. w i t h o u t e m b a r r a ss- air force and a current U.S. resident, held liable
m e n t n o w a li a b ili t y, for his role in organizing the assassination of
9
Norberto Pena-Irala (Paraguayan police chief ) was deported; Suarez
Mason (Argentinian general) was extradited; Ferdinand Marcos (Philip-
Gramajo found his politi- Archbishop Oscar Romero. Source: The
pines former President) died. Five defendants visiting the U.S. were cal ambitions th w arted. Tiding, October 1, 2005.
successfully sued, and each left shortly after the lawsuit was filed: Karadzic
(Bosnian Serb leader), Lumintang (Indonesian general), Gramajo (Gua- Fo u n d resp o nsible f or acts o f
temalan former Defense Minister), Kavlin (Bolivian corporate vice-presi- torture during the “Red Terror ” in
dent); Assasie-Gyimah (Ghanaian security officer). Five defendants who
Et hio pia, K elb essa N e g e w o lost several jo bs,
were resident in the U.S. (in the U.S. more than six months or who
manifested clear intent to stay) left following the filing of the lawsuit: and w as eventually denaturalized and arrested for de-
Imee Marcos-Manotoc (daughter of Philippines President Marcos), p ort a tio n b eca use o f t h e ju d g m e n t in t h e A b e b e-Jira
Barayagwiza (Rwandan radio station owner), Panjaitan (Indonesian gen- case.
eral), Avril (Haitian former President), and Vukovic (Bosnian Serb war
criminal).
N o n-m o n e t ary co nse q u e nces h ave b e e n im p ose d in
10
Garcia and Vides Casanova (Salvadoran generals and former Defense other cases as well, including an unreported case in 1987
Ministers), Fernandez-Larios (Chilean major and death squad mem- w hich caused a Chilean torturer to avoid competing in
ber), and Saravia (Salvadoran death squad henchman).
the Pan-A merican games in Indiana f or fear o f having
11
Information supplied by Prof. William Aceves. his h orse seiz e d as p art o f a n ATC A case.

Reparations: Using civil lawsuits against human rights abusers 9

La wyers also continue to pursue the collection of assets penses incurred by CJA and by the la w firms that both
in past judgments, and are increasingly going after de- w ork with us on a volunteer basis and advance some of
f e n d a n ts w h o h ave asse ts t h a t m ay b e re ach a ble by t he costs.
U.S. co urts. Success in collectin g t h ese asse ts w ill f ur-
t h er incre ase t h e cases’ d e t erre n t im p act. In t h e case 3. THEY CAN PROVIDE OFFICIAL
o f a perpetrat or w it h n o assets, a p ortio n o f his or her ACKNOWLEDGMENT & REPARATION FOR VICTIMS
salary or pension may be su bject to attachmen t. AND SURVIVORS OF HUMAN RIGHTS ABUSES
These cases frequently help survivors experience a sense
The collection of ATCA monetary judgments, ho w ever, o f justice, a se nse o f m e a nin g in t h eir survival, a n d a
h as b e e n dif ficult. It is b elieve d t h a t m o n ey h as b e e n tre m e n d o us sa tisf actio n in k n o w in g t h a t t h ey h ave
collect e d in o nly t w o cases: a p proxim a t ely $1 millio n bro u g h t dig nity t o t h e m e m ories o f t h ose w h o w ere
fro m t h e est a t e o f Philip pin e Presid e n t Ferdin a n d killed or tortured.
M arcos, 12 a n d less t h a n $1,000 fro m G e n eral Su are z-
M ason of Argentina. Plain tif fs, t h era pists, co m m u nity le a d ers, a n d h u m a n
rig h ts activists h ave b e e n elo q u e n t in d escribin g t h e
Plaintiffs and attorneys in cases resulting in default judg- impact of the cases on their o w n healing processes and
m e n ts h ave a t t e m p t e d t o e n f orce so m e o f t h ese p ast o n t h eir e ff orts t o re p air t h eir co m m u nity’s se nse o f
pending judgments. Dolly Filartiga and her family, f or loss a n d injustice. In t h e w ords o f Ju a n Ro m a g o z a, a
example, are still w orking to enforce the judgment re- Sa lva d o ra n t o r t u re su rvivo r: “ W h e n I t est i f ie d , a
ceived in their groundbreaking case, and recently filed strength came over me. I felt like I w as in the pro w of a
a n e w e n f orce m e n t case in N e w York f e d eral co urt. A b o a t a n d t h a t t h ere w ere m a ny, m a ny p e o ple ro w in g
t e a m o f la w yers is also w orkin g t o e n f orce t h e ju d g- behind. I felt that if I looked back, I’d w eep because I’d
ment in Paraguay. see them again: w ounded, tortured, raped, naked, torn,
bleeding. So, I didn’t look back, but I felt their support,
Efforts have also been made in other pending cases, to their strength, their energy. Being involved in this case,
date without success. Given the risks involved, it is diffi- co n fro n tin g t h e g e n erals w it h t h ese t errible f acts—
cult to find organizations or la w firms w ho w ould seek that’s the best possible therapy a torture survivor could
asse ts o n a co n tin g e ncy or pro b o n o b asis. N o n-pro fit have.”
org a niz a tio ns h ave n o t h a d t h e reso urces t o success-
f ully e n f orce ju d g m e n ts a g ainst t h ose w it h asse ts, es- Plaintif fs are generally realistic about the limits o f the
pecially w hen the assets are hidden outside the U.S. la wsuits, yet grateful for the opportunity to proactively
p ursu e justice. Zit a Ca b ello, a Chile a n w o m a n w h ose
In 2003, CJA e m b ark e d o n a ca m p aig n t o track a n d bro t h er w as kille d a n d a plain tif f in a CJA case w it h a
collect assets. Enlisting la wyers in El Salvador to search p ositive jury verdict, said “ This la wsuit ca n n o t re d uce
for hidden assets, for instance, CJA has so far obtained t h e p ain I f eel over t h e d ea t h o f my bro t h er, W inst o n.
$270,000 from a Salvadoran general, and is w orking to Nothing will ever diminish that pain. But w orking with
acquire more. In another case, CJA’s pro bono la w firm CJA h as give n m e a nin g t o my p ain. Th a t is a tre m e n-
h as e n g a g e d a n in t ern a tio n al acco u n tin g firm t o fin d dous gift.”
assets be f ore t he complain t is even filed. W e are close
to obtaining nearly $1 million from a Haitian perpetra- The w ebsite w w w.nosafehaven.org contains additional
t or w h o w o n $3.2 millio n in t h e Florid a st a t e lo t t ery. t estim o ny by plain tif fs a n d a brie f su b mit t e d t o t h e
CJA is w orking to build cases against some of the finan- Supreme Court about the impact of ATCA cases on sur-
ciers of death squad activity in El Salvador w ho live in or vivors.
re g ularly visit t h e U.S., alo n g w it h t h ose w h o h ave fi-
nanced more recent violence in other countries. If and 4. THEY CAN SET THE
w hen CJA is able to gain possession o f defendants’ as- HISTORICAL RECORD STRAIGHT
se ts, t h e m ajority o f t h e f u n ds w ill g o directly t o t h e For t h e plain tif fs involve d, a n d f or t h eir co m m u nities
plain tif fs; t h e re m ain d er w ill cover o u t-o f-p ock e t ex- as w ell, t h ese cases are a n o p p ort u nity t o correct t h e
hist orical record. Th ese suits are n o t o nly a b o u t w h a t
12
A $150 million settlement was approved in the Marcos case, but the h a p p e n e d, b u t a b o u t w h o w as resp o nsible. As such,
Philippine courts blocked the transfer of Marcos assets that were also they serve as miniature tru th commissions.
being claimed by the Philippine government, and the settlement has
never been funded. All Holocaust assets cases, of course, included ATCA
claims, and billions of dollars in settlements have been achieved. Several In ma ny cases t h e co u n try in w hich t h e a trocities t o o k
of the lawyers involved in these cases, including Professor Burt Neuborne, place is still in a p erio d o f tra nsitio n. Perh a ps t h e ju di-
have credited the foundation of ATCA jurisprudence as a crucial element ciary is u n a ble or u n w illin g t o p ursu e litig a tio n o f h u-
in their efforts to obtain justice for victims of the Holocaust. m a n rig h ts a b uses, or t h ere h as b e e n n o o p p ort u nity

10
 tional la w in its decisions, this expanding body of inter-
national jurisprudence is likely to be influential in many
o t h er are as.

ATC A cases are n o w a re g ular p art o f in t ern a tio n al

human rights curricula at la w schools, are taught in in-
t ern a tio n al rela tio ns co urses, a n d are re g ularly a d-
dressed at judicial education seminars on international
la w. Th ey h ave d e m o nstra t e d t h e releva nce o f le arn-
in g n o t o nly ab o u t in ternatio nal la w b u t ab o u t a h ost
o f su bsidiary issu es crucial t o t h e d ecisio ns o f h u m a n
rights cases, including the act of state and political ques-
tion doctrines, immunities, forum non conveniens, ex-
haustion of domestic remedies, equitable tolling of the
CJA Litigation Director Matt Eisenbrandt and Pro Bono counsel Nico statutes of limitations, standing to sue, and theories of
Van Alestyn of Heller Ehrman stand with members of the Salvadoran
community outside the Fresno federal courthouse. liability (command responsibility, aiding and abetting,
conspiracy, vicarious liability, direct liability).
for a truth commission. In the case of Haiti, for example,
the commission w as largely under-funded and unable 6. THEY CAN BUILD A HUMAN RIGHTS
to give all victims an opportunity to come forw ard, es- CONSTITUENCY IN THE U.S.
pecially those already forced into exile. Participating in ATCA cases against in divid ual perpetrat ors, o n behalf
an ATCA case is for many plaintiffs their only chance to o f o f ten very sympathetic plaintif fs, put a human face
p u t o n t h e p u blic record a n acco u n t o f w h a t t h ey su f- on human rights violations, and have attracted consid-
f ere d. It is also, f or m a ny d e f e n d a n ts, t h e o nly d ocu- era ble m e dia covera g e t h a t itself hig hlig h ts t h e n e e d
mentation o f their role in the atrocities. f or t h e ATC A . Th ese cases, alo n g w it h survivor t esti-
m o ny, co m p ellin gly illustra t e t h a t t h e ATC A provid es
5. THEY CAN CONTRIBUTE TO THE survivors o f h u m a n rig h ts viola tio ns w it h n o t o nly a n
DEVELOPMENT OF HUMAN RIGHTS LAW im p ort a n t m e a ns b u t, in d e e d, t h e o nly m e a ns f or re-
Th ese la wsuits h ave est a blish e d im p ort a n t le g al pre- dress in the United States. As U.S. citizens become com-
ce d e n ts w hich h ave exp a n d e d t h e kin ds o f h u m a n f ort a ble w it h t h e n o tio n t h a t t h e ATC A sh o uld b e
rights violations w hich may be subject to suit, and have applied against foreign human rights abusers, it should
m a d e it p ossible t o su e corp ora tio ns a n d co n tract ors be possible to convince courts and the public, at least in
w orking with the U.S. government. Cases against indi- t h e lo n g ru n, t h a t t h e sa m e st a n d ards sh o uld b e a p-
vid ual perpetrat ors have established, in h oldin gs t hat plied to U.S. agents w hen they aid and abet such viola-
w ill lik ely w it hst a n d p ost- A lvare z scru tiny, t h a t sev- tors, and to U.S. corporations doing business abroad in
eral viola tio ns co nstit u t e t orts in viola tio n o f t h e la w collaboration with repressive regimes.
of nations, including torture, summary execution, pro-
lo n g e d arbitrary d e t e n tio n, w ar crim es, disa p p e ar- 7. THEY CAN DETER HUMAN RIGHTS ABUSES
a n ce s, g e n o ci d e , cr i m e s a g a i n s t h u m a n i t y, a n d W h e n lin ke d w it h o t h er a n ti-imp u nity e f f orts aro u n d
slavery-lik e practices. D ecisio ns h ave also reco g niz e d t h e w orld, ATC A cases co n trib u t e t o a clim a t e o f d e-
that ATCA applies to commanders, co-conspirators, and t erre nce. Th e f act t h a t ATC A cases h ave ca use d so m e
aid ers a n d a b e t t ers, as w ell as t o t h e act u al p erp e tra- h u m a n rig h ts viola t ors t o le ave t h e U.S. a n d h ave dis-
t or; t o org a niz a tio ns a n d corp ora tio ns as w ell as t o su a d e d o t h ers fro m e n t erin g is o nly a m o d est f orm o f
in divid u als; a n d t o priva t e p erso ns as w ell as t o g ov- success. W hen vie w ed together with developments in
ern m e n t act ors. Th ese d ecisio ns m ay h ave a n im p act o t h er co u n tries, h o w ever, ATC A h as h elp e d t o su b-
beyond U.S. borders. st a n tially close o f f p arts o f t h e w orld h a bit u ally e n-
joye d by crimin als—f or re tire m e n t, h e alt h care, a n d
ATC A cases h ave also give n le gitim acy t o t h e use o f e d uca tio n o f t h eir childre n, a n d sim ply as a n esca p e
international human rights la w in U.S. courts generally. fro m crim e a n d p overty in t h eir h o m e co u n tries. Th e
They have demonstrated that customary international e f f ects o f t h e U.S. g overn m e n t’s rejectio n o f t h e In-
la w can, and in certain circumstances must, be directly t ern a tio n al Crimin al Co urt a n d o f o t h er in t ern a tio n al
a p plie d by U.S. co urts. It se e ms lik ely t h a t ATC A d eci- justice m ech a nisms w o uld cert ainly b e all t h e m ore
sio ns w ill b e use d by U.S. co urts in n o n-ATC A cases in- e gre gio us w ere t h e ATC A n o t availa ble t o a d dress
voking international human rights law in other contexts. so m e o f t h e m ost culp a ble h u m a n rig h ts a b users o n
With the Supreme Court increasingly, in cases like Atkins U.S. soil.
v. Virginia and La wrence v. Texas , considering interna-

Reparations: Using civil lawsuits against human rights abusers 11

8. THEY CAN CONTRIBUTE the call, and President Saca has had to defend his oppo-
TO TRANSITIONAL JUSTICE sitio n several times in t h e me dia.
ATC A cases ca n serve as a ca t alyst f or t h e process o f
transitional justice in the home country. They can bring Th e U.S. ju d g e’s fin din g t h a t Ro b ert o D’ A u b uisso n,
hope to activists w ho have labored without significant founder of the AREN A party (w hich remains in po w er),
success, a n d t o survivors w h o f e el solid arity w it h t h e w as t h e “ m ast ermin d ” o f t h e assassin a tio n h as cre-
plaintiffs. By demonstrating that impunity can be chal- ated further pressure to reopen the investigation. The
lenged, ATCA cases can stimulate discussion about the impact of these cases is due, in part, to the tremendous
crimes of the past, and build support for bringing per- resp ect t h a t U.S. f e d eral co urts co m m a n d in El Salva-
petrators to justice in their o w n domestic courts. d or, re p ort e dly eve n m ore, f or inst a nce, t h a n such in-
t ern a tio n al b o dies as t h e In t er-A merica n Co mmissio n
For inst a nce, a $54 millio n jury verdict in July 2002 on Human Rights. This respect is, apparently, also shared
a g ainst t w o f orm er M inist ers o f D e f e nse f u ele d d e- by the Catholic Church. The Archbishop of San Salvador
b a t e in El Salva d or re g ardin g re p e al o f t h e co u n try’s stated that the verdict should help establish Archbishop
a m n esty la w. Th e le g al t e a m’s success in securin g a n Romero’s martyrdom, proving w ho w as involved in the
initial $270,000, a n d t h e f act t h a t Salva d ora n la w yers assassination plot.
are no w helping the U.S. legal team track do w n further
assets, are causing consternation among Salvador’s top HOW THE TACTIC MAY BE USED
milit ary o f ficers. Th e case also h as e nco ura g e d m ore IN COUNTRIES OUTSIDE THE U.S.
t ort ure survivors t o co m e f or w ard w it h t h eir st ories. There are t w o main w ays in w hich the tactic is transfer-
O t h er ATC A cases h ave h a d similar e ff ects. 13 able. First, la wyers and activists may explore the viabil-
ity in their o w n countries of bringing similar la wsuits or
M aria Julia H ern a n d e z, direct or o f t h e H u m a n Rig h ts of developing the capacity to do so. The best prospects
O ffice o f t h e A rch diocese o f El Salva d or, cle arly st a t es for success exist within countries that are host to high-
the impact o f these civil cases on transitional justice in ranking or numerous foreign-born human rights abus-
t h e d e f e n d a n t’s h o m e co u n try: “ Th e process a n d t h e ers and have civil or criminal la ws that could be used for
verdict in t his case are acco m plish m e n ts in a lo n g a n d brin gin g cases a g ainst t h e p erp e tra t ors. For inst a nce,
most difficult fight against impunity. It is a case in w hich civil suits a g ainst h u m a n rig h ts a b users f or a trocities
all the victims of El Salvador emerged and w ere repre- committed abroad have been filed in the UK using En-
sented by these brothers and this sister. No w each of us glish t ort la w as t h e b asis f or t h e exercise o f civil juris-
has been touched in a w ay that inspires us to continue dictio n. A lt h o u g h n o n e o f t h e cases h as ye t b e e n
o n t his ro a d. ” Fr. José Tojeira, Presid e n t o f UC A , t h e successf ul, 14 o n e is curre n tly o n a p p e al a n d t h ere are
Jesuit university in San Salvador commented: “It is im- g o o d prosp ects t h a t t h e case a g ainst a n in divid u al
portant to pursue international alternatives as a means h a n ds-o n t ort urer w ill b e u p h eld. In Fra nce a n d Bel-
to pressure the Salvadoran justice system. These Salva- gium, a number of criminal complaints have led to civil
dorans brought their case in the U.S. not to hurt El Sal- reparation proceedings through adhesion processes.
vador, not for propaganda, but to help construct an El
Salva d or t h a t is b ase d o n t h e tru t h. To f ail t o p ursu e Seco n d, activists in t h e U.S. a n d aro u n d t h e w orld ca n
t h e co m m a n d ers e n d a n g ers t h e rule o f la w a n d t h e track h u ma n rig h ts a b users w h o live in or are likely t o
foundation of our society.” visit t h e U.S. a n d co m pile cases a g ainst t h e m, fin din g
plaintiffs (w ho can live anyw here), witnesses, and other
Th e case also e nco ura g e d w it n esses t o co m e f or w ard evid e nce. A p erso n w it h in f orm a tio n t h a t a n o n-U.S.-
with evidence against tw o Salvadoran perpetrators w ho b orn h u m a n rig h ts a b user lives in t h e U.S. or pla ns t o
h ave live d in t h e U.S. f or m ore t h a n 15 ye ars: A lvaro visit can contact the Center for Justice and Accountabil-
Saravia, an organizer of the 1980 assassination of Arch- ity. CJA will evaluate the la wsuit’s viability, along with
bishop Oscar Romero, and Col. Nicolas Carranza, head its likelihood of promoting human rights and benefit-
o f the Hacienda (Treasury) Police, w ho w as f orced out
of the military in 1985 because the high level of atroci- 13
The Abebe-Jira case had a large effect on public opinion in Ethiopia
ties f or w hich h e b ore resp o nsibility m a d e it u nco m- and on the commitment of the Ethiopian government to move forward
with trials of former officials of the Dergue. Plaintiff ’s counsel gave a
f ort a ble f or t h e U.S. t o co n tin u e se n din g milit ary aid. nationally televised address about the case in Addis Ababa in March
Th e verdict in t h e Ro m ero case, re n d ere d o n Se p t e m- 1994.
b er 3, 2004, h as alre a dy h a d a su bst a n tial im p act in El 14
They have been dismissed on grounds of immunity, insufficient nexus
Salva d or. For t h e first time, key re prese n t a tives o f t h e with the U.K. (a forum non conveniens test), failure to come within the
Catholic Church have called for revisions to the amnesty limitation period, and inability to serve the defendant. See Al-Adsani v.
la w and a reopening of the criminal investigation into UK, ECHR 35763/97 (Eur. Ct. Hum. Rts. 2001) (affirming dismissal
t h e assassin a tio n. O t h er ch urch es a n d le a d ers join e d of case on immunity grounds).

12
SAN FRANCISCO — San Francisco’s Center for Justice ing a broad population of survivors. If CJA has the avail-
and Accountability (CJA) announced Friday, Oct. 5 a $66 able time an d reso urces, an d determines t hat a case is
million federal court judgment against former Indonesian b o t h legally viable an d likely t o have broad bene ficial
Army Chief of Staff Johny Lumintang for his role in wide- im p act, it w ill t a k e t h e case, or w ill se e k a la w sch o ol
spread human rights abuses in East Timor. General clinic or experienced private la wyer to do so.
Lumintang received notice Friday of the ruling by United
States Magistrate Judge Alan Kay of the federal district court CJA o f f ers all services fre e o f ch arg e. W e e n t er in t o
in Washington, D.C. w rit t e n co n tracts w it h o ur clie n ts w h ere by w e u n d er-
t a k e t o re prese n t t h e m f ully a n d rig oro usly t hro u g h
Plaintiffs in the suit included six civilian victims of the vio- trial. In turn, if w e win a case and are able to secure the
lence that followed East Timor’s overwhelming vote for in- d e f e n d a n t’s asse ts, w e are e n title d t o b e reim b urse d
dependence from Indonesia in a 1999 U.N.-sponsored f or costs exp e n d e d o n t h e case. CJA h as w o n six cases
referendum. They filed suit against General Lumintang in since A pril 2002, with judgments totaling $254 million,
March 2000 under federal laws permitting victims of grave but has yet to collect any assets. Assets are discussed at
human rights violations abroad to sue perpetrators of such greater length above.
violations who enter the United States. Lumintang was served
with court papers during a visit to Washington, D.C. Thre e o t h er n o n-pro fit org a niz a tio ns are involve d in
In March of this year, Judge Kay heard three days of testi- using the Alien Tort Claims Act to bring la wsuits against
mony from the four surviving plaintiffs and several expert h u m a n rig h ts a b users: t h e Ce n t er f or Co nstit u tio n al
witnesses in a Washington, D.C. federal courtroom. Two of Rig h ts (CCR, at w w w.ccr-ny.org), Eart h Rig h ts In terna-
the victims were killed during the post-referendum violence. tio n al (ERI, a t w w w.eart hrig h ts.org), a n d t h e In t ern a-
The plaintiffs were represented by CJA, a San Francisco tional Labor Rights Fund (ILRF, at w w w.laborrights.org).
human rights law organization, New York’s Center for Con- CCR brought the Filartiga case, mentioned above, w hich
stitutional Rights (CCR), and the Washington, D.C. law w as t h e first ATC A h u m a n rig h ts case, a n d since t h e n
firm Patton Boggs, LLP. has been involved in nearly a dozen ATCA la wsuits.

The plaintiffs’ suit focused on Lumintang’s role in what the In 1996 CCR, t o g e t h er w it h ERI a n d ILRF, bro u g h t t h e
court called a “coordinated program of massive destruction” case a g ainst U n ocal, t h e first case ever file d in a U.S.
unleashed by the Indonesian military following the over- court against a corporation for abuses of international
whelming popular vote for independence from Indonesia in human rights (this case is described above). CCR is no w
a 1999 U.N.-sponsored referendum. pioneering cases against U.S. government officials and
contractors w ho w ork with the U.S. government. It re-
The court found that Lumintang, as Army Vice Chief of
cently filed a la wsuit against CACI and Titan, t w o large
Staff at the time, was responsible for scrutinizing army op-
companies that provided interrogators to w ork for the
erations, strategic planning, and military discipline. The court
Department of Defense in the A bu Ghraib prison. CCR
also noted that Lumintang issued a telegram to Army troops
co n tin u es t o w ork o n a f e w cases, st art e d m a ny ye ars
viewed as signaling the campaign of violence, and that he
ag o, against t o p f oreig n o f ficials w h o visited t he U.S.,
signed a training manual distributed to troops in East Timor
including Li Peng, the Chinese Premier, and an Indone-
that included instructions in abduction, killing, kidnapping,
sia n g e n eral. CCR is, h o w ever, n o lo n g er t a kin g n e w
and terror.
cases against individual foreign-born human rights abus-
“It has been established . . . that Lumintang has responsibil- ers.
ity for the actions against plaintiffs and a larger pattern of
gross human rights violations,” wrote Judge Kay. “[H]e— ERI has been involved in several la wsuits against corpo-
along with other high-ranking members of the Indonesian ra tio ns—U n ocal, Ch evro nTexaco, U nio n Carbid e a n d
military—planned, ordered, and instigated acts carried out Shell—w hose exploitation of natural resources has led
by subordinates to terrorize and displace the East Timorese to human rights abuses against populations living near
population...and to destroy East Timor” infrastructure fol- their installations. ILRF has focused on la wsuits against
lowing the vote for independence.” co r p o ra t i o ns—Exxo n M o b il, Coca-Co la , D e l M o n t e ,
Drummond, and Occidental Petroleum—involving at-
Excerpt from a press release, October 5, 2001: U.S. Court Holds tacks against labor unionists.
Indonesian General Liable for $66 Million for East Timor Abuses
CJA w orks closely w it h t h ese sist er org a niz a tio ns—
p art n erin g, f or inst a nce, in t h e d e f e nse o f t h e ATC A
fro m U.S. g overn m e n t a n d corp ora t e a t t acks a n d in
the development of beneficial case-la w by filing friend-
of-the-court briefs. None of these three organizations,

Reparations: Using civil lawsuits against human rights abusers 13

 First, I am participating in
order to seek justice, and to help put
an end to the culture of impunity that exists
ho w ever, is currently accepting cases against individual in El Salvador. Second, I want to be the voice for
foreign-born human rights abusers. W hen asked about people who were never able to speak out, for those
the possibility of a la wsuit against such an abuser, they who do not want, or are unable, to take their cases to
refer people to CJA. Similarly, w hen people contact us court. Not only those who have been tortured and never
about la wsuits in w hich the other groups might be in- want to talk about it, but also those who were killed during
t erest e d, w e m a k e re f errals t o t h ose org a niz a tio ns. torture. Third, I am looking for a psychological healing of
O n occasio n w e also re f er cases t o la w sch o ol h u m a n the wounds that torture left on me. I need an explanation
rights la w clinics. and that is why I need a day in court....Whatever the
outcome of my case, just bringing the lawsuit has been
HOW THE TACTIC WORKS IN THE U.S. a victory.
To w ork e ff ectively, t h e t actic re q uires f o ur esse n tial
steps: Carlos Mauricio, one of the lead plain-
1) tracking do w n perpetrators in the U.S., tiffs in CJA’s first El Salvador
2) finding appropriate plaintiffs and witnesses, case
3) bringing civil la wsuits against the perpetrators, and Generally,
4) w orkin g w it h t h e a u t h orities t o h ave t h e p erp e- w e d isse min a t e
trat ors arrested, prosecu ted, an d dep orted. in f orm a tio n t hro u g h solid arity gro u ps, t ort ure tre a t-
m e n t ce n t ers, re f u g e e co m m u nities, a n d asylu m la w-
TRACKING DOWN PERPETRATORS yers w ho have handled cases from the country at issue.
CJA finds perpetrators living in the U.S. by using a vari- W e ask these intermediaries if they kno w o f potential
ety of methods, the most important being outreach to plaintiffs, and ask them to request that any such plain-
re f u g e es, co m m u nity le a d ers, h u m a n rig h ts activists, tif fs co n t act us. W e n ever initia t e t his direct co n t act
and others w ho may have kno wledge of these people. ourselves because w e w ant people to be recommended
If w e obtain information that a perpetrator is living in to us by someone they trust. W e do not w ant to appear
a certain city, w e collaborate with private investigators to be soliciting clients, and w e do not w ant to appear to
and sometimes the immigration service to establish the be applying pressure on them to join the la wsuit. Survi-
person’s w hereabouts. vors must w ant to contact us, and must be interested in
learning about their options.
Refugees in the U.S. are often the best sources of infor-
m a tio n a b o u t p erp e tra t ors w h o h ave se t tle d h ere, W hen a potential plaintif f contacts us, w e discuss very
w hile activists in t h e h o m e co u n try are o f t e n k n o w l- care f ully w it h him or h er w h a t is involve d in b ein g a
ed geable ab o u t perpetrat ors w h o w ill be travelin g t o plain tif f, a n d w h a t ca n b e exp ect e d. W e pre f er t o d o
t h e U.S.—as p art, f or inst a nce, o f o f ficial d ele g a tio ns, this in person and with a trusted third person present,
for fundraising purposes, for medical care, or to attend a n d w e also provid e t h e in f orm a tio n in w ritin g in t h e
police or other training programs. p o t e n tial plain tif f’s n a tive la n g u a g e (se e t h e sa m ple
memo on page 19).
Human rights activists in a country w here atrocities have
been committed can initiate this tactic by tracking the It is important that the interested persons understand
travel pla ns o f, a n d collectin g evid e nce a g ainst, t o p several basic aspects of the case. W e discuss the follo w-
p erp e tra t ors. Th ey ca n co n t act CJA t o fin d o u t w hich ing points in detail with potential clients:
perpetrators are subject to legal action in the U.S. and 1) Th e d e f e n d a n t ca n n o t b e se n t t o jail m erely as a
w hich are pro t ect e d by diplo m a tic, h e a d-o f-st a t e, or result o f t h e case, alt h o u g h t h ere is a p ossibility
some other f orm o f immunity. Assuming adequate in- t h a t evid e nce pro d uce d a t trial co uld b e use d t o
f orm a tio n, CJA ca n file a la wsuit a g ainst a travelin g arrest a n d d e p ort t h e d e f e n d a n t.
perpetrator with only a fe w days notice. 2) It is u nlik ely t h a t w e w ill b e a ble t o o b t ain t h e
d e f e n d a n t’s asse ts; in a ny eve n t, t h e d esire t o d o
FINDING APPROPRIATE PLAINTIFFS so sh o uld not be a reaso n f or a perso n t o join o ne
To file a civil la wsuit, CJA must find plaintiffs w ho w ere o f these la wsuits.
victims o f the perpetrator. We do this by spreading in- 3) W e ca n k e e p t h e p erso n’s id e n tity f ully co n fid e n-
f orm a tio n q uie tly t hro u g h vario us n e t w orks. W e are tial d urin g t h e initial st a g es o f t h e la wsuit b u t, if
careful to use only trusted net w orks so as not to tip off t h e d e f e n d a n t d ecid es t o d e f e n d himself, a n d is
t h e d e f e n d a n t b e f ore w e file t h e case. If a d e f e n d a n t willing to participate in a trial, then he has a right
le arns o f a case b e f ore h e is f orm ally serve d w it h a t o k n o w t h e id e n tities o f t h e plain tif fs a n d w it-
co m plain t, h e m ay fle e, d estroy evid e nce, in timid a t e n esses. A t t his p oin t, a plain tif f may dro p o u t o f a
w it nesses, or hide his assets. la wsuit if he or she w an ts t o main tain a co n fiden-
tial identity. Accordingly, w e alw ays discuss security

14
 co ncerns a t le n g t h, a n d e nco ura g e in t erest e d BRINGING A CIVIL LAW SUIT
people to consider the risks to themselves and their O nce CJA h as loca t e d a n a p pro pria t e d e f e n d a n t, a n d
families, especially if any live in a defendant’s home has con firmed that victims o f the defendant or surviv-
co u n try. In t erest e d p erso ns so me times t hin k t h a t ing relatives of victims w ant to be involved in a suit, w e
w e can protect them, or that the U.S. courts will do evalu a t e w h e t h er t h ere are a ny insurm o u n t a ble o b-
so. W e m a k e very cle ar t h a t n eit h er w e n or t h e st acles t o brin gin g t h e suit (se e t h e sectio n o n ch al-
courts can provide protection, although w e will do le n g es, b elo w) a n d w h e t h er t h e case w ill a dva nce a n
all w e can to obtain appropriate police protection important human rights objective and benefit a broad
if they should be threatened. In some of our cases, group of survivors.
clients and witnesses have received threats of physi-
cal harm. If w e decide that the case is legally viable and advances
4) Th ese cases t a k e a lo n g tim e—g e n erally t w o t o important human rights objectives, w e prepare a com-
f o ur years from t h e filin g o f t h e complain t u n til a plaint f or filing. A t this stage w e may need to conduct
final judgment. a d ditio n al f act-fin din g t o e nsure t h a t w e are lik ely t o
5) Th ere al w ays exists t h e p ossibility t h a t a case w ill prove the case at trial. W e do not need, at this stage, to
be lost. Cases can be dismissed based on technicali- h ave asse m ble d all o f t h e n ecessary evid e nce, b u t w e
ties that have little or nothing to do with the claim’s lik e t o h ave a t le ast o n e exp ert w it n ess a n d a g o o d
merits. Potential plaintif fs have to be a w are o f all sense of ho w w e will find necessary witnesses and other
possible outcomes. evidence.

EXAMPLE: EL SALVADOR hard to cultivate relationships with these groups in order to

In 2002, CJA won a $54.6 million judgment against two Salva- maintain communication at every stage of the case’s develop-
doran generals, both former Ministers of Defense, who had ment. Our clients and supporters helped to spread the word
retired to Florida in 1989. Two years later, CJA won a $10 about our cases, and clients spoke publicly as well as in small
million default judgment against Alvaro Saravia, a key orga- meetings about the benefits and challenges of these cases.
nizer of the assassination of Monsenor Oscar Romero. In 2005,
CJA will go to trial against former Salvadoran military com- Bringing the civil lawsuits
mander Nicolas Carranza. CJA has partnered with outstanding pro bono law firms on each
of the Salvadoran cases. Each firm donates on average more
Tracking down the perpetrators than 2,000 hours of attorney time to the cases, as well as
Although the two generals were part of the ruling junta of El $100,000 or more in out-of-pocket costs.
Salvador, and thus high-profile, they were able to live in obscu-
rity in the U.S. by settling in prosperous communities in Florida Both generals decided to defend and appear personally at trial,
that did not include Salvadorans from outside the elite class. making it clear that they did not want to give up their South
Their whereabouts were discovered when a TV station broad- Florida lifestyles. In the case filed against Saravia for the assas-
cast a show on immigrants who had done well in Florida, and sination of Archbishop Romero, the defendant got wind of the
featured one of the generals. A viewer reported this sighting to suit and went underground. Nonetheless, the attorneys suc-
a human rights organization, the Lawyers Committee for Hu- cessfully argued for a default judgment against him. Carranza
man Rights, which investigated and found both the televized has also decided to defend and the pending case will go to a
general and the other general living in South Florida. jury trial.

During the trial against these men, journalists began discussing Working with authorities
the presence of other Salvadoran human rights abusers living The evidence presented against the generals, and the publicity
in the U.S. These reports, along with the help of the Salva- attracted by the trial, motivated the U.S. immigration service
doran community, led to the discovery that Saravia was selling to investigate grounds for deporting the two men. Officials
used cars in Modesto, California, and that Carranza was re- have been eager to locate defendant Saravia since his presence
tired and living in Memphis, Tennessee. in California become publicized by CJA’s case. Publicity dur-
ing the trial in Fresno, California, encouraged more witnesses
Finding plaintiffs and witnesses to come forward with helpful information, and authorities are
Through the strong leadership of grassroots groups within El closing in on him. Finally, defendant Carranza became a U.S.
Salvador and within the U.S. Salvadoran community, that citizen in 1992. CJA is providing information to the proper
community rose to the challenge of gathering plaintiffs and authorities to help them exercise their authority to de-natural-
evidence against the perpetrators. CJA attorneys have worked ize and deport him.

Reparations: Using civil lawsuits against human rights abusers 15

A t this stage w e also seek to enlist the participation of Th e act u al trial ca n last fro m a f e w d ays t o several
a private la w firm to w ork on the case pro bono . A case w e e ks, d e p e n din g o n t h e n u m b er o f w it n esses a n d
req uires h u n dreds, even t h o usan ds, o f h o urs o f at t or- plain tiffs involve d. If t h e d e f e n d a n t hires a la w yer, it
n ey tim e, a n d t h e costs—if t h e d e f e n d a n t d ecid es t o usu ally t a k es t w o t o t hre e ye ars fro m t h e d a t e t h a t
d e f e n d t h e suit—are likely t o excee d $100,000. t h e co m plain t is file d t o t h e act u al trial. If t h e d e f e n-
dant does not defend himself, it can still take as long as
O nce t h e co m plain t is file d a n d p erso n ally serve d o n one to t w o years to complete the process of obtaining
t h e d e f e n d a n t, t h e f u t ure o f t h e suit d e p e n ds o n a default judgment.
w h e t h er t h e d e f e n d a n t ch o oses t o d e f e n d. As t h ese
suits are o nly civil actio ns, a d e f e n d a n t ca n ch o ose t o A fter a successful jury verdict is entered, the final stage
sim ply ig n ore t h e co m plain t a n d f ace a d e f a ult ju d g- in t he litigatio n is t he collectio n o f assets. This process
ment. Defendants w ho are only visiting the U.S. w hen ca n b e exp e nsive a n d co m plica t e d. CJA h as f o u n d it
served with the suit are more likely to do this, particu- use f ul a t t his st a g e t o involve a t t orn eys w it h sp ecial
larly if t h eir co n t acts w it h t h e U.S. are minim al. It is expertise in t he area o f asset collectio n.
CJA’s experie nce, h o w ever, t ha t in divid uals w h o w a n t
t o m ain t ain a cert ain lif estyle in t h e U.S. w ill hire a SEEKING TO HAVE THE DEFENDANT
la w yer a n d resp o n d t o t h e la wsuit. Such cases alm ost CRIMINALLY PROSECUTED OR DEPORTED
alw ays go to jury trial. D espit e t h e use f uln ess o f brin gin g civil claims a g ainst
t h ese p erp e tra t ors, t h e suits still d o n o t a m o u n t t o
Pre-trial w ork inclu d es several t asks: criminal prosecutions. Although depriving individuals of
• dra f tin g resp o nses t o m o tio ns t o dismiss file d by t h eir w e alt h ca n b e a n e f f ective f orm o f justice, t h e
the defendant’s la wyer, ultim a t e exercise o f justice is t h eir incarcera tio n f or
• pursuing civil discovery (locating witnesses and evi- the crimes they have committed against the people of
dence), their o w n communities. To this end, CJA recognizes the
• dra f tin g in t erro g a t ories (q u estio ns f or o p p osin g imp ortance o f w orkin g w it h immigratio n au t h orities,
counsel to answ er about the evidence that will be especially in cases w here deportation may lead to crimi-
introduced) and responding to interrogatories, n al prosecu tio n in t h e h o m e co u n try. Th ere are also
• t a kin g d e p ositio ns o f t h e d e f e n d a n t a n d t h e o t h er b e n e fits t o w orkin g w it h t h ese o f ficials, inclu d-
defendant’s witnesses, and preparing plaintiffs and ing but not limited to the sharing of information.
plaintiffs’ witnesses for their depositions by oppos-
ing counsel; In t h e U.S., im migra tio n a u t h orities ca n arrest a n o n-
• preparing plaintiffs and witnesses psychologically citiz e n f or a m a t erial misre prese n t a tio n o n his or h er
f or w h a t t h ey ca n exp ect a t trial. immigra tio n f orms. M a ny f orms ask if a p plica n ts ever
participated in t he persecu tio n o f o t hers. Peo ple w h o
answ er no, and w ho are sho w n by CJA to be misrepre-
se n tin g t h e mselves, ca n b e arrest e d by t h e im migra-
tion service and placed in deportation proceedings. If a
deportation is contested, w hich it usually is, the person
receives a trial w hich is similar to a criminal trial in many
w ays. A nd if the misrepresentation is clear cut, the per-
son can be criminally prosecuted for perjury.

In D ece m b er 2004, Co n gress p asse d a la w givin g t h e

immigration service ne w authority to deport non-U.S.
citizens w ho have participated in torture or extrajudi-
cial killing outside of the U.S. O ne Ethiopian man—w ho
in a 1994 ATCA case bro u g h t by t he Cen ter f or Co nsti-
tutional Rights w as proven to be a torturer—has been
arrest e d a n d place d in d e p ort a tio n proce e din gs, a n d
m ore t h a n 200 susp ect e d a b users are b ein g investi-
gated. Recently, using this new law, a coalition of groups
The legal team behind the successful judgment against Alvaro Saravia and individuals w as able to persuade U.S. authorities to
stands outside the federal courthouse in Fresno, CA: (from left to d e ny a visit or’s visa t o N are n dra M o di, G overn or o f
right starting with the back row): Matt Eisenbrandt of CJA, Russel
Cohen of Heller Ehrman, Nico Van Alestyn of Heller Ehrman, Clare Gujurat, India, because o f his close involvement in the
T.O’Hoyne of Heller Ehrman, Patty Blum of CJA, and Almudena a n ti-M uslim rio t in 2002. Re gre t t a bly, t h ese im migra-
Bernabeu of CJA. tion la ws leave open the possibility of abuse. CJA w orks

16
 Seco n d, it is o f ten dif ficult t o fin d victims or w it nesses
willing to participate in a la wsuit. This is especially the
case if security re m ains a g e n uin e co ncern. Pe o ple in
the U.S. often have family members still living at home
w h o are vuln era ble t o re prisal, a n d t h ere are crimin al
n e t w orks t h a t o p era t e eve n in t h e U.S. CJA h as b e e n
a dvise d, f or exa m ple, t o b e extre m ely care f ul a b o u t
brin gin g cases a g ainst d e f e n d a n ts fro m G u a t e m ala
a n d Colo m bia. Th e m ore rece n t t h e crim es, t h e m ore
d a n g ero us t h e d e f e n d a n ts a n d t h eir crimin al n e t-
w orks.

Evidence gat herin g is also a challen ge, especially co n-

cernin g a b uses t h a t h a p p e n e d m a ny ye ars a g o. H o w-
ever, expert testimony—including that of human rights
Gloria and Oscar Reyes brought a lawsuit against Honduran former
reporters—is admissible to establish patterns of abuse.
military commander Grijalba.
N e x t , p l a i n t i f f s a n d w i t n e ss e s a r e l i k e l y t o b e
re tra u m a tiz e d by t h e process o f t ellin g t h eir st ories,
w it h im migra tio n la w yers a n d a g e n ts t o e nco ura g e alt h o u g h m ost say t h a t t h e exp erie nce is w ort h w hile.
t h e m t o investig a t e d e f e n d a n ts in o ur cases, a n d o n Th ere are m ore t h a n 30 t ort ure tre a t m e n t ce n t ers
occasion is able to provide exculpatory information that t hro u g h o u t t h e U nit e d St a t es, a n d pro f essio n als a t
persuades them to close an investigation w hen appro- t h ese ce n t ers h ave expresse d t h eir w illin g n ess t o pro-
priate. vide services to plaintiffs and witnesses free of charge.
M ore t h a n h alf o f CJA’s clie n ts h ave receive d services
In a d ditio n, t h e D e p art me n t o f Justice ca n initia t e a fro m t h ese ce n t ers.
criminal prosecution for torture pursuant to a 1994 la w
t h a t makes t ort ure commit t e d o u tsid e t h e U.S. a f t er Asset collection presents uncharted and challenging ter-
1994 a crime that can be prosecuted in the U.S. Although ritory for many of these cases. This can be an extremely
t h e D OJ h as ye t t o exercise its a u t h ority in t his area, expensive endeavor, without guaranteed results. A nd
with proper guidance from human rights groups such as depending on the defendant’s sophistication, assets are
CJA t his la w co uld b e use d pro d uctively t o achieve a easily moved o f f shore or put under another name.
higher level of accountability.

CHALLENGES IN
BRINGING THESE LAWSUITS
The number of ATCA/TVPA cases brought against indi- Before the trial started, I
vidual perpetrators pales in comparison to the number couldn’t sleep. I felt fear knowing that the
of human rights abusers w ho no w live in or visit the U.S. generals would confront me. I wasn't frightened
Th ere are several re aso ns w hy such a limit e d n u m b er of them so much as of how my body might react. I was
of cases have succeeded. M any relate to a lack of avail- afraid of how I would feel being face to face with them again,
a ble reso urces, b u t o t h ers are in trinsic t o a ny ju dicial so close….I had a lot of problems with insomnia; I had more
process. frequent bouts of depression than I normally do. I was afraid for my
family in El Salvador, and I still am afraid. But my mother and my
Th e first dif ficulty is t h a t o f fin din g t h e h u m a n rig h ts family have accepted that, and they’ve told me that. They used to
a b users. This ca n b e e asy if t h e d e f e n d a n t h as b e e n wonder why was I getting myself into these problems again, and causing
o u tsp o k e n or if t h e p articular re f u g e e co m m u nity is problems for them, too. It was a tremendous internal challenge. But
su f ficien tly tig h t-knit. Bu t some de f en dan ts are expe- little by little, talking with them and others has helped me to clarify my
rie nce d in k e e pin g a lo w pro file. So m e h ave ch a n g e d thoughts, and strengthen my conviction in carrying through with
t h eir n a m es, so m e are eve n b elieve d t o h ave u n d er- this case, and to see the long-term historical impact of this case.
g o n e plastic surg ery. Such cases re q uire a d ditio n al re-
sources, including private investigators. O ften it is simply Juan Romagoza, regarding the psychological preparation for
n o t p ossible t o loca t e p erp e tra t ors b elieve d t o b e in and significance of Romagoza, Gonzalez, & Mauricio
t he U.S. v. Garcia & Vides Casanova: a case against two
high ranking Salvadoran generals for tor-
ture.

Reparations: Using civil lawsuits against human rights abusers 17

Although CJA has generally had a positive relationship LESSONS LEARNED
with immigration officials, this area also presents chal- CJA h as le arn e d t h a t p u blicity is k ey if a la wsuit is t o
lenges. Government agencies are bureaucratic and po- h ave im p act. W e h ave h a d t o d evelo p a stra t e gic a p-
litical. O t h er a g e ncies, inclu din g t h e CIA a n d St a t e pro ach t o involvin g t h e m e dia in t h e process. This h as
D e p art m e n t, occasio n ally b eco m e involve d in t h ese meant that every occasion and every development dur-
cases. ing the course of litigation must be used as an opportu-
nity t o dra w a t t e n tio n t o t h e big g er issu es a t h a n d -
Finally, one of the greatest difficulties in bringing a suc- namely, the existence of impunity in the target country
cessful ATCA case is the ongoing challenge to this area a n d t h e U.S., t h e exist e nce o f p erp e tra t ors “ a m o n g
of la w. The recent 2004 Supreme Court ruling on Sosa v. us,” the value of the testimonial aspect of the trial, and
Alvarez-M achain did N OT resolve several potential le- the significance of the final judgment, both legally and
gal challenges to ATCA claims.15 Cases can be dismissed practically.
if t h ey are f o u n d t o viola t e t h e st a t u t e o f limit a tio ns
(claims must be filed within ten years of the crime, but A n o t h er sig nifica n t lesso n is t h e valu e f or survivors o f
courts have extended this period for equitable reasons- the process as much as the outcome. To individual plain-
i.e. w h e n t h e d e f e n d a n t w as a bse n t fro m t h e U.S., or tiffs, the process of being involved in the la wsuit, testi-
victims a n d w it n esses w ere d e t erre d fro m brin gin g a fyin g, a n d co n fro n tin g t h eir f orm er p ersecu t ors is a t
suit due to a w ell-founded fear of reprisal). They can be least as imp ortan t as w in nin g t he case.
dismisse d if t h e d e f e n d a n t is f o u n d t o h ave imm u nity
by virtue of status as a current head of state or foreign Finally, it is crucial that survivors have realistic expecta-
minister, or by virtue of diplomatic functions in the U.S. tions about w hat can and cannot be accomplished with
Co urts m ay d e t ermin e t h a t t h e plain tif fs co uld h ave, these cases. The reality concerning the dif ficulty o f as-
a n d t h ere f ore sh o uld h ave, bro u g h t t h e suit in t h eir se t collectio n, f or inst a nce, is o n e are a in w hich a t t or-
h o m e co u n try. Th ere are several o t h er le g al gro u n ds neys must be candid with survivors, but participants in
upon w hich suits may, and have been, dismissed. t h ese suits m ust b e re alistic in reco g nizin g t h e limit a-
tions of civil la wsuits.

W hen p ursued correctly an d cau tio usly, t his tactic can

prove a valuable asset to the greater global movement
f or justice a n d t h e resp ect f or rule o f la w.

15
U.S. Supreme Court clearly stated in Rasul v. Bush (124 S. Ct. 2686
(2004)) that Guantanamo detainees could bring ATCA claims. This
will likely include claims of international human rights violations, in-
cluding torture and war crimes.

18
Sample memo provided to CJA clients in their native language

BEING A PLAINTIFF IN A LAWSUIT If I decide to become a plaintiff, what will I have to do?
Do I qualify to be a plaintiff in the case? If you decide to become a plaintiff, lawyers working on the case will
If you were tortured or are the parent, child, spouse, brother or ask for your help in obtaining information and documents that can
sister of someone who was killed, you may be able to join the be used in court to show what happened to you or your relative. You
lawsuit as a “plaintiff.” Being a plaintiff would mean that you are may be asked to help lawyers locate and talk to witnesses. The
personally accusing the person or organization that we sue (the lawyers will need to discuss important decisions in the case with you.
“defendant”) of being responsible for what happened to you or your
relative, and asking the court to require the defendant to pay a If the defendant does not participate in the case, the court will hold
money penalty. As a plaintiff, ordinarily your name would be identi- a hearing to assess a money penalty against the defendant. All plain-
fied on all papers filed with the court, and thus the defendant and tiffs should be present at this hearing, although on occasion we have
the public would be able to know that you are involved. However, arranged for plaintiffs to be available by telephone. If you want to
as explained below, you may be able to keep your identity secret, if attend the hearing in person, we (or one of the other organizations
you are concerned for your safety. involved) will pay for your travel, housing, and all related costs.
Before the hearing, lawyers will talk with you to ensure that you are
Will I get any money if I become a plaintiff? prepared to answer questions.
There is a chance you will be able to recover money as compensa-
tion for what happened to you or your relative, although this is If the defendant does participate in the case and hires a lawyer you
unlikely. There have been many cases brought in the United States may have to respond to written questions from the defendant. You
by people who have been tortured or who lost family members in may also have to provide testimony at a deposition. A deposition is
violence that occurred in other countries. In almost all of these a proceeding in which the defendant’s lawyer and our lawyers have
cases, the plaintiffs have not received any money. There are two the chance to ask you questions about the case. The deposition can
reasons. First, some cases have been rejected by the courts on legal take place in your country near where you live. You will also need to
grounds. Second, we are only entitled to get money from the defen- attend the trial in the United States. We will pay for you to travel to
dants themselves and the defendants generally do not have any the U.S. and for housing accommodations while here. It is likely
money or property in the United States. If their money is in another that you will have to give testimony in court at the trial. This means
country it is very difficult for us to get it. that you will have to answer questions from one of our lawyers and
from the defendant's lawyer in front of the judge and jury. The
What are the reasons why I might want to be a plaintiff? defendant may be present at the trial. We will work with you before
Participating in a case allows you the chance to seek justice and to the trial to prepare you for everything that might happen.
have a U.S. court hold accountable people who were responsible for
the abuse you or your relative suffered. The case can help establish How long will the case take?
an historical record of responsibility for terrible human rights atroci- It is important to realize that this case will take a long time to reach
ties. After we file a case, we make efforts to publicize the case to a conclusion. We probably will not be able to file the case for several
send a message that perpetrators can be held accountable, and to more months. Once we file the lawsuit, the length of the process
provide hope to those who have suffered. A victory will establish will depend on whether the defendant participates in the case. If he
important legal precedent for future cases against human rights does not, it will likely take one or two years before the case is
violators. finished. If the defendant defends himself in the case and it goes to
a trial, the process could take three years or longer.
If we sue a person, will that person be arrested?
No, at least not directly as a result of the civil lawsuit. We do not If I become a plaintiff, will everyone know that I am involved in
have the ability to put the perpetrator in jail; only government the case?
prosecutors can bring criminal charges against the perpetrator. You will need to consider whether being a plaintiff might jeopardize
Moreover, for most crimes committed abroad to be subject to crimi- your security, or that of your family or other persons. If necessary,
nal prosecution in the United States, the defendant or the victim you can file the case under a pseudonym (John or Jane Doe). How-
must be a U.S. citizen. However, if we win the lawsuit, it is possible ever, if the defendant responds to the case, he may request informa-
that the U.S. government will revoke the defendant's visa and will tion about the identity of the plaintiffs. We can provide you with
not allow him to return to the United States. another document that explains this process in more detail.

If we sue a person, will he/she be required to attend the trial? There will likely be significant attention paid to this case in the
The person we sue is not required to participate in the case. We can press and media. As a plaintiff, you would not be required to speak
only bring a lawsuit against persons visiting or residing in the United with the press and public.
States, or against an organization that has offices or agents here. If
the defendant is from another country he will likely return to that What other problems might I face if I become a plaintiff?
country and not defend the case in the United States. In this situa- You should also consider the emotional implications of being a
tion, we would ask the court to rule in our favor. The court would plaintiff. You will have to talk to the lawyers and in court about the
likely do this, and then hold a hearing to determine the penalty to terrible things that happened. This is not easy. Our clients generally
be assessed against the defendant. This penalty will be a certain have felt that it is worthwhile to talk about the things that hap-
amount of money. However, recovering the money from the defen- pened to them, and to speak out for their families and all those who
dant in this circumstance will be extremely difficult to do. suffered. However, this is often very difficult to do.

Reparations: Using civil lawsuits against human rights abusers 19

ORGANIZATIONS WORKING ON ATCA LITIGATION ORGANIZATIONS THAT WORK TO BRING HUMAN
Center for Constitutional Rights RIGHTS ABUSERS TO JUSTICE
N e w York A mnesty International
w w w.ccr-ny.org w w w.amnesty.org

Cen ter f or Justice an d Democracy Center for Human Rights & Constitutional La w
N e w York w w w.centerforhumanrights.org
w w w.centerjd.org
Center f or Justice and International La w
Earth Rights w w w.cejil.org
W ashington, DC
w w w.earthrights.org M ay I Sp e a k Fre ely?
w w w.notortureforprofit.org/petition/ w w w.mayispeakfreely.org

International Labor Rights Fund Re dress Trust

W ashington, DC Universal Jurisdiction Information Net w ork
w w w.laborrights.org London
w w w.redress.org
Human Rights First w w w.u-j.info.
(La wyers Commit tee f or Human Rig h ts)
Ne w York, W ashington DC, O akland Derechos
w w w.humanrightsfirst.org w w w.derechos.org

w w w.globalpolicy.org Human Rights W atch

w ebsite o f articles & in f ormatio n w w w.hrw.org
regarding the ATCA
w w w.globalpolicy.org/intljustice/atca/ Transnational Institute - Bring Pinochet to Justice!
atcaindx.htm w w w.tni.org/pinochet/index.htm

International Criminal Tribunal

f or t he f ormer Yu g oslavia
w w w.un.org/icty/

International Criminal Tribunal for Rw anda

w w w.ictr.org

20