This page intentionally left blank P1: SBT CUUS178-FM cuus178 April 11, 2008 978 521 87817 JUSTICE ACROSS BORDERS This book studies the struggle to enforce international human rights law in U.S federal courts In 1980, a federal appeals court ruled that a Paraguayan family could sue a Paraguayan official under the Alien Tort Statute, a dormant provision of the 1789 Judiciary Act, for torture committed in Paraguay Since then, courts have been wrestling with this step toward a universal approach to human rights law The book examines attempts by human rights groups to use the law to enforce human rights norms It explains the separation-of-powers issues that arise when victims sue the United States or when the United States intervenes to urge dismissal of a claim Moreover, it analyzes the controversies arising from attempts to hold foreign nations, foreign officials, and corporations liable under international human rights law Although Davis’s analysis is driven by social science methods, its foundation is the dramatic human story from which these cases arise Jeffrey Davis has taught constitutional law, comparative law, and judicial politics courses for more than six years and has won several teaching awards He has published articles on human rights accountability, judicial decision making, and judicial fairness in several journals In addition, Professor Davis has conducted research and analysis on a volunteer basis for two international human rights organizations Before beginning his academic career, Professor Davis practiced law as a state Assistant Attorney General, as an attorney for the Atlanta School Board, and as the Legal Aide to the Speaker of the Georgia House of Representatives i 20:38 P1: SBT CUUS178-FM cuus178 April 11, 2008 978 521 87817 ii 20:38 P1: SBT CUUS178-FM cuus178 April 11, 2008 978 521 87817 Justice Across Borders THE STRUGGLE FOR HUMAN RIGHTS IN U.S COURTS Jeffrey Davis University of Maryland, Baltimore County iii 20:38 CAMBRIDGE UNIVERSITY PRESS Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo Cambridge University Press The Edinburgh Building, Cambridge CB2 8RU, UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9780521878173 © Jeffrey Davis 2008 This publication is in copyright Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press First published in print format 2008 ISBN-13 978-0-511-40987-5 eBook (NetLibrary) ISBN-13 978-0-521-87817-3 hardback ISBN-13 978-0-521-70240-9 paperback Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate P1: SBT CUUS178-FM cuus178 April 11, 2008 978 521 87817 In loving memory of my mother Barbara A Davis v 20:38 P1: SBT CUUS178-FM cuus178 April 11, 2008 978 521 87817 vi 20:38 P1: SBT CUUS178-FM cuus178 978 521 87817 April 11, 2008 Contents Acknowledgments page xi The Seeds of Legal Accountability The Reach of Justice – Romagoza v Garcia Origins of Human Rights Law Nuremberg – The Roots of Judicial Enforcement Embracing Legal Accountability Nuremberg and National Sovereignty Head of State Immunity International Law and Human Rights Indirect and Private Liability Accountability ´ ˜ The First ATS Human Rights Case – Filartiga v Pena-Irala 1 10 12 13 14 17 Competing Forces in the Struggle for Accountability: An Overview of the Issues Entangling ATS Litigation Tel Oren v Libya The Supreme Court Speaks – Sosa v Alvarez-Machain History of the ATS Facilitating a Cause of Action The Law of Nations and Federal Common Law Allowing Causes of Action under the ATS Separation of Powers Extraterritorial Jurisdiction State Sovereignty Private Liability Theoretical Framework 23 23 24 26 27 29 33 35 37 40 41 42 Human Rights Entrepreneurs: NGOs and the ATS Revolution Doe v Saravia 44 44 vii 20:38 P1: SBT CUUS178-FM viii cuus178 April 11, 2008 978 521 87817 CONTENTS The Role of NGOs in Human Rights Litigation in U.S Courts Starting the ATS Revolution Legal Innovation Private Defendants Command Responsibility Extending the Reach of the ATS to More Violations Pushing the Broader Human Rights Agenda through ATS Cases Universal Jurisdiction Addressing U.S Foreign Policy Facilitating Impact in the Community and at Home Success of NGOs in ATS Litigation Relationships with Clients Human Rights Network Expertise Selectivity Work with Private Firms Conclusion Separation of Powers and Human Rights Cases Cases against the United States Sovereign Immunity in Cases against the U.S Government The Political Question Doctrine State Secrets Defense Challenging the Doctrine of Deference The Military Commissions Act of 2006 U.S Involvement in Human Rights Cases against Other Defendants An Example of Executive Branch Intervention – Sarei v Rio Tinto Before the Federal Court for the Central District of California Standard for Reviewing Executive Branch Submission Before the Ninth Circuit Court of Appeals Analyzing Executive Branch Involvement The Carter Administration The Reagan Administration The George H W Bush Administration The Clinton Administration The George W Bush Administration A New Administration and a New Approach – The Unocal Case Motivations for the Bush Administration Approach 50 52 55 56 58 61 64 64 66 68 71 76 79 84 85 87 87 89 89 91 99 102 103 106 107 107 109 109 110 113 118 120 122 122 124 125 127 20:38 P1: JZP CUUS178-08 cuus178 IMPACTS 978 521 87817 April 10, 2008 289 going to be known more broadly.” “Whereas when we say that we’re doing a case against Nicolas Carranza every Salvadoran you talk to knows who that is,” Eisenbrandt explained, “so in terms of having the support from the community and what they see as important, those are the cases they’re interested in.”66 The wider impact of these cases is especially obvious in class action suits or suits with a group of plaintiffs As Green explained, “The good part of a class action or a group action the sense that some people are speaking for others can be really important.”67 The group of Burmese plaintiffs in Unocal worked to use their settlement to have a positive impact on their communities ERI’s Redford pointed out, “most of them – if not all – are doing things for their villages, their new communities One is starting a bible school, another is putting in a water pump in his old village in Burma.”68 ERI’s Richard Herz continued, “One of the things that was noted in the settlement announcement is that there will be humanitarian relief So there’s the immediate impact on the plaintiffs and there’s the long term impact of the humanitarian programs.”69 Each NGO working on these cases has an education and outreach component of its operation They complement litigation with education and outreach campaigns to enhance the impact of the case “It’s important to keep focused on that and we’re trying to increase the educational campaigns around that case,” Green stated She pointed out that “We have to get the word out about what’s happening for it to have the maximum impact.” The education and outreach campaigns are usually multilayered to target various audiences “We have both communications people and education and outreach people,” Green explained, “some people are specifically focused on the press and some others are focused on coordinating with other activist groups.”70 Merchant asserted that building the human rights network necessary to bring ATS cases was a positive impact of their efforts She described the networks as consisting of “torture treatment people plaintiffs and their family members in-country groups the country experts the former government employees and officials the pro-bono law firms.” “You create this community of people around justice, around the trial and around telling a story,” she stated, “[and] bringing that group together is an impact right there.” “We have created a community of people who work together,” Eisenbrandt interview, July 17, 2006 Green interview, August 7, 2006 68 Redford, interview, October 3, 2006 69 Richard Herz (Attorney, Earth Rights International), Interview with the Author, October 3, 2006 70 Green interview, August 7, 2006 66 67 17:45 P1: JZP CUUS178-08 cuus178 290 978 521 87817 April 10, 2008 IMPACTS AND CONCLUSION she explained, “We’re providing a place where refugee communities in this country can focus and start organizing.”71 In an unprecedented example of impact on the nation from which an ATS suit arose, ATS lawyers have been asked to assist Honduras in developing a system for trying those who violate human rights law As I discussed in Chapter 3, after the Grijalba case, CJA attorneys were invited to Honduras to share their expertise Almudena Bernabeu visited and began developing a curriculum for helping Honduran legal officials tackle the many obstacles in human rights litigation A senior Justice Department lawyer spoke of another broad impact of these cases In several cases, Holocaust survivors sued German banks, insurance companies, and other businesses for their involvement with the Nazi regime This DOJ lawyer pointed out that “Because of that litigation the Germans were interested in something that could be done to kind of get rid of all the litigation.” He stated that at first, “They were adamant that they weren’t going to enter into a settlement pursuant to the authority of the courts.” However, “eventually there was an agreement where the Germans passed a law funding this great foundation” that compensated Holocaust victims.72 The result did not satisfy many of the victims filing these cases, but it demonstrates that these cases can cause concrete efforts to address human rights violations While many of these activists agree that civil suits in a far-off land are not the ideal mechanism to achieve human rights accountability, this very approach has its advantages Peter Weiss argued that on occasion the civil approach is superior to criminal prosecutions Weiss pointed out that there are strong political disincentives to prosecuting cases, such as the criminal action against former U.S Secretary of Defense Donald Rumsfeld in Germany “It’s true that in the continental law system the victim has some standing in a criminal prosecution,” Weiss explained, “but it’s never enough to counter a directive from a foreign minister or president saying drop the case.” He argued, “It’s all political and the people who are the victims have no way to assert their rights Whereas in the ATS approach the victims are in charge.”73 Criminal actions are especially difficult in postconflict nations in which there is a risk that the oppressive regime will return A senior Justice Department lawyer described how difficult it is to seek justice in these situations “If you go too far you risk this tight rope that was being walked there and Merchant interview, July 18, 2006 Senior U.S Department of Justice lawyer (wishing to remain anonymous), Interview with the Author, January 23, 2007 73 Weiss interview, February 12, 2007 71 72 17:45 P1: JZP CUUS178-08 cuus178 IMPACTS 978 521 87817 April 10, 2008 291 maybe the military would come back,” he explained.74 In these nations, there is the fear that “if you reopen this too far they’re going to slam down this democracy and we’re all going to go to jail so we’ve got to walk this tight rope.”75 By bringing these cases in the United States, victims can seek justice without this danger A civil action also has the advantage of requiring discovery When asked how they manage to gather evidence that Unocal knew of the human rights violations committed by the Burmese military, ERI lawyers pointed to the ordinary process of civil discovery Richard Herz explained that the damning evidence was “in their documents We deposed their guys It’s the ordinary course of discovery We got the e-mail where the Unocal guy says to the Total guy ‘we have no responsibility to control what the military does We have our area of responsibility and they have theirs – let’s just admit there’s a grey area.’”76 CJA’s case against El Salvador’s former vice-minister of Defense, Nicolas Carranza, is another apt example Carranza had always denied that the CIA paid him while he was in power in El Salvador However, during the deposition in his case, plaintiffs’ lawyers asked him, whether he had “ever taken any money from the CIA?” Carranza “pauses for a second and says ‘I’m going to tell you something I haven’t even told my own wife.’” Eisenbrandt remembered, “he says ‘yes, I did take money from the U.S government.’ And he basically explained that he was finally, after all these years of denying it, that he was admitting to it because he was under oath.”77 ATS cases are an important part of the global movement to enforce international human rights standards Stephens concluded that ATS “lawsuits contribute to the worldwide movement for accountability by exposing abuses committed by private individuals, corporations and government officials, and by compensating victims.”78 The cases have helped address one pitfall of human rights enforcement – the lack of clarity on the meaning and enforceability of these norms As Stephens observed, they “also further the development of international human rights norms, helping to clarify and enforce the growing body of international law that prohibits abuses such as genocide, torture, extrajudicial execution, and crimes against humanity.”79 Senior U.S Department of Justice (wishing to remain anonymous), Interview with the Author, January 23, 2007 75 Senior justice interview, January 23, 2007 76 Herz interview, October 3, 2006 77 Eisenbrandt interview, July 17, 2006 78 Beth Stephens, “Upsetting Checks and Balances: The Bush Administration’s Efforts to Limit Human Rights Litigation,” Harvard Human Rights Journal 17 (2004): 169 79 Stephens, “Upsetting Checks,” 169 74 17:45 P1: JZP CUUS178-08 cuus178 978 521 87817 292 April 10, 2008 IMPACTS AND CONCLUSION On Corporations ATS litigation has forced corporations to alter their outlook on human rights law Green argued, “We’re having some impact – the first case came out in 1997 – Unocal, and it has been in the last decade that there’s been increasing interest in the international community about negotiating codes of conduct for businesses.” She pointed out that since Unocal, “Negotiations including double bottom lines [have occurred] – it’s not just profit it’s also are you maintaining basic human rights conditions.” Through the ATS, Green stated, “We now have the capacity to cause some pain in a way that a corporation understands it.” Green also cited another case, “against the translators and interrogators in Abu Ghraib the CACI and Titan cases.” “I think we’ve already had some impact,” she stated, “we filed an amended complaint elaborating on what CACI employees had done and three days later they announced that they were ceasing interrogations.” “So that we took as somewhat of a victory,” Green said.80 One of the plaintiffs’ counsel in Unocal, Richard Herz suggested, “The general impact on corporate behavior is hard to see but it’s there.” “Corporations don’t say ‘we’re changing our policies because we see what happened to Unocal,” Herz explained However, he argued, “I think that Unocal and these other cases have caught enough attention that any corporate counsel worth his salary is going to say wait a second you need to think about this If this happens you’re going to get sued.’”81 CCR’s Peter Weiss agreed He pointed out that after the District Court denied Unocal’s motion to dismiss, “The secretary of the association of corporate counsel wrote an article for the New York law journal saying this is a hugely important precedent and she cautioned all the corporate counsel to start paying attention to all the human rights violations that their companies were involved in.”82 Marco Simons, another ERI lawyer on the Unocal case, agreed, “I think it’s fair to say that over the last 10 or 12 years there has been a fairly significant change in the way western corporations operate in a lot of parts of the world.” He went on, “That’s not to say there aren’t problems anymore but corporations are consulting experts on human rights and training their work force.” Since the Unocal case, Simons explained, “there has been the development and adoption of the Voluntary Protocols on Security and Human Rights While we can’t say that ATS litigation is primarily responsible for this trend it certainly contributed.”83 ERI U.S Director Katharine Redford pointed out one cause, “The media that litigation draws that harms the brand of Green interview, August 7, 2006 Herz interview, October 3, 2006 82 Weiss interview, February 12, 2007 83 Simons interview, October 3, 2006 80 81 17:45 P1: JZP CUUS178-08 cuus178 IMPACTS 978 521 87817 April 10, 2008 293 the corporation.”84 Herz followed up, “It means one more person in the corporation is going to worry about it – now the corporate counsel is going to worry about it.” In her comments, Redford referred to the adoption of “Voluntary Principles on Security and Human Rights” by several corporations on December 20, 2000 The protocols “recognize the importance of the promotion and protection of human rights throughout the world and the constructive role business can play in advancing these goals.” 85 They require corporations to develop “risk assessments” when engaging with foreign security forces These assessments “should consider the available human rights records of public security forces, paramilitaries, local and national law enforcement.” According to the protocols, “Awareness of past abuses and allegations can help Companies to avoid recurrences as well as to promote accountability.” They impose on corporations the duty to use their influence to promote the following principles with public security: (a) individuals credibly implicated in human rights abuses should not provide security services for Companies; (b) force should be used only when strictly necessary and to an extent proportional to the threat; and (c) the rights of individuals should not be violated while exercising the right to exercise freedom of association and peaceful assembly, the right to engage in collective bargaining, or other related rights of Company employees as recognized by the Universal Declaration of Human Rights and the ILO Declaration on Fundamental Principles and Rights at Work.86 Assistant State Department Legal Adviser James Hergen explained that ATS litigation motivated corporations to adopt these principles He stated, “These cases have been a prod.”87 Thomas Niles, former U.S Ambassador, Deputy Assistant Secretary of State, and president of the United States Council for International Business, agreed that ATS cases were “one element” motivating corporations to alter their behavior.88 In 2007, sixteen corporations participated in the State Department’s annual plenary on the Voluntary Principles Of these, seven had been defendants in ATS cases.89 At least some corporate interests saw the importance of the Unocal case at the time it was litigated The en banc stage drew amicus briefs from the second Bush administration, USA Engage, the National Foreign Trade Redford interview, October 3, 2006 “Voluntary Principles on Security and Human Rights, Fact Sheet,” Bureau of Democracy, Human Rights, and Labor, U.S Department of State, December 20, 2000, http://www.state gov/www/global/human_rights/001220_fsdrl_principles.html (Accessed August 11, 2007) 86 “Voluntary Principles.” 87 Hergen interview, November 27, 2006 88 Thomas Niles (President of the United States Council for International Business), Telephone Interview with the Author, June 27, 2007 89 Chevron, ExxonMobil, Freeport McMoRan Copper and Gold, Newmont Mining, Occidental Petroleum, Rio Tinto and Shell 84 85 17:45 P1: JZP CUUS178-08 cuus178 294 978 521 87817 April 10, 2008 IMPACTS AND CONCLUSION Council, the National Association of Manufacturers, The Chamber of Commerce of the United States, the U.S Council for International Business, and the Organization for International Investment The reaction to the Ninth Circuit’s Unocal decision certainly reflects this impact as well As Stephens observed, the decision, “mobilized corporate opposition to the ATCA, making headlines in virtually all of the major financial press.”90 For example, Judge Robert H Bork wrote an editorial for the Wall Street Journal titled “Judicial Imperialism.”91 The Institute for International Economics published a book entitled Awakening Monster: The Alien Tort Statute of 1789 in which it argued that the ATS “could seriously damage the world economy, threatening economic growth and development.” Fortune featured an article titled, “Is This the Next Tort Trap? Using an Ancient Statute, Lawyers Make Business Quake.”92 ERI’s Katharine Redford mentioned this article, “We were called ‘international ambulance chasers’ – that was Forbes magazine.”93 Hergen, stated unequivocally, “Corporate behavior has been modified by these cases – it’s almost undeniable.”94 Niles, who coordinated part of the business community’s response to ATS, acknowledged that these cases have had an impact on foreign investment and international trade He explained that “the experience that companies have had with these cases would be one element in the decision on whether or not to business in a country.” According to Niles, these cases may have encouraged some companies to adopt voluntary measures such as codes of conduct “One of the things you want to avoid is reputational damage,” he explained He went on, “One of the weapons [advocates] use against companies is [the] risk of being held up in court as having been responsible or complicit in human rights abuses.”95 Creating a Historical Record One of the most important functions of legal human rights accountability is the creation of a historical record 96 For example, human rights scholar, Ruti Teitel, asserted, “establishing knowledge of past actions committed Stephens, “Upsetting Checks,” 178 Robert H Bork, “Judicial Imperialism,” Wall Street Journal, June 17, 2003, 2; see also “Corporate Ethics: Big Oil’s Dirty Secrets,” Economist, May 10, 2003, 53; Patti Waldmeir, “US Courts Should Not Punish Companies for Human Rights Violations Committed Overseas,” Financial Times, March 14, 2003 92 Cait Murphy, “Is This the Next Tort Trap? Using an Ancient Statute, Lawyers Make Business Quake,” Fortune, June 23, 2003, Sec 1, 30 93 Redford interview, October 3, 2006 94 Hergen interview, November 27, 2006 95 Niles interview, June 27, 2007 96 Jeffrey Davis and Edward H Warner, “Reaching beyond the State: Judicial Independence, the Inter-American Court of Human Rights and Accountability in Guatemala,” Journal of Human Rights 6, no (2007) 90 91 17:45 P1: JZP CUUS178-08 cuus178 IMPACTS 978 521 87817 April 10, 2008 295 under color of law and its public construction as wrongdoing is the necessary threshold to prospective normative uses of the law.”97 Stephens pointed out that “civil litigation may lead to a full investigation of the facts of an incident.”98 Victims of violations not only suffer the wounds inflicted but also from the systematic denial by those responsible Speaking of the plaintiffs in the Romagoza case, Eisenbrandt stated, “The first thing is they got to tell the world their story – to tell the world what happened.”99 Merchant explained, “When we have a case, we create this body, this record of public information that the public can use Then the other NGOs that the reporting and witnessing can use it That’s another thing that’s very useful – to walk away from these cases and have on file a deposition of General Vides Casanova for instance.”100 Civil litigation is an especially effective method of uncovering this truth because of compulsory discovery Richard Herz, counsel for ERI, explained that in the ATS case against Chevron “Chevron has very detailed records of every time they paid the Nigerian military and we can match up the units that they paid to the units that attacked the villages where are plaintiffs are from.” “And that’s the kind of thing you’re only going to get through litigation,” Herz explained.101 Eisenbrandt outlined the importance of establishing a historical record in the Romero case The defendant, Saravia, fled so the plaintiff sought a default judgment “Normally, when you get a default the facts in the complaint are taken as true and you don’t have to prove your case,” Eisenbrandt explained “You just put on your testimony about damages and that’s that.” “But we knew,” he said, “that this was an historic opportunity – this case had never been in court before So we decided that yes we need to show damages but we also want to put as much on the historical record as we can.”102 The ERI attorneys also emphasized the importance of creating a historical record With regard to the plaintiffs in Unocal, Herz stated, “one of the reasons these people became involved and stuck with it for nine years was that they wanted their story told – and it was.”103 Redford added, “They wanted something to vindicate the truth because Unocal had been saying publicly all along that these stories you hear about slave labor in Burma are lies and that there are political people telling these lies for political reasons.” “For them, just having a court say this is what the evidence shows was huge Ruti Teitel, “Transitional Jurisprudence: The Role of Law in Political Transformation,” Yale Law Journal 106, no 2009 (1997): 2050–2051 98 Stephens, “Translating Filartiga,” 14 ´ 99 Eisenbrandt interview, July 17, 2006 100 Merchant interview, July 18, 2006 101 Herz interview, October 3, 2006 102 Eisenbrandt interview, July 17, 2006 103 Herz interview, October 3, 2006 97 17:45 P1: JZP CUUS178-08 296 cuus178 978 521 87817 April 10, 2008 IMPACTS AND CONCLUSION for them – that was more justice than any of the rest,” she explained, “These people are telling the truth They are no longer suffering in silence.”104 When asked to respond to the critique that ATS cases are just public relations vehicles for NGOs, CCR’s Peter Weiss cited their success in creating a historical record He stated, “In a case like the Karadzic case or the Pinochet case they call it PR, we call it exposing the facts – it’s a contribution to history.” “When you bring a case you really have to thoroughly research the facts in such a way that the evidence will stand up in court,” Weiss explained, “I would say that’s objective number one.”105 Punishing Those Responsible Although ATS cases are civil and not criminal, one of their purposes is to provide a measure of accountability for those responsible for atrocities Juan Carlos Cristales, director of Rescate in Los Angeles, commented on the effect of CJA’s El Salvador cases “Impunity among the elite in El Salvador,” Cristales explained, “is closely linked to privilege, and survivors are well aware that the last stage of impunity is usually when a military officer comes to the U.S to retire, get health care, send his kids to good schools after overseeing massive atrocities.”106 He argued, “Simply to disrupt the generals’ ability to this is a victory.” CCR’s Weiss emphasized this purpose and pointed out that they achieve accountability in slightly unconventional ways He described a case against the former Guatemalan Minister of Defense, Xuncax v Gramajo (discussed in Chapter 3), “When we brought the case against the Guatemalan minister of defense, Gramajo, we served him as he stepped up to the platform to get his degree from the Kennedy School,” Weiss recalled, “he was the leading candidate for the presidency of Guatemala at the time and that finished him.” Weiss also commented on CCR’s efforts to hold senior Bush administration officials responsible for torture committed in Iraq, Afghanistan, and Guantanamo Bay In addition ´ to civil cases in the United States, CCR also pursued a criminal case against former Secretary of Defense Donald Rumsfeld in Germany According to Weiss, “We had the press conference in Berlin, somebody asked me ‘do you really expect Rumsfeld to go to jail?’” “I said well I know he belongs in jail but I don’t really expect him to go to jail at this time,” he recalled, “but I’d be satisfied if he lives out the rest of his life in shame – just like Pinochet – if he goes from being this revered person to being somebody whose moral deficiencies have been exposed.”107 Redford interview, October 3, 2006 Weiss interview, February 12, 2007 106 Center for Justice and Accountability, “Project Abstract: Assessing the Impact of CJA’s El Salvador Litigation,” June 1, 2006 107 Weiss interview, February 12, 2007 104 105 17:45 P1: JZP CUUS178-08 cuus178 978 521 87817 CONCLUSION April 10, 2008 297 ATS cases have encouraged further efforts for accountability Eisenbrandt recalled, “With the Romagoza case – that gave courage to Salvadorans to come forward with these other cases.”108 “It was basically saying you can this,” Eisenbrandt explained, “you’ve got three courageous Salvadorans here putting their names on the papers, you can it too.”109 CONCLUSION Human rights scholar, Martha Minow wrote: Closure is not possible Even if it were, any closure would insult those whose lives are forever ruptured Even to speak, to grope for words to describe the horrific events, is to pretend to negate their unspeakable qualities and effects Yet silence is also an unacceptable offense, a shocking implication that the perpetrators in fact succeeded, a stunning indictment that the present audience is simply the current incarnation of the silent bystanders complicit with oppressive regimes.110 To reject complicity, therefore, victims and human rights advocates struggle for justice in whatever incarnation they can attain it Civil litigation, based on a 200-year-old statute, is a peculiar vehicle to obtain justice, but it does transport victims from stubborn impunity to some chance at vindication Zenaida Velasquez asserted that the ATS case helped her “realize the ´ dream shared by the families of the disappeared and tortured people everywhere – that cases addressing crimes against humanity will be heard in any court, in any nation, and at any time.” She recognized, however, that the Grijalba case, was just one step, “We are motivated by love for the ones we lost, and also by a voice of conscience that says we must everything in our power to stop the cycle of impunity that leads to more human rights abuses We are vindicating the memories of our family members We can’t give up.”111 Juan Romagoza reflected on his case “I’ve exposed the generals, and was able to look them in the face when the truth was being told about all the crimes that were committed Now they’re in the hands of justice, maybe they never thought that they would face justice.”112 Eisenbrandt interview, July 17, 2006 Eisenbrandt interview, July 17, 2006 110 Minow, Martha, Between Vengeance and Forgiveness (Boston: Beacon Press, 1998) 111 Velasquez statement (see note 31) ´ 112 Juan Romagoza Arce, “Reflections on the Verdict,” http://www.cja.org/forSurvivors/ reflect.doc (Accessed September 12, 2007) 108 109 17:45 P1: JZP CUUS178-IND cuus178 978 521 87817 April 5, 2008 Index ABCDEF v Zemin, 154–155, 189 immunity, 190–191 Abdullah v Pfizer, 229 Abiola v Abubakar, 141, 161, 181–182 act of state, 194 Abiola, Hafsat, 181 Abiola, M.K.O., 181 Abu Ghraib, 97, 222 act of state doctrine, 121, 130, 193, 194, 195, 196, 202, 248, 249, 257, 261, 279 Adra v Clift, 27 Aduma v Pfizer, 229 Agent Orange Litigation, 152, 244, 278, 281 aiding and abetting, 214–216 foreign policy, 158–159 international law violations, 229–230 Aguinda v Texaco, 179–180 Aldana v Del Monte, 225 Al-Harith, Jamal, 89 Alien Tort Claims Act See Alien Tort Statute Alien Tort Statute, 1, 18 history of text, 26 statute of limitations, 166–167 text, 18 Alvarado, Daniel, 164 Amerada Hess Case See Argentine Republic v Amerada Hess American Civil Liberties Union, 98 Argentine Republic v Amerada Hess, 121 Arias v Dyncorp, 220–221 international law violations, 230–231 Aristide, President Jean-Bertrand, 266 Arndt v UBS, 233 Baker v Carr, 100, 132 Bancoult v McNamara, 241–243 Barkett, Judge Rosemary, 61 Beanal v Freeport, 228–229 Belhas v Ya’alon, 192 Bernabeu, Almudena, 70, 73, 255, 284, 290 client contact, 77 Blackwater Case, 68 Bolchos v Darrell, 26–27 Bork, Judge Robert H., 23, 24, 36, 244, 294 Bowoto v Chevron, 218–220 Bradford, William, 27, 216 Brennan, Justice William, 99 Breyer, Justice Stephen, 29, 30, 35, 39, 41, 42, 196, 197 Bridgestone-Firestone See Roe v Bridgestone Burgess, Judge Franklin D., 220 Bybee, Judge Jay S., 240 Cabello v Larios, 199 Cabiri v Assasie-Gyimah, 249 Cabranes, Judge Jos´e A., 227 CACI Corporation See Ibrahim v Titan, 222 Calderon, Jose, 165 Calderon, Juan Francisco, 165 Carranza, Nicolas,164, 289, 291 Center for Constitutional Rights, 52, 61, 64, 65, 77, 78, 80, 83, 85, 86, 105, 118, 141, 174, 188, 216, 241, 254, 261, 275, 285, 292, 296 ´ bringing Filartiga, 18–21, 52–55 command responsibility, 58–59 crimes against women, 61–63 Doe v Constant, 274 Doe v Unocal, 57, 204 forced exile, 63 299 15:57 P1: JZP CUUS178-IND cuus178 978 521 87817 300 Center for Constitutional Rights (cont.) Kadic v Karadzic, 56–57 military contractors, 68 Center for Justice and Accountability, 1, 45, 52, 58, 61, 63, 64, 67, 71, 72, 73, 76, 77, 84, 86, 134, 165, 173, 241, 255, 261, 265, 274, 282, 283, 284, 285, 286, 287, 288, 290, 291, 296 Chavez v Carranza, 165–169 command responsibility, 59–61 Doe v Constant, 266–274 foreign policy, 66–68 human rights networks, 80–82 local impact, 68–69, 70–71 Reyes v Grijalba, 72–74 Romero Case, 45–49 statute of limitations, 199–201 universal jurisdiction, 64–66 Chagnoux, Herve, 210 Chamber of Commerce of the United States, 294 Chavez v Carranza, 164–169, 173, 198, 285 CIA, 67–68 Chavez, Ana Maria, 164 Chavez, Guillermina, 164 Chavez, Humberto, 164 Chen, Judge Edward M., 155, 195 CIA, 67, 102, 268, 276, 291 Clement, Paul D., 27, 35, 36, 37, 125 Coca-Cola See Sinaltrainal v Coca-Cola comity, 39, 148, 151, 152, 157, 159, 169, 196, 197, 202, 280 Constant case See Doe v Constant Constant, Emmanuel “Toto”, 267 Convention Against Torture, 7, 151, 175, 214, 230, 251 Copelon, Rhonda, 20, 52, 53, 55 Corrie v Caterpillar, Inc., 220 Cote, Judge Denise L., 83, 215, 251 crimes against women, 61–63 Cristales, Juan Carlos, 296 Crosby v National Foreign Trade Council, 265 D’Aubuisson, Roberto, 45, 47, 48, 50 Dames & Moore v Regan, 265 Debevoise, Judge Dickinson Richards, 251 Del Monte See Aldana v Del Monte Derian, Patricia, 141 Dichter, Avraham, 191 Doe v Constant, 266–274 international law violations, 63–64 April 5, 2008 INDEX Doe v ExxonMobil, 131, 173, 221–222, 244, 278 international law violations, 226 Doe v Liu Qi, 129, 147, 155, 182 act of state, 195–196 Bush Administration, 140 Doe v Saravia, 44–50, 256 Doe v Unocal, 57–58, 138, 212, 234, 236, 277, 286, 289, 292 Bush Administration, 125–127, 140 Clinton Administration, 124 crimes against women, 62–63 in contrast with Talisman case, 83 Dreyfus v Von Fink, 54 Dyncorp See Arias v Dyncorp Earth Rights International, 52, 58, 61, 62, 64, 70, 77, 78, 80, 82, 83, 206, 207, 208, 216, 227, 236, 238, 241, 261, 275, 285, 286, 288, 289, 291, 294, 295 Doe v Unocal, 57, 204–212 local impact, 69–70 Eisenbrandt, Matthew, 45, 47, 49, 60, 64, 67, 68, 69, 70, 73, 78, 79, 80, 81, 84, 85, 86, 87, 165, 173, 174, 199, 200, 203, 255, 256, 283, 284, 285, 286, 287, 288, 289, 291, 295, 297 Chavez v Carranza, 67–68 Reyes v Grijalba, 73–74 Romero Case, 45–49 El Masri v Tenet, 102–103 Ellis III, Judge T.S., 102 Elmaghraby v Ashcroft, 97 Elmaghraby, Ehab, 97 El-Masri, Khaled, 102 El-Shifa Pharm Indus Co v U.S., 101 Enahoro v Abubakar, 169 See Abiola v Abubakar, 136 Erie v Tompkins, 34 European Court of Human Rights, 228 ExxonMobil See Doe v ExxonMobil Falun Gong, 113, 129, 189, 195 Feeney, Moira, 77, 85, 255, 282, 285 ´ ˜ Filartiga v Pena-Irala, 3, 17–22, 63, 224, 227, 235, 245, 251, 277 Caden decision, 20–21 Carter administration, 118–120 extra-territorial jurisdiction, 38–39 international law, application of, 31–32 Nickerson damages ruling, 21 Nickerson dismissal, 19–20 Second Circuit holding, 20 15:57 P1: JZP CUUS178-IND cuus178 978 521 87817 INDEX Filartiga, Dolly, 1, 17, 18, 19, 21, 22, 53, 54, ´ 284 Fisher, Judge Raymond C., 194, 197, 216, 240 Flores v Southern Peru Copper, 227–228, 233 Ford v Garcia, 60, 80 Foreign Sovereign Immunities Act, 153, 155, 156, 184, 187, 190, 191 Forti v Suarez-Mason, 58, 198 forum non conveniens, 19, 176, 178, 179, 202, 229, 249, 250, 252, 258, 261, 262, 279 FRAPH, 267, 268, 270 Friedman, Judge Paul L., 192 Friendly, Judge Henry, 26 Front Revolutionnaire Pour L’Avancement et le Progres d’Haiti See FRAPH Geneva Convention, 6–7, 105, 106, 230, 232, 247, 251 Genocide Convention, 62, 151, 213, 230 Gershon, Judge Nina, 247 Ginsburg, Justice Ruth Bader, 37 Glasser, Judge Israel L., 233 Green, Jennifer, 19, 53, 56, 68, 77, 78, 81, 84, 86, 174, 283, 284, 289, 292 Guantanamo Bay, 89, 97, 133, 296 ´ Haig v Agee, 104 Hall, Judge Peter W., 151, 157, 215 Hamdan v Rumsfeld, 105 Hamdi v Rumsfeld, 105, 265 head of state immunity, 123, 154, 191 Nuremberg, 10–11 Hergen, James, 109, 111, 129, 131, 135, 140, 142, 188, 212, 238, 283, 293 Hernandez, Maria Julia, 287 Herz, Richard, 207, 210, 289, 291, 292, 295 Hoffman, Paul, 30, 31, 32, 33, 35, 37, 39, 41, 42, 43, 153, 206, 238 Holmes, Justice Oliver Wendell, 32 Human Rights First, 52, 60, 98, 203, 288 Human Rights Watch, 206 Hurwitz, Ken, 288 Ibrahim v Titan, 222–223, 292 Illston, Judge Susan, 219 Imle, John, 207, 209, 210 In Re Estate of Marcos See Trajano v Marcos, 156 International Court of Justice, 228 April 5, 2008 301 International Covenant on Civil and Political Rights, 7, 63, 251 International Covenant on Economic, Social, and Cultural Rights, 228 International Labor Rights Fund, 52, 58, 275 Iraq and Afghanistan Detainee Litigation, 98 Jama v INS, 251 Jensen, Judge Delwen L., 198 Jiang Zemin, 190 Joo v Japan, 157–158, 186–187 jus cogens, 123, 155, 186, 190, 194, 216, 225, 230 Kadic v Karadzic, 56–57, 169, 209, 284 act of state, 194–195 Clinton Administration, 122 command responsibility, 58–59 crimes against women, 61–62 forum non conveniens, 176 Nuremberg reference, 13 Karadzic, Radovan, 13, 56, 58, 59, 61, 123, 159, 169, 176, 182, 194, 213, 226, 234, 277, 279 Katzmann, Judge Robert A., 151, 214, 215 Kaufman, Judge Irving, 20, 22, 31, 36, 38, 39, 55, 118, 224, 246, 254 Kennedy, Justice Anthony, 32 Kennelly, Judge Matthew F., 141, 182, 194 Khulumani v Barclay, 151–152, 157, 262 aiding and abetting, 214–215 Kiobel v Royal Dutch Petroleum, 225, 246 See Wiwa v Royal Dutch Petroleum Kissinger, Henry, 99 Kravitch, Judge Phyllis A., 197 Lenard, Judge Joan A., 73, 256 Leval, Judge Pierre Nelson, 177, 280 Lew, Judge Ronald S.W., 57, 207, 208, 210, 212 Liu Qi Case See Doe v Liu Qi Maguire, Robert, 273 Mahan, Judge James C., 240 Manion, Judge Daniel A., 155, 190 Marbois Affair, 28 Marcos, President Ferdinand, 120 Marrero, Judge Victor, 154, 188 Martinez, Judge Jose E., 223, 226, 234 Matar v Dichter, 140, 191–192 Mauricio, Carlos, 285 McCalla, Judge Jon, 166, 169 McKenna, Christopher, 64, 80, 285, 288 15:57 P1: JZP CUUS178-IND cuus178 978 521 87817 302 Merchant, Pamela, 58, 64, 66, 69, 70, 80, 85, 86, 134, 255, 265, 284, 285, 286, 289, 290, 295 Morrow, Judge Margeret M., 109, 230 Mostyn v Fabrigas, 38 Mudenge, Stan, 188 Mugabe, President Robert, 154, 188 Mujica v Occidental Petroleum, 143, 152, 178–179, 233, 236, 280 aiding and abetting, 217–218 comity, 197 Mwani v Bin Laden, 247 National Association of Manufacturers, 294 National Foreign Trade Council, 294 Nickerson, Judge Eugene H., 19, 20, 21, 54, 254 Niles, Thomas, 236, 237, 293 Nuremberg Tribunals, 7–14, 184, 187, 277, 281 crimes against humanity, 12 ex post facto laws, 12 head of state immunity, 10–11 Kadic v Karadzic, 56 reciprocity, 141 state sovereignty, 9–10 war crimes, 12 O’Connor, Justice Sandra Day, 28, 29, 105, 125 Oberdorfer, Judge Louis F., 173, 221, 226, 234 Office 6/10, 190 Organization for International Investment, 294 Pauley, Judge William H., III, 191 Pfizer See Aduma v Pfizer Philips, Carter G., 26, 27, 28, 32 political question doctrine, 35, 99, 101, 102, 110, 111, 123, 124, 127, 130, 132, 148, 151, 158, 159, 162, 187, 243, 244, 245, 258, 261, 262, 263, 264, 276, 277, 278, 279 Pregerson, Judge Harry, 209 Presbyterian Church v Talisman, 83–84, 251 aiding and abetting, 215–216 foreign policy, 159–160 Raboteau massacre, 268 Rasul v Bush, 89–90, 133 immunity, 91–96 April 5, 2008 INDEX Rea, Judge James M., 152, 198, 233 Redford, Katharine, 70, 77, 78, 84, 206, 238, 285, 286, 288, 292 Reinhardt, Judge Stephen, 211 rendition See El Masri v Tenet Rescate, 296 Reyes v Grijalba, 70, 74, 256, 282, 297 Reyes, Carlos Omar, 164 Reyes, Gloria, 256 Reyes, Oscar, 256 Robb, Judge Roger, 24, 36 Roberts, Judge Richard W., 101, 220, 231 Robertson, Judge James, 223 Roe v Bridgestone, 231–232, 235 Romagoza Arce, Juan, 1, 199, 284, 287, 297 Romagoza v Garcia, 1–3, 80, 283, 284, 288, 297 command responsibility, 59–61 Nuremberg reference, statute of limitations, 199–201 Romero case See Doe v Saravia Romero, Archbishop Oscar, 44, 45, 48, 49, 203, 288 Rumsfeld, Donald, 89, 106, 296 Rymer, Judge Pamela Ann, 148, 187 Salt Pit, 102 Sanchez-Espinoza v Reagan, 223 Saperstein v PLO, 247 Saravia case See Doe v Saravia Saravia, Alvaro, 44, 45, 47, 48, 49, 295 Sarei v Rio Tinto, 107–112, 149, 156, 171, 197, 240, 249 act of state, 193–194 aiding and abetting, 216–217 international law violations, 230 Scalia, Justice Antonin, 30, 35, 150, 163, 238, 265 Schaufelberger, Albert, 164 Schneider v Kissinger, 99, 100–101 Schneider, General Ren´e, 99, 276 Schwartz, Judge Allen G., 249 Seitz, Judge Patricia A., 247 sex crimes See crimes against women Simons, Marco, 69, 208, 227, 285, 286, 292 Sinaltrainal v Coca-Cola, 223, 226 Smith v Libya, 123 Sosa v Alvarez-Machain, 24–25, 63, 224, 235, 245, 259, 263 Bush Administration, 125 cause of action, 33 15:57 P1: JZP CUUS178-IND cuus178 April 5, 2008 978 521 87817 303 INDEX extra-territorial jurisdiction, 39 holding, 29 international law, 34–35 Ninth Circuit, 25 separation of powers, 37 specific, universal and obligatory, 25 Souter, Justice David, 29, 32, 34, 37, 39, 42, 149, 172, 237, 245, 264 South African Apartheid Litigation, 172 aiding and abetting, 214 Bush Administration, 149–151 foreign policy, 156–157 international law violations, Southern Peru Copper See Flores v Southern Peru Copper sovereign immunity, 41, 96, 98, 123, 158, 184, 185, 186, 188, 192, 248, 249, 261, 276, 279 Sprizzo, Judge John E., 149–151, 213, 232, 234, 251 state secrets privilege, 102 state sovereignty Nuremberg, 9–10 Westphalian conceptualization, 5–6 Stein, Judge Sidney H., 268, 287 Stevens, Justice John Paul, 27, 29, 37 Stewart, David, 236 Story, Justice Joseph, 183 Tachiona v Mugabe, 137, 154 immunity, 188–190 Taft, William H., IV, 109, 127, 134, 135, 136, 143, 159, 256, 278 Talbot v Janson, 217 Talisman Case See Presbyterian Church v Talisman Tel Oren v Libyan Arab Republic, 23–24, 244 Telesat Inc v U.S., 96 Tenet, George, 102 The Charming Betsy, 32 The Paquete Habana, 32, 35, 238 Titan case See Ibrahim v Titan Tjoflat, Judge Gerald B., 200 Torture Victim Protection Act, 36–37, 49, 59, 60, 87, 97, 126, 141, 165, 176, 177, 182, 188, 198, 202, 216, 218, 220, 230, 239, 245, 263, 274, 280 exhaustion of local remedies, 167 statute of limitations, 166–167 torture definition, 231 Total Oil Corporation See Doe v Unocal, 204 Trajano v Marcos, 148, 175 official immunity, 187–188 Reagan Administration, 121 Trajano, Agapita, 175 U.S Council for International Business, 294 Ungaro-Benages v Dresdner Bank AG, 148 comity, 197 United States Chamber of Commerce, 144 United States Council for International Business, 236, 293 Universal Declaration of Human Rights, 6, 63, 68, 251, 293 universal jurisdiction, 4, 7, 17, 38, 39, 40, 64, 71, 171, 239, 279, 280 Unocal Case See Doe v Unocal Urbina, Judge Ricardo M., 90, 91 USA Engage, 293 Velasquez, Manfredo, 71 ´ Velasquez, Zenaida, 72, 282, 297 ´ Voluntary Principles on Security and Human Rights, 293 Von Dardel v USSR, 122, 185–186 Wa, Ka Hsaw, 206 Wanger, Judge Oliver, 48, 49, 256, 287 War Crimes Act, 230 Wayne, Anthony, 237 Weinstein, Judge Jack, 152, 158, 216, 230, 244, 278, 281 Weiss v American Jewish Committee, 232, 250 Weiss, Peter, 18, 19, 52, 53, 54, 55, 56, 57, 58, 61, 65, 66, 68, 105, 106, 118, 119, 141, 232, 251, 254, 285, 290, 292, 296 ´ bringing Filartiga, 52–55 universal jurisdiction, 64–65 Weixum v Bo, 147 Westfall Act, 91, 96, 98 White, Ambassador Robert, 49, 50, 67, 118 White, Richard, 18 Wiwa v Royal Dutch Petroleum, 63, 175, 202, 280 forum non conveniens, 176–178 Wood, Judge Kimba, 226 Woodlock, Judge Douglas P., 287 Xuncax v Gramajo, 59, 296 15:57 ... egregious human rights violations who is found within its borders The United States has been slow to accept this universal jurisdiction Through ATS cases, human rights groups are pushing federal courts. .. April 11, 2008 978 521 87817 ii 20:38 P1: SBT CUUS178-FM cuus178 April 11, 2008 978 521 87817 Justice Across Borders THE STRUGGLE FOR HUMAN RIGHTS IN U. S COURTS Jeffrey Davis University of Maryland,...This page intentionally left blank P1: SBT CUUS178-FM cuus178 April 11, 2008 978 521 87817 JUSTICE ACROSS BORDERS This book studies the struggle to enforce international human rights law in U. S