The Torture Victims Protection Act

In March 1992, the U.S. adopted the Torture Victims Protection Act (TVPA) that provides a civil action for money damages by an “individual” who has been subjected to “torture” against an “individual, who, under actual or apparent authority, or color of law, of any foreign nation” committed the torture. (Emphasis added.) The Act also provides a similar civil action for money damages by an “individual’s legal representative” for “extrajudicial killing” against an “individual, who, under actual or apparent authority, or color of law, of any foreign nation” committed the extrajudicial killing. (Emphasis added.)[1]

The TVPA provides definitions for this purpose of “torture” and “extrajudicial killing.”[2]

The House of Representatives committee report on the TVPA states that it provides a federal cause of action and that torture and summary execution are now banned by customary international law. With respect to torture, the report cited the Filartiga case that allowed a suit against a torturer under the Alien Tort Statute (ATS) and that had met with general approval.[3] But still torture occurs, the report continued. “Judicial protection against flagrant human rights violations are often least effective in those countries where such abuses are most prevalent.“ The TVPA establishes an “unambiguous and modern basis for cause of action that has been maintained under the . . . [ATS]. [The ATS] has other important uses and should not be replaced.” For torture there should be “a clear and specific remedy, not limited to aliens.” Torture and summary executions are not only abuses covered by ATS. “That statute should remain intact to permit suits based on other norms that already exist or may ripen in the future into rules of customary international law.” [4]

Another reason for the TVPA, the House committee report notes, was the U.S. obligation under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to provide measures to hold torturers legally accountable.[5]

The TVPA was signed by President George H. W. Bush on March 12, 1992, and in a signing statement, he said that the U.S. has a strong commitment to advancing respect for and protection of human rights throughout the world. He, however, was concerned that U.S. courts might become embroiled in difficult and sensitive disputes in other countries and possibly ill-founded or politically-motivated suits. Such potential abuse of this statute undoubtedly would give rise to serious friction in international relations and would also be a waste of our limited and already overburdened judicial resources.” The President hoped that U.S. courts will be able to avoid these dangers by sound construction of the statute and the wise application of relevant legal procedures and principles. The President said that he understands that the TVPA “does not permit suits for alleged human rights violations in the context of United States military operations or law enforcement actions.” The Act, the President added, talks of “actual or apparent authority, or color of law, of any foreign nation.”  (Emphasis added.)[6]

The TVPA provides two potential affirmative defenses.

One is the plaintiff’s failure to exhaust “adequate and available remedies” where the conduct occurred. For this defense the courts have concluded that the defendant bears the burden of proof and persuasion with the plaintiff potentially rebutting any such proof by showing that the local remedies were ineffective, unavailable, unduly prolonged, inadequate or obviously futile.[7]

The other affirmative defense expressed in the TVPA is a 10-year statute of limitations. This limitation, however, can be suspended by the courts under an equitable doctrine.[8]

Under that statute, U.S. federal courts have held that actions ranging from prolonged arbitrary arrest to extrajudicial killings constitute “torture.”  For example, gratuitous, punitive or coercive electric shocking of a pretrial detainee is “torture” as is electric shocking of soles of feet, hanging a person upside down during interrogation and anally assaulting a person with a coke bottle.[9]

Cases under the TVPA in the lower federal courts have held that (a) the requirement for a defendant’s acting under “actual or apparent authority, or color of law” should be interpreted using the existing body of law under federal civil rights litigation (42 U.S.C. § 1983); (b) the TVPA could be applied to people acting under the authority of de facto states; (c) the TVPA could be applied retroactively; and (d) U.S. officials are not subject to TVPA claims because of the statute’s requirement that a defendant act under color of foreign law.[10] There is a split of authority on whether the TVPA replaces the ATS for claims for torture or extrajudicial killing.[11]

Another issue confronted by the lower courts and now before the U.S. Supreme Court is whether a corporation can be sued under the TVPA as an “individual, who, under actual or apparent authority, or color of law, of any foreign nation” committed torture or extrajudicial killing.[12]

Although as a human rights advocate I hope that the Court will decide that a corporation is an “individual” within the meaning of the statute, I think that is an unlikely result. The word “individual” in ordinary and legal language usually means a human being whereas the word “person” usually means a human being or a legal entity like a corporation. Moreover, the statute uses the word “individual” twice in the same section to refer to the victim of the torture (obviously a human being) and to the defendant who committed the torture; it would be unreasonable, in my opinion, to have different meanings of the same word in such close proximity unless the statute expressly so provided. Moreover, the House Committee Report on the TVPA said, “Only ‘individuals,’ not foreign states, can be sued under the bill.”[13]