Printed On 8/13/2002:
Accountability Without Hypocrisy: Consistent Standards, Honest History
My specialty within the field of international law is accountability, the study and development of mechanisms to hold accountable those who violate international human rights standards. As a sub-specialty, I have worked for many years on a particular approach to accountability: civil lawsuits in U.S. federal court against individuals, corporations and governments responsible for egregious human rights abuses. This paper is an edited version of a talk I gave at a symposium discussing responses to rogue states. My assigned topic was the use of civil litigation as a means of holding such states accountable for their human rights abuses.
The events of September 11, 2001 starkly reshaped our symposium. Most of the participants talked about terrorism -- its sources and sponsors, the legal regimes governing international and domestic responses to terrorism, and the use of force to combat it. Terrorism was my starting point as well. But my views about accountability for such crimes are the product of my own experiences with terrorism, experiences that have led me to a very different framework than most of those who spoke at the symposium. As a foundation for my discussion of civil remedies for terrorism and other human rights abuses, let me first explain my own close encounters with terrorism and terrorists of very different origins.
Terrorism in New York, Terrorism in Nicaragua
Living in a suburb of New York City, I was deeply affected by the September 11th attacks. A relative of mine worked on a top floor of one of the World Trade Towers. Within minutes of the attacks I watched televised pictures of her floor engulfed in flames. I soon learned of an extraordinary stroke of luck: she was late to work that morning, standing on the street outside the Towers when a plane hit her office. Almost 200 of her co-workers died in the attack, but she survived, physically unharmed.
Such stories are all too common around New York City. Everyone I know was touched in some way. We all know people who lost relatives. Countless were saved by near misses. Many of us saw the buildings collapse. Others were displaced from homes or offices. Most still suffer the after-effects of these traumatic events.
September 11th, however, was the second time that terrorism has closely impacted my life. The first was in the 1980’s when I lived in Nicaragua, and the state sponsor of the terrorism was my own government, the United States. Supported by President Reagan and hundreds of millions of dollars of U.S. government funding, the counterrevolutionaries (the “contra”) fighting to overthrow Nicaragua’s Sandinista government murdered, tortured and kidnapped civilians -- peasants, teachers, engineers, doctors, nurses, many of them my friends and neighbors.1
In April 1987, the terror struck my inner circle of friends. I first heard an unconfirmed report that something had happened to Ben Linder, a U.S. civil engineer designing a mini-hydroelectric plant in a mountain village in northern Nicaragua. I joined a sobbing gathering of friends as we learned the horrifying details: Ben and a group of Nicaraguans were ambushed while building a dam to measure water flow through a mountain stream. I later investigated his murder on behalf of his parents.2 After being wounded in the legs, Ben was shot at close range, a bullet to his forehead. I met the struggling widows and children of the two Nicaraguans killed with him, one stabbed in the heart after being wounded by gunfire.
Dozens of similar accounts haunt my memories: the coffee grower tortured and murdered because he insisted on continuing to harvest his crop despite “contra” threats; the terrified fishermen who survived an attack with minor wounds by diving into the water off their boats; families with young children sleeping on the floor of a rudimentary school because their homes had been burned; teachers and doctors forced to leave their jobs in rural areas in the face of death threats.
Perhaps my most chilling memory is of an interview with a “contra” commander who cheerfully described torture and murder of civilians, all with a smile on his face -- a killing machine trained and paid by my own government. The Nicaraguan government also committed human rights violations, but the vast number of horrific abuses were committed by the forces funded, trained, organized and directed by the government of the United States. The war inflicted tens of thousands of casualties -- and most of their blood is on our hands.
I feel deeply for those who lost loved ones on September 11th. I cry when I read their stories and see their faces -- bewildered children, young women struggling to raise families alone, older widows and widowers facing life without their longtime partners. But I also cry when I remember the close Nicaraguan friend whose sister was killed by a bomb made in the USA. I still flinch at the memory of the colleague whose son was shot in the head by the “contra”: he survived but lost much of his memory and all of his emotional control. He became an angry, often frightening dependent in his parents’ home. I carry with me the anger of Ben Linder’s father, who died knowing that U.S. government officials responsible for the murder of his son were never punished for their crimes.
Nicaragua in the 1980’s was hardly the first or last time that the United States government has employed the tactics of terror in the effort to overthrow a government it considers unfriendly, to install a government more to its liking or to protect an unpopular government from removal by its own people: Iran and Guatemala in the 1950’s, the Congo in the 1960’s, East Timor and Chile in the 1970’s -- the examples are numerous and well-documented.3 The numbers of casualties mount into the hundreds of thousands, if not millions, but very few are remembered in this country. We have wiped them from our collective memory, from our history of ourselves.
I approached our symposium topic, responding to rogue regimes, marked by this understanding of history. Other speakers at our symposium recited a list of terrorist attacks aimed at U.S. military personnel and civilians. They appeared to view the United States as a generous, meek giant, fighting terrorists with both hands tied behind our back. But when I look at world events over the past fifty years, I do not see a gentle giant suffering from decades of unredressed attacks. The very different picture I see is the one seen by many people around the world: the United States as a big bully, throwing our weight around the world. We have received an occasional punch, none more vicious than that on September 11th, and we have done much good, but we have also terrorized large swaths of the world through decades of military interventions and support for terrorist regimes and organizations.
Entering into this conversation with my friends and neighbors after September 11th, several said to me in anger, “But are you claiming that this history of U.S. wrongdoing justifies what was done to us?” Of course not. But it does, it should, affect the way in which we understand terrorism and our responses to it. The battle against terrorism is not one of pitting good people (us, and those who stand with us) against evil people (all those who attack us or do not join us in our fight). Terrorism is a tool of combat that has been employed all too frequently by far too many individuals, organizations and governments, including our own.
To wage an effective campaign against terrorism, we must first acknowledge that we too have stooped to employ it. We must support mechanisms to prevent our own use of terrorism in the future, to ensure that we stay on the side of the good. This requires applying a consistent, even-handed definition of terrorism to ourselves as well as to others -- forgoing the hypocrisy of supporting terrorism when it serves our interests, while waging war against it when we are the target. This clearheaded objectivity is sorely lacking in the U.S. response to September 11th.
One key step would be to join multilateral efforts to promote accountability through the rule of law, to empower alternatives to the unilateral use of force. With this goal, the application of civil remedies for human rights abuses is one contribution to strengthening the role of international law in response to human rights abuses around the world.
Civil Remedies for Human Rights Abuses
The international community has worked on many fronts over the past fifty years to construct peaceful responses to violations of international law. These efforts have led to the elaboration of detailed norms governing international human rights and terrorism. Most international law before World War II had governed interactions among states and their governments. The Nazi atrocities spurred two crucial developments. First, international norms now govern a state’s treatment of its own citizens. Abuses such as genocide and torture are prohibited by international law when committed within a state’s own territory as well as across national lines. Second, international law increasingly addresses the misconduct of private individuals and organizations, rather than just official actions. Genocide is prohibited whether committed by government officials or by private actors. Many terrorist acts -- hijacking, hostage-taking, use of explosives -- are international crimes prohibited for private as well as state actors.
Enforcement of these international rules remains spotty. International mechanisms created over the past decades are still at their early stages of development. Ad hoc tribunals have prosecuted dozens of individuals for international crimes committed in the former Yugoslavia and Rwanda. The permanent International Criminal Court that will soon come into being -- without the participation of the United States -- will be empowered to bring to trial both citizens of member states and those who have committed designated international crimes within their territory.
As with most rules of international law, much of the enforcement of human rights and anti-terrorism norms must take place within domestic legal systems. Many nations have begun domestic criminal prosecutions of individuals for international law violations.4 Some involve crimes committed within the territory of the forum state or against its citizens. Other prosecutions, however, rest upon the principle of universal jurisdiction. Universal jurisdiction permits, or at times requires, a state to hold accountable those responsible for certain egregious violations of international law even where the offense has no relationship to its territory or citizens. Criminal prosecutions have been initiated throughout Europe and in one African state, Senegal.5
In the United States domestic legal system, accountability for international violations has been implemented through civil litigation rather than criminal prosecutions.6 This reflects in part a reluctance of our federal government to undertake such prosecutions. But it is also a product of characteristics of the U.S. legal system that render civil lawsuits a more viable and attractive option here. These include principles of jurisdiction and choice of law that make such lawsuits possible, as well as a legal and political culture that supports private use of the legal system to impact upon national policies.7
U.S. civil lawsuits for human rights violations originated as the latest application of a U.S. statute, the Alien Tort Claims Act (ATCA), which states, “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations . . . .”8 Originally enacted in 1789,9 the statute was largely ignored for 200 years.10 The modern line of ATCA human rights cases began in 1980 with the Second Circuit decision in Filártiga v. Peña-Irala.11 Joelito Filártiga, a seventeen-year-old Paraguayan, was tortured to death in Paraguay in 1976 by Americo Norberto Peña-Irala, a Paraguayan police officer, in retaliation for his father’s political opposition to the military dictatorship. Peña-Irala fled Paraguay in 1978 and moved to New York City; the following year, the Filártiga family sued him in federal district court seeking damages for Joelito’s torture and death. The Second Circuit ruled that the lawsuit fell within the reach of the ATCA, holding that the statute incorporates the law of nations in its current form and that modern international law prohibits human rights abuses committed by government officials against their own citizens. The court concluded that “official torture is now prohibited by the law of nations” and therefore triggered jurisdiction under the ATCA.12
Since 1980, a series of decisions has developed both the list of human rights abuses addressed by the statute and the categories of defendants subject to suit. Cases have addressed claims such as genocide, war crimes, summary execution, disappearance, and arbitrary detention, as well as torture; claims have been upheld when the court finds that the alleged tort satisfies the international law definition of a universally prohibited offense.13 The cases have also upheld claims against commanding officers, officials of de facto states, U.S. and local government officials, and corporations.14 The courts look to international law to define who can be held liable for the violation. Since the international law definition of torture requires some public action, the cases have limited torture claims to those that allege that the defendant acted under color of official authority.15 Since genocide is defined as an international violation when committed by private persons, claims of genocide have been accepted even in the absence of state action.16
Despite academic debates about the intent of the ATCA,17 all courts that have decided the issue have concluded that the statute authorizes suits in federal court by aliens for torts in violation of international law, no matter where committed. For example, in Trajano v. Marcos, the Ninth Circuit stated, “[w]e start with the face of the statute. It requires a claim by an alien, a tort, and a violation of international law.”18 The Supreme Court has never addressed the issue, but has repeatedly denied petitions seeking review of the issue.19 A modern statute, the Torture Victim Protection Act (TVPA), creates a right to sue for torture or extrajudicial execution, extending that right to sue to U.S. citizens as well as aliens.20 The legislative report accompanying the TVPA stresses its support for the application of the ATCA to international human rights cases.21
Civil litigation can play an important role in the search for accountability for human rights violations. Litigation that leads to an enforceable money judgment offers the plaintiff compensation for the injuries inflicted by the defendant, punishes those responsible for those harms, and serves as a deterrent to future abuses. Even if collection of the judgment is impossible, civil lawsuits still serve the accountability drive, offering benefits to the victim, to the human rights movement, and to society as a whole.22 Many such lawsuits lead to judicial recognition of developing rules of law, creating a precedent for future policy development. The judicial proceeding may produce a full factual investigation, identifying those responsible and leading to public recognition of victim’s injuries and the defendant’s culpability. The defendant may be punished by this public exposure as well as by legal consequences such as deportation or the denial of visas.23 The cases assist the human rights movements in the countries where the abuses took place, offering a focus for education and organizing about human rights violations. They also help educate people in the United States about international law, human rights and accountability. Although criminal prosecutions may entail more severe penalties for the defendant, civil remedies play an important role where criminal prosecution is not possible, and complement criminal prosecutions where they take place.
One of the reasons civil litigation is attractive in the United States is the possibility of punitive damages awards. Such judgments serve as a kind of community condemnation of the defendant, even where they cannot be collected. Punitive damages express society’s revulsion for the defendant’s conduct, and thus resemble criminal penalties. “[P]unitive damages advance the interests of punishment and deterrence, which are also among the interests advanced by the criminal law . . . .”24 United States civil litigation thus has much in common with criminal prosecutions in other legal systems, particularly systems in which criminal prosecutions can be initiated by private parties.25
Terrorism and Civil Litigation
An early effort to bring a claim of terrorism under the ATCA was unsuccessful. Although the three-judge panel produced three splintered opinions,26 even the judge most supportive of human rights litigation rejected the terrorism claim:
[T]he nations of the world are so divisively split on the legitimacy of such [terrorist] aggression as to make it impossible to pinpoint an area of harmony or consensus. . . . Given this division, I do not believe that under current law terrorist attacks amount to law of nations violations.27
The problem identified by Judge Edwards -- lack of consensus about what constitutes illegitimate terrorism -- persists despite intensive worldwide attention to the issue. However, it may be possible to assert a terrorism claim under the ATCA by arguing that consensus exists as to subparts of the international violation.28 Applying this approach, at a minimum, terrorism claims probably can be based upon hijacking, hostage-taking, bombings, and other offenses condemned by existing international conventions. In addition, a future case might argue that a consensus exists as to a larger subset of terrorism. Indeed, Professor Harold Koh argued fifteen years ago that the terrorism claim in Tel-Oren could have been sustained had the judges recognized that the acts alleged in the complaint fell within a core of universally condemned conduct.29 Koh defines this core to encompass an “organized and deliberate attack upon innocent civilians without a collateral military target . . . .”30 Where the facts of a case fall within such a core, it might be possible to litigate an ATCA case under the rubric of terrorism.
As part of an anti-terrorism initiative, Congress has also authorized civil suits for victims of terrorism pursuant to a separate statute.31 The provision authorizes a U.S. national “injured in his or her person, property, or business by reason of an act of international terrorism” to sue for treble damages.32 “[I]nternational terrorism” is defined by statute as violent or dangerous acts that would constitute crimes if committed within the United States, that “appear to be intended (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by assassination or kidnapping,” and that occur outside of the United States or “transcend national boundaries.”33 In two reported cases, courts have upheld jurisdiction under this provision over claims of terrorism filed by relatives of U.S. citizens killed in Israel.34
Civil Litigation and Rogue States
Each of these statutes has been used primarily against individuals, associations and corporations, not states. These uses reflect the impact of U.S. Foreign Sovereign Immunities Act, which affords foreign states immunity from suit unless a claim falls within a list of enumerated exceptions.35 The broadest exceptions permit suit for torts committed within the United States and for certain commercial matters. In an important limitation, the Supreme Court held that ATCA claims do not create an automatic exception to the statutory definition of foreign sovereign immunity; that is, such suits are not permitted unless they fall within one of the standard statutory exceptions.36
The English courts have reached a similar conclusion, protecting the sovereign immunity of the government of Kuwait in a suit alleging responsibility for torture.37 This decision was recently upheld by the European Court of Human Rights in a 9-8 decision finding that the grant of immunity did not violate the European Convention’s guarantee of a right of access to the courts.38 The dissenters argued that all governments have an international law obligation to provide access to their courts to adjudicate claims of torture, an obligation that cannot be evaded by the application of domestic law statutory immunities.
Litigation against sovereign states may be possible where the defendant government is not recognized by the United States: the FSIA does not apply if the United States government does not support the defendant’s claim to be a sovereign state. A lawsuit against the Taliban, for example, might have been possible despite the FSIA, given that neither the United States nor the United Nations recognized the Taliban as the government of Afghanistan.
In addition, a 1996 amendment to the FSIA permits civil suits for torture, extrajudicial killing and other abuses against a small group of foreign governments.39 The new exception permits suits by U.S. citizens when the defendant government has been designated by the U.S. government as a “state sponsor of terrorism.”40 The State Department has designated seven such countries,41 and judgments have been issued pursuant to the statute against both Cuba and Iran.42 The statute renders some abusive regimes subject to suit for human rights abuses, an important goal, but it does so through non-uniform standards, setting the United States as the sole arbiter of which governments should be held accountable and which should benefit from immunity.
Accountability for human rights violations, including terrorism, whether committed by individuals, associations, corporations or governments, is essential to our future well-being. The horrors of September 11th brought that truth home to those of us living in the United States. But many people in many parts of the world have lived with the terror of state-sponsored human rights violations and state-sponsored terrorism, as well as the abuses of non-state fanatics. If our campaign to rid the world of terrorism truly includes them and the crimes directed against them, we will have contributed to a revolutionary advance towards reducing such atrocities. If we limit our focus to the abuses that endanger ourselves, we both abandon our sisters and brothers around the world and doom our efforts to failure. In the battle against terrorism, partial solutions are no solutions at all.