Friday, June 27, 2008

Read On! The Definitive Filártiga

(Read On! ... occasional posts on writing we're reading)

Every once in awhile, a case comes along that changes everything. Filártiga v. Peña-Irala (2d. Cir. 1980) was one of those cases. The Filártiga plaintiffs made an audacious assertion: that Paraguayan victims of human rights violations could bring suit in a U.S. federal court against a Paraguayan perpetrator for acts of torture and extrajudicial killing committed in violation of international law in Paraguay. (Plaintiffs were the sister and father of Joelito Filártiga, below left). The case established many firsts: that the Alien Tort Statute supports assertions of extraterritorial jurisdiction, that long articulated but rarely enforced human rights norms are justiciable, that the individual is front and center in international law as victim and perpetrator, and that ensuring a robust system of accountability is consistent with the interests of the United States. Filártiga empowered hundreds of additional victims to mobilize the U.S. legal system against human rights abusers who would otherwise find safe haven in the United States. Before Guantánamo and its repercussions, the United States boasted the most vibrant system of civil domestic human rights enforcement in the world. Professor William Aceves’s engaging new volume, The Anatomy of Torture: A Documentary History of Filártiga v. Peña-Irala (2007), tells the story of how we got here through a rich account of the Filártiga case and its progeny. (A fuller review is forthcoming in Human Rights Quarterly).

Aceves’s project joins the “law stories” movement in legal pedagogy exemplified by Foundation Press’s excellent series of course supplements. (Indeed, the Filártiga case is also featured in Foundation’s equally great Law Stories text on international law, in a chapter by Yale Law Dean Harold Hongju Koh: "Filártiga v. Peña-Irala: Judicial Internalization into Domestic Law of the Customary International Law Norm Against Torture" in International Law Stories (John E. Noyes et al. eds. 2007)). Aceves offers a definitive account of Filártiga’s procedural history—with an emphasis on the pleadings, defensive strategies, choice of law questions, the applicability of the “political” defenses (act of state, political question), legal and administrative remedies, appellate practice, and methods of enforcement. This exhaustive treatment of a single case provides a valuable window into the transnational legal process.

Yet, Aceves’s volume is more than a stereoscopic treatment of a single case and its impact. The text also includes a fascinating and exhaustive documentary history compiled from a variety of governmental and non-governmental sources within the United States and Paraguay. The mix of legal and political artifacts—complete with pleadings and opinions, embassy cable traffic, and transcripts of key hearings—enables a more complete understanding of the litigation process from pre-filing investigation to final judgment and all the hurdles in between. Indeed, Aceves was able to uncover intriguing information about the case that is not at all part of the official record from a variety of sources, including through recourse to the Freedom of Information Act. (The drawings below are by Dr. Joel Filártiga, one of the plaintiffs and also an accomplished artist).
Aceves’s book offers a compelling read for anyone interested in international human rights and their enforcement. With its more technical emphasis on the evolution of legal doctrines essential to ATS litigation, the book is geared more toward lawyers, academics, and students than toward laypersons. (A more dramatized account of the case is provided by Richard Alan White, Breaking Silence: The Case that Changed the Face of Human Rights (2004). White was a friend of the Filártigas who spent time with the family in the immediate aftermath of Joelito’s death. HBO produced a docudrama on the case entitled One Man’s War (1991), in which Anthony Hopkins plays Dr. Filártiga (left)). For the legal community, the book will undoubtedly serve many purposes. For one, its discussion of key precedents provides essential reading and an invaluable reference tool for practitioners of ATS litigation. From the perspective of legal pedagogy, the book has the potential to be a wonderful teaching tool for courses on the international legal process, transnational civil procedure, and human rights theory and practice. For students enrolled in law school human rights clinics, the book will provide a great introduction to the ebb and flow of human rights litigation.

The author (right) is uniquely well suited to undertake this study of transnational human rights litigation. Aceves teaches international human rights, foreign affairs law, and civil procedure at California Western School of Law, where he serves as the Director of the School’s International Legal Studies Program. In addition to his scholarly pursuits in these areas, Aceves has participated actively in a number of cases in the Filártiga tradition as litigation advisor and “friend of the court.” Aceves is also on the board of the Center for Justice & Accountability, one of the primary human rights organizations devoted to ATS litigation, and works regularly with Amnesty International. Given his insider’s perspective, it is no surprise that his book is a definitive account of this seminal case and its impact.

A fascinating chapter of this procedural story concerns the role of the Carter Administration, which eventually filed an amicus curiae brief in the case at the invitation of the Second Circuit. (Plaintiffs appealed the district court’s dismissal of the case on the ground that international law did not regulate the interactions between individuals within a single state, even when state action was involved). Aceves’s book provides a rare “behind the scenes” look at some of the inter-departmental and inter-branch negotiations between the Department of Justice, the Solicitor General, the Department of State, members of Congress, and even plaintiffs' counsel that preceded the filing of the brief. The final brief soundly rejected the district court’s approach to international law by confirming that the universal and fundamental prohibition against torture protected individuals from their own governments. A key feature of the brief is its dynamic view of the evolution of international law and the cognizability of customary international law. The brief confirmed that where a norm is well-established, such as the prohibition against torture, there is little concern that its private enforcement would undermine U.S. foreign policy interests. Rather, the brief opined, the failure to recognize a cause of action for acts of torture might undermine the credibility of this nation’s commitment to international human rights and its ability to exert influence on states with poor human rights records.

These are stirring ideas in the current climate, which has witnessed the re-emergence of a debate about the legality, propriety, and utility of torture and cruel treatment as means of interrogation; has occasioned government lawyers drafting legal memoranda that provide a blueprint for insulating U.S. officials from legal responsibility for unlawful interrogation techniques; and has resulted in the bipartisan passage of legislation stripping the courts of jurisdiction over claims by individuals who allege that they have been mistreated by agents of the U.S. government. The Carter Administration’s brief, with its unalloyed support for accountability and the civil enforcement of international human rights norms, is a striking contrast to official positions taken by the Bush Administration in the war on terror and in current ATS litigation.

The Second Circuit’s landmark opinion bespeaks a more hopeful and self-assured time. It is indeed startling to revisit this case in this historical moment. The United States, once a beacon of human rights values, is now subject to worldwide criticism for having turned its back on the human rights edifice. Likewise, its credibility as a champion of human rights worldwide and its ability to exercise global leadership on this score have been indelibly stained. In these unfortunate times of moral relativism, it is instructive to recall the uncompromising words issued by the Second Circuit in reinstating the Filártiga case:

In the twentieth century the international community has come to recognize the common danger posed by the flagrant disregard of basic human rights and particularly the right to be free from torture. … In the modern age, humanitarian and practical considerations have combined to lead the nations of the world to recognize that respect for fundamental human rights is in their individual and collective interest. Among the rights universally proclaimed by all nations … is the right to be free from physical torture. Indeed, … the torturer has become like the pirate and the slave trader before him hostis humani generis, an enemy of all mankind.
These words—while somewhat muffled by the discourse of the day—still ring true and must be reaffirmed.

1 comment:

Arlene Tresmanio said...

There hasn’t been a definitive ruling on the status of CIL in the US legal system, but two important cases imply that CIL is on equal footing with US federal common law. That means that CIL is slightly less important than treaty law or federal statutory law, Federal Statutory Law: Federal law passed by the US Congress. but is still superior to state and local law.

The World Court (the International Court of Justice or ICJ) World Court (the International Court of Justice or ICJ): Established in 1945, the court was empowered to render judgments in disputes between states that voluntarily submitted to it. sits in The Hague, Netherlands, and hears cases between states. The basic rules of the World Court contain the core facts about international law.

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