U.S. Circuit Court’s 1980 Decision Validates Use of Alien Tort Statute To Hold Foreign Human Rights Violators Accountable

The U.S. Alien Tort Statute (ATS) was originally enacted in 1789 and was virtually unused through 1979.[1] This changed in 1980 when the U.S. Court of Appeals for the Second Circuit in New York City decided a case, Filartiga v. Pena-Irala.[2]

The facts giving rise to the case arose in Paraguay in 1976. Dr. Joel Filartiga was well-known in his country as a physician, painter and opponent of his country’s dictator, General Alfredo Stroessner. In March of that year, Filartiga’s 17-year-old son Joelito was kidnapped, tortured and killed. In the middle of the night of the abduction, Joelito’s sister, Dolly, was forced out of the house to go view the mutilated body of her brother. All of these horrendous acts allegedly were committed by Americo Norberto Pena-Irala, who was a police official in the city where the Filartiga family lived.[3]

In 1978 Dolly Filartiga, who was living in New York City, learned that Pena-Irala also was in the City. With the assistance of the Center for Constitutional Rights[4] she commenced a civil lawsuit for money damages under the ATS in U.S. federal court on behalf of herself and her father against Pena-Irala. The complaint alleged that as a police inspector general in Paraguay he had kidnapped and tortured to death Joelito Filartiga in violation of international law.[5] The district court, however,  dismissed the complaint for lack of subject-matter jurisdiction.

On appeal and at the request of the Second Circuit Court of Appeals, the Carter Administration’s Department of Justice advised the court that the universal and fundamental prohibition against torture protected individuals from their own governments, that enforcement of this norm in cases under the ATS would not undermine U.S. foreign policy interests and that failure to entertain such cases could undermine U.S. credibility regarding international human rights and our ability to influence states with poor human rights records.[6]

Later the Second Circuit reversed and remanded the case for further proceedings. The Second Circuit held that “an act of torture committed by a state official against one held in detention violates established norms of the international law of human rights, and hence the law of nations.” As a result, the complaint had a proper basis for federal jurisdiction under the ATS.[7]

On remand, the defendant (Pena-Irala) took no further part in the case and thus defaulted. The district court then entered judgment against him and in favor of the father for $5,210,364 and in favor of the sister for $5,175,000.[8]

This case established many firsts. The ATS supports assertions of extraterritorial jurisdiction over events happening in other countries. International human rights norms are justiciable, i.e., they can be adjudicated by U.S. federal courts. The individual as victim and perpetrator is a proper subject of international law. A robust system of accountability for foreign human rights violations under the ATS is consistent with the national interest of the U.S.[9]

Thereafter for the next 25 years Filartiga was followed by other lower federal courts without any guidance from the U.S. Supreme Court, which will be the subject of another post.