Reparations (English)

8/9/2019 Reparations (English)

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by Sandra Colliver & Moira Feeney

edited by Liam Mahoney

Reparations

Using civillawsuits to obtain reparation for survivors of human rights abuses

and to challenge the impunity of their abusers

A Tact ical Notebook published bythe Ne w TacticsProject

of th e Center for Vict ims of Torture


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PublishedbyThe Center for Victims of TortureNe w Tactics in Human RightsProject717 East River RoadMinneapolis, MN 55455 USAww w.cvt .org , ww w.newtactics.org

NotebookSeriesEditorLiam Mahony

DesignandcopyeditingSusan Everson

2005CenterforVictimsofTortureThis publication may be freely reproduced in print and in electronic form as long asthiscopyright notice appears on all copies.

DisclaimerThe views expressed in this report do not necessarily reflect those of the Ne w Tactics in Human RightsProject .The project does not advocate specif ic tactics or policies.


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6

65

4

The Center for Victims of TortureNe w Tactics in Human RightsProject

717 East River RoadMinneapolis, MN 55455 USA

w ww.cvt.org , w ww.newtactics.org

Author biographies

Letter from the New Tact icsProject Director

Introduct ion

Strategiccontext of the tact ic

8What lawsuits against foreign-born humanrights abuserscan accomplish

12How the tact ic may be used in countries outside the U .S.14How the tact ic works in the U .S.

17Challenges in bringing these lawsuits

18Lessons learned

20Resources


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5/20

March

2004

Dear Friend,

Welcome to theNewTactics inHumanRightsTacticalNotebookSeries! Ineachnotebookahuman rights

practitionerdescribes an innovative tacticused successfully in advancinghuman rights. The authors arepart of

the broad anddiversehuman rightsmovement, includingnon-government and governmentperspectives,

educators, law enforcementpersonnel, truth and reconciliationprocesses, and womens rights andmentalhealth

advocates. Theyhave both adapted andpioneered tactics thathave contributed tohuman rights in theirhome

countries. In addition, theyhaveutilized tactics that, when adapted, can be applied in other countries and

situations toaddress avariety of issues.

Eachnotebookcontainsdetailed information onhow theauthorandhisorherorganization achievedwhat theydid. We want to inspireotherhuman rightspractitioners to think tacticallyand to broaden the realm of tacticsconsidered to effectively advancehuman rights.

In thisnotebookwe learnhowcivil lawscan beused tohold torturersandotherhumanrightsabusers

accountable, and to gain reparations for survivors. TheCenter for Justice andAccountability (CJA) represents

survivorsusing theAlienTortClaimsAct (ATCA, dating back to 1789)and theTortureVictimProtectionAct

of 1991, whichgives bothU.S. citizens andnon-citizensalike the right to suehuman rights abusers who live in

orvisittheU.S. CJAhaseffectivelyused theseactstohelpend thepossibilityofabusersusing theU.S. asasafe

haven, toassistsurvivors ingaining reparations, and to break thesilence thathasenabledabusers to live in

impunity. Thisnotebookdemonstrateshowcountries with laws similar to theATCA canput them towork to

end such impunity. Activistsaround theworldcanconsiderways touse theirowncivil laws, and to target

abusers who travel to theU.S. by building collaborations amongdiverse groups that include activists in theU.Sand abroad, refugees, lawyers, andpeople skilled inusing themedia.

The entire series ofTacticalNotebooks is available online at www.newtactics.org. Additionalnotebooks will

continue to beaddedover time. Onourweb siteyouwillalso findother tools, includinga searchabledatabaseof

tactics, adiscussion forum forhuman rightspractitioners, and information about our workshops and symposium.

To subscribe to theNewTacticsnewsletter, please send an e-mail [email protected].

TheNewTactics inHumanRights Project is an international initiative led by adiverse group of organizations

andpractitioners fromaround theworld. Theproject iscoordinated by theCenter forVictimsofTorture (CVT)

andgrewoutofourexperiencesasacreatorofnewtacticsandasatreatmentcenterthatalsoadvocatesforthe

protection ofhuman rights from auniquepositionone ofhealing and reclaiming civic leadership.

Wehope thatyou will find thesenotebooks informational and thought-provoking.

Sincerely,

Kate Kelsch


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6

all are subject to deportation investigations.In one case,

the lawyers who worked on the civil case are helpingothers in the defendant s home country to prosecute

him following his deportation from the U.S.

These lawsuits have contributed to th e worldwide move-

ment against impunity by:

1) h elpin g ensure that the U.S. do es not remain a saf e

haven for such perpetrators,

2) ho ld ing individual perpe tra tors accountable forhuman r ights abuses,

3) p ro vid in g victi ms with some sense of off icial ac-

knowledg ment and reparation,4) establishing an historical record of what happened ,

5) contributing to the development of international

human rights la w, and

6) b uildin g a const i tuency in the U.

S.

that supportsthe application of internatio nal law in such cases,

while creating an awareness about human r ights

violations in all regions of the world.

Th ese cases, when viewed with oth er anti-impunity ef-forts around the world , are also:

7) h elpin g t o create a cl imate of deterrence , and

8) catalyzing e fforts in many countr ies to prosecutetheir own human rights abusers.

These eight objectives will be discussed at greater lengthlater in the notebo ok .

Strategiccontext of the tacticHUMAN RIGHTS ABUSERSIN THEU.S.

The Center for Just ice and Accountability (CJA) esti -mates that several hundred hu man r ights abuserspeople wi th substantial responsibi l i ty for heinous

atrocitiesnow live in the U .S., and that several dozen

high-level perpetrators visit every year. Th is est imateissupp orted by the U.S.Immigration and Customs En-

forcement Bureau.1

IntroductionWhen speaking about his involvement as one of the

plaintiffs in Romagoza, Gonzalez, & Mauricio v. Garcia

& VidesCasanova, a case against two high ranking Sal-vadoran generals for torture committ ed in 19791983,

Carlos Mauricio sai d, I am participating in thiscase in

order to help send a message t o military leaders aroundthe world that , if they commit atrocities, they will not

be able to visit or live in the U .S. with impunity. They will

always have to fear that someone somed ay may rec-ognize them and bring them to justice.I am involved in

th iscase to try to det er people , especially military people

in El Salvador and elsewhere , from committing atroci-

ti es in the future .Let me tell you , many military offic-

ers in Salvador dream of living in the United Sta tesaft er they retire. My case and other cases ar e sending

a powerful message to them.Resolutions passed by

the U.N. General Assembly and reports by human rights

organizations are effective in publiciz ing what hap-pened, but they do not send a strong message t o mili-

tary lead ers, who think th ey are above the law. Theymay be above the law in th eir home countr ies, butthese lawsuit s tell them that they are notabove the

law in thiscountry.

Since 1980, 18 non-U .S.-born human r ights abusers

who m oved to or were visi t ing the United States havebeen successfully sued by t heir victi ms in civil proceed-

in gs. The victims have been able to use two U.S. la ws

one enacted in 1789 as part of t he very first JudiciaryAct , the other enacted in 1991that en able vict ims

of certain egregious human r ights violat ions, wher-

ever committed, to br ing civil lawsuit s in U.S. federal

court against those r esponsible for the violat ions,

solong as the defendants are physically present in the

Uni ted Sta tes.

Of the 18 defendants, two were current high-ranking

government officia ls: the Bosnian Serb leader RadovanKaradzic, an d Lui Qi, Mayor of Beijing. Nine were former

high-ranking civilian or military officia ls who continued

to exercise considerable influence .Several of the de-fendants were particularly sadistic, hands-on torturers.

Because these sui ts are civil in nat ure , the perpetrators

cann ot be held in jail.In some cases, however, evidence

uncovered during the civil lawsuit has been used by U.S.

government auth orit ies to arrest and dep ort the per-

petrator;some plaintiffs have been able to recover sub-

stant ial assets from the defend ants.

An d in all of the cases the perpetrators have been ex-

posed as human r ights violators, and subjected to the

shame and ostr acism their act ions deserve . Their liveshave been disrupted ; most fled the U .S. after the law-

sui ts were f i led against them. Of the fo ur remaining,

CarlosMauricio, plaintiff inCJAscaseagainst the twoSalvadoran

generals, demandsjustice outside of the Fresno FederalCourtHouse.


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Reparations:Using civil lawsuits against human rights abusers 7

Th ese perpetratorscome from more tha n 70 countries,

including Bosnia, Cambodia, Chile, El Salvador, Ethiopia,

Guatemala , Hait i, Honduras,India ,Liberia ,Pakistan ,

Per u,Rwanda ,Sierra Leone,Somalia ,Sri Lanka,Syria ,

and Vietnam. Only a few dozen have been deported ,

nearly all of th em since 2000 (approximately 90 peo ple

were previously deported or extradite d for Nazi-eracrimes). Most are low-level abusers; nearly half are Hai-

tian.2

The majority of perpetrators are identified during the

asylum process, when they declare that their fear of

persecution is based on their involvement with a unit

that part icipated in human r ights atrocities. Despite

the fact that Congress ado pted a law in 1994 tha t givesU.S.courts jurisdiction to prosecute such crimes,3 no hu-

man r ights abuser has been criminally prosecuted in

the U.S. for torture .

THEPRESENCEOFHUMAN RIGHTS ABUSERS

CAUSESTHEIR VICTIMSEXTREME ANXIETYIt is important to understand that survivors of atroci-ti es ofte n live in the same communities as their perpe-

trators. In New York City, for example , the Hait ian

community is home to a man at the center of a CJA

case . Emmanuel Toto Constant was the outspoken

head of FRAPH (the Arme d Revolutionary Front for theAdvancement of Hait ian People , and also the Creole

word for to hit or to beat ), Haitis most brutal para-

military organization. The Haitian people hold Constantresponsible for a widespread and systematiccampaign

of rape , torture, and murder from 1992 to 1994.In

1996, the Hait ian comm unity in New York discovered

that Constant was ope nly working in the real esta tebusin ess in Queens and Brooklyn . An article in the At-

lanti c Monthlyof June 2001 describes the traumatic

experience of on e Hait ian family when Constant ap-

peared at th eir door asking if he could tour their house.4

The numerous vict ims of FRAPH who were forced totake refuge in the U .S. must l ive with the daily fear of

meeting the man responsible for their torture .

Another of CJAs cl ients, Oscar Rey es, encountered

former Honduran military intelligence chief Lt. Col.Jua n

Lpez Grijalba at a reception for Honduran dignitaries.Unable to speak out at the time , he and his wife had to

wait ten years for justice.In 2002, the Reyeses, through

CJA , filed a lawsuit against Grijalba for their unlaw ful

arrest and bru tal torture in 1983. Based on their testi-

mony and that of ot her CJA witnesses, Grijalba wasdeprived of his income and deported to Honduras,

where he faces a criminal investigation .

CJAs founder, a licensed clinical social worker who hascounseled torture survivors, has found that two things

consistently emerge as integral parts of the heal ing

process: a need fo r justice , and an anxiety regarding

perpetrators who live in the U .S.

THELEGALBASIS OFTHECIVILLAWSUITS

The A lien Tort Claims Act (ATCA), passed by Congress in

1789, allows aliensnon-U.S.citizensto bring civil

la wsuits for torts.. .committed in violat ion of t he lawof nations or a treaty of the Unite d Sates.

The ATCA was largely unused u ntil 1980, when a fed-eral Court of Ap peals issued its landmark judgment in

the case o f Fi lartiga v.Pena-Irala. Th e case involved a

Paraguayan citizen , Dolly Fi lartiga, who moved to the

U.S. after her brother was tortured and killed by Pea,

a Paraguayan police chief. When Dolly discovered that

Pea was visiting the U .S.,she and her father brought

an action against him, und er the ATCA , for torture and

wrongful death. The Court of Appeals ruled that state-

sponsored torture violated the law of nations and thatthe torturer washost i humanis, an ene my of all man-

kind.

While this wasconsidered a ground-breaking judgment,

i t did not lead to a f lood of cases. Th e court set a high

standard : the violat ion had to be of a rule that com-

manded the g eneral assent of civilized natio ns. Sub-

sequent courts elaborated further requirements. Th eviolation must be of a norm of international law that isspecif ic, universally condemned, and obligatory. Cases

may be pursued against individuals only if they havebeen personally served while physically present within

the territory of the U .S. Ca ses are barred by the stat-

ute of l imitations unless filed wit hin 10 years of the

violation,

unless there are extenua ting circumstancesi.e., a threat of retaliation during that period , or a lack

of access to necessary evide nce.

Co ncerning most claims, the defendant must be a gov-

ernment off icial or agent , or have worked togetherwith government agents. A death squad leader, for

instance , wou ld be liable only if he received support

from government forces.In the absence of any form of

1 ICE Fact Shee t, http://ww w.ice.gov/graphics/news/factshee ts/

nosafehaven.htm. SeealsoAmnestyInternational, USA, quotingan im-

migration service source:USA:ASafeHaven forTorturers (April 10,

2002) . Avai lable at http://ww w.amnestyusa.org/stoptorture/

safehaven.pdf.

2 For information on thenumber ofHaitiansplaced indeportation

proceedings ashuman rights abusers, seeAlfonsoChardy, 2 More

HaitianTortureSuspects areArrested inS. Florida PendingDeporta-

tion,MiamiHerald, Dec. 20, 2003, availableathttp://www.miami.com/

mld/miamiherald/news/local/7535658.htm.

3 18 U.S.C. 2340A.

4DavidGrann, Giving TheDevilHisDue,AtlanticMonthly, June

2001.


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8

Themostimportantthingis

tospeakoutandnot letyourself be

dominated bysilence. Butitsnotjustspeak-

ingandopeningwounds.Wehavetoknowwhen

itsagoodtimetoshareourexperiences, andhow.We

needtofindaproperlisteningspaceamongpeoplewhoare

willingtodosomethinginresponsetowhattheyhear.Weneedtofindspacesthatcangeneratemechanismsorchannels

forjustice, andnotjustputthesepeopleinjail butpreventthis

kindofactivityfromhappeningagain, andisolatetorturers

whocometotheUnitedStatesinsearchofaparadise.

Juan Romagoza, on the significance of Romagoza,

Gonzalez,&Mauriciov.Garcia&VidesCasanova,

acaseagainsttwohighrankingSalvadorangen-

eralsfortorturecommittedin 19791983.

st a te act ion , indiv iduals

may be held liable only

for genocid e,crimes

against humanity,

war crimes, and

slavery and sla -

very-like prac-tices.

W h i l e so m eform of st a t e

action is usually

necessary,some

off icia ls have im-

munity: if a defen-dant has head-of -

st a te , dip lomat ic, or

oth er immunity, a case will

be dismissed.

Some judges and academics ra ised concerns about theATCAs application to mo dern-day human rights viola-tions.In 1991, to confirm the acts agreement with the

Fi lartigal ine of cases, and to extend its jurisdict ion to

U.S.citizen as well as alien plaintiffs, the U.S. Congress

adop ted the Torture Victim Protection Act (TVPA). Th e

TVPA provides that an individual who un der actual orapparent aut hority, or color of law, of any foreign na-

t ion subjects anot her to torture or extrajudicial killing

is l iable for damages in a civil act ion . The legislativehistory that accompanies the TVPA makesclear that

the act was intended to confirm the causes of act ion

for official torture and extrajudicial killing, and did not

supercede th e ATCA,

which continued to have otherimportant uses.

The TVPA is narrow er than the ATCA in that it applies

only to torture and extrajudicial kill ing, and may be

used only against individuals who act under actual orapparent authorityof any foreign nation . The TVPA

clearly cannot be ap plied against individuals acting un-

der the auth ority of , or in concert with, the U.S. govern-ment .

In 2004, the U.S.Supreme Court affirmed the Fi lartigal ine of cases in Sosa v. Alvarez-Machain,5 holding that

ATCA claims must rest on a norm of international char-

acter accepted by the civilized world and defin ed with

the specif icit y comparable to the features of the 18th-

century paradigms we have recognized. 6 The Courtdenied the part icular arbitrary arrest claim advanced

by Dr. Alvarez in the case , but did so in a manner that

do es not appear to undermine the Filartigaline of cases.

The Court ci ted, with approval,cases which permittedATCA claims for violations of international norms that

are speci fic, universal and obl igatory. 7 Th ese cases

have ruled that claims of genocid e , war crimes,crimes

against humanity,slavery and slavery-like pract ices,

torture, disappearance ,summary execution, and pro-

longed arbitrary detention are act ionable under theATCA.

In addition to foreign-born human rights abusers, theATCA has been invoked against corporations that do

busin ess in the United States, and against U .S. govern-

ment officia ls and agents. While our tacticconcerns onlyforeign-born human rights abusers, these other casesare worthy of notice , and provide important context .

To dat e ,some 40 cases have been filed against corpo-

rate defendants.In one case , the defendant , Unocal

Corporation , agreed to settle for an undisclosed sum tobe paid to a fund to benefit the communities of Bur-

mese villagers who had been victimized by Unocals prac-

t ices. Th e sett lement has been w idely interpreted to

signify Unocal s acceptance that it l ikely would havelo st the case. Twenty-three of the ot her cases have

been dismissed fo r a variety of reasons.8Five have sur-vived motions to dismiss, and eight others are awaitingdecisio ns on such motions. All cases against U .S. off i-

cia lsincludin g Henry Kissingerhave so far been dis-

missed, though a few decisio ns are still on appe al. One

case wassuccessful ly brought a gainst a private com-

pany that held, without legal auth ority, a contract withthe U.S. government to operate a detention facility for

aliens in the U .S.It appears l ikely that ATCA will be

used successfully against U .S. government contractors,as well asstate and local governmen t officia ls.

What lawsuits against foreign-born

human rights abuserscan accomplish1.THEY CAN ENSURETHATTHEU.S.DOESNOTREMAIN A SAFEHAVEN FOR

HUMAN RIGHTS ABUSERS

The ATCA cases have resulted in t he removal or depar-

ture of numerous human r ights abusers who w ere ei-ther high-level or directly involved in committ ing

atrocities. Of the 18 individualssuccessfully sued usin g

the ATCA , one was deported based on information un-covered by the plaintiffs, one was extradited , one died,

and ten left the country and have not , as far as we

know, returnedincluding five who had moved here to

settle.9 Only five of the 18 remain in the U.S.10 Of those,

one has been den aturalized and is in detention pend-

ing the outcome of deportation proceedings, and one is

the subject of a deportation investigation based largely

on evidence uncovered during the course of ATCA cases.

Th ese 18 cases have clearly deterred numerous abus-

ers from coming to the U .S.Following the ATCA case

against Paraguayan police chief Pena-Irala , for ex-ample , the U .S.consulate in Paraguay reported a de-

cre ase in U.S. visa requests by Paraguayan officia ls and


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military officers.11 Th e Shah of Iran was the last major

human rights ab user to openly seek medical treatment

in the U.S. Altho ugh Baby Doc Duvalier of Haiti came to

Miami in 1986 after he w as forced into exile, he quicklyleft for Fra nce .Salvadorans watching for the en try of

Salvadoran military officers who used to travel regu-

larly to Mi ami and south ern California report that th eseoff icers are no longer traveling here . And immigration

agents have confirmed that certain human rights ab us-

ers from Central America stopped coming to the U.S.aft er mid-2002.Is i t a coincidence tha t a major ATCA

victory against two Salvadoran former defe nse minis-

ters was obtained in July 2002?

O f course , ridding the U.S. of human rights abusers ar-guab ly only exports the problem, unless the receiving

coun try is willing and able to criminally prosecute the

ab user. Most countries are not willing or able, and abus-

erssimply return to th eir hom e countr ies where theycontin ue to enjoy immunity. On the other hand , most

live less well than they did in the U .S. and most havelo st stature , money, and inf luence as a re sult of thela wsui ts.

The f ight against impunity would , in most cases, be

better served if the human r ights abuserscould be

criminally prosecuted in the U .S. However, most U .S.

prosecutors lack the pol i t ical will, and in most cases,

the legal auth ority and/or adequate evidence, to pros-

ecute . Given the current administrat ions wil l ingness

to violate international law in the prosecution of i ts

w ar on terror, virtually all hu man right s organiza-

t ions are reluctant to advocate at this t ime for lawsthat would enhance the powers of the U .S. govern-

ment to prosecute foreign-born human rights abusers.

2.THEY CAN HOLD HUMAN RIGHTS

ABUSERSACCOUNTABLE

Though their punishment does not f i t the severity ofthe crimes, ATCA cases demand accountability, a com-

ponen t of both justice and deterrence . Th e cases ex-

p ose w ha t pe r pe t r a t o rs ha v e done . They ca use

embarrassment. They can limit the careers of foreign

off icia ls whose advancement depends on the ab ility totravel to the U .S. without b eing greeted with revealing

ne wsstories. Th ese cases have conveyed the strong

message that people who commit atrocities will notbe

able to visit or live in the U .S. with impunity. Thiscan bea substantial penalty, especially for persons from coun-

tries with close relations with the U.S. or whose citizensoften travel or retire to the U .S.,such asIndonesia andseveral countr ies in Latin America.

Hector Gramajo, a Guat emalan ex-general, f led the

U.S. after being served wit h an ATCA compl aint in 1991.

He had been preparing to run for hiscountrys pr esi-dency, and had come to the U .S. to obtain a degree

from Harvard Universitys Kennedy

School of Government. After be-ing served with the lawsuit

on his graduation day, he

immediately returned to

Guatemala with his U.

S.

visa revoked , and his

party did not choose

him as it s pr esidential

candidate . His inability

to t rave l to the U .S.

w i t h o u t e m b a r r a ss -

ment now a l iabi l i ty,

Gramajo found his politi-cal ambitions thwarted.

Found responsible for acts oftorture during the Red Terror in

Ethiopia, Kelbessa Negewo lost several jobs,

and was eventually denaturalized and arrested for de-

portation because of the judgment in the Abebe-Jir a

case.

Non-monetary consequences have been imposed in

other cases as well, including an unreported case in 1987

which caused a Chilean torturer to avoid competing inthe Pan-American games in Indiana for fear of having

his horse seized as part of an ATCA case .

Formepersonally, the

verdictprovidedastrongsenseof

healingandclosure. Foralmost 25 years,

Ihadcarrieda bagofheavyrockswithmeeverywhereIwent.ThedaythatItestified, Ile

that bagofrockswiththeU.S.justicesystem

FranciscoAcosta,oneofthewitnessesinthecaseagai

AlvaroSaravia, aformercaptain intheSalvador

airforceandacurrentU.S. resident, heldliab

forhisroleinorganizingtheassassinationof

ArchbishopOscarRomero. Source:The

Tiding, October1, 2005.

5 124 S.Ct. 2739 (2004).

6Alvarez, at 276162.

7

Id. a

t2766.

8Theseincludethattheclaimforinstance, arbitrarydetentionfor less

thanadayisnotactionableundertheATCA;thatthecaseshouldmore

properly be brought elsewhere, e.g., in the country where theviolation

wascommitted;thattheplaintiffshavefailedtoexhaustremediesinthe

countrywheretheviolationwascommitted;thattheclaimsare barred by

thestatuteoflimitations;andthatthecourtsassertionofjurisdictionto

hearthecasecouldinterferewithforeignaffairs.

9Norberto Pena-Irala (Paraguayanpolice chief) wasdeported;Suarez

Mason (Argentiniangeneral)was extradited; FerdinandMarcos (Philip-

pines former President)died. Fivedefendants visiting theU.S. were

successfullysued, andeachleftshortlyafterthelawsuitwasfiled:Karadzic

(BosnianSerb leader), Lumintang (Indonesiangeneral), Gramajo (Gua-

temalanformerDefenseMinister), Kavlin(Boliviancorporatevice-presi-

dent);Assasie-Gyimah (Ghanaian securityofficer). Fivedefendantswho

were resident in theU.S. (in theU.S. more than sixmonths or whomanifested clear intent to stay) left following the filing of the lawsuit:

ImeeMarcos-Manotoc (daughter of Philippines PresidentMarcos),

Barayagwiza(Rwandanradiostationowner), Panjaitan(Indonesiangen-

eral), Avril (Haitian former President), and Vukovic (BosnianSerb war

criminal).

10Garcia andVidesCasanova (Salvadoran generalsand formerDefense

Ministers), Fernandez-Larios (Chileanmajor anddeath squadmem-

ber), andSaravia (Salvadorandeath squadhenchman).

11 Information supplied by Prof. WilliamAceves.


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10

Lawyers also continue to pursue the collection of assets

in past judgmen ts, and are incre asingly going after de-

fendants who have assets that may be reachable by

U .S.courts.Success in collect ing these assets will fur-ther incre ase the cases deterrent impact .In the case

of a perpetrator with no assets, a portion of his or her

salary or pension may be subject to attachment .

The collection of ATCA mon etary judgmen ts, however,

has been dif f icult .It is believed that money has been

collected in only two cases: approxima tely $1 million

from the esta te of Phil ippine Pre sident Ferdinand

M arcos,12 and less than $1,000 from General Suarez-

Mason of Argentina .

Plaintiffs and attorneys in cases resulting in default judg-

ments have attempted to enforce some of these p ast

pending judgments. Dolly Fi lartiga and her family, for

example, are stil l working to en force the judgmen t re-ceived in their groundbreaking case, and recently filed

a new enforcement case in New York federal court . Ateam of lawyers is also working to enforce the judg-ment in Paraguay.

Efforts have also been made in other pending cases, to

date without success. Given the risks involved, it is diffi-

cult to find organizations or law firms who would see kassets on a contingency or pro bonobasis. Non-profit

organizations have not had the resources to success-

fully enf orce judgments against those with assets, es-pecially when t he assets are hidden outside the U .S.

In 2003, CJA embarked on a campaign to track and

collect assets.

Enlisting lawyers in El Salvador to sea rchfor hidden assets, for instance, CJA hasso far obtained

$270,000 from a Salvadoran general, and is working to

acquire more.In another case, CJAspro bonolaw firm

has engaged a n international accoun ting firm to find

assets before the complaint is even filed. We are clo seto ob taining n early $1 million from a Haitian perp etra-

tor who w on $3.2 million in th e Florida state lottery.

CJA is working to build cases against some of the finan-cie rs of death squad activity in El Salvador w ho live in or

regularly visi t the U.S., along with those wh o have fi-

nanced more recent violence in other countries.If andwhen CJA is able to gain possession of defendants as-

sets, the majority of the f unds will go directly to the

plainti f fs; the remainder wil l cover out-of-pocket ex-

penses incurred by CJA and by the law firms that both

work with us on a volunteer basis and advance some of

the costs.

3.THEY CAN PROVIDE OFFICIAL

ACKNOWLEDGMENT&REPARATION FOR VICTIMS

AND SURVIVORSOFHUMAN RIGHTS ABUSES

These cases frequently help survivors experience a sense

of justice , a sense of meaning in their survival, and a

tremendoussatisfact ion in knowing that they havebrought dignity to the memories of those who were

killed or tortured.

Pla inti f fs, therapists,community leaders, and human

rights activists have been eloquent in descr ibing the

impact of the cases on their own healing processes an don their efforts to repair their communityssense o f

lo ss and injustice .In the words of Juan Romagoza , a

Salvadoran tor ture survivor: W h e n I t est i f ied , astrength came over me .I felt like I was in the prow of a

boat and that th ere were many, many people rowingbehind.I felt that if I looked back,Id weep becau se Id

see them again: wounded , tortured, raped, naked, torn,

bleeding.So,I didnt look back, but I felt their support ,

their strength , their energy. Being involved in thiscase,

confronting the generals with these terrible facts

thats the best possible therapy a torture survivor couldhave.

Plaintiffs are gene rally realistic abou t the limits of thela wsui ts, yet grateful for the opportun ity to proactively

pursue justice. Zita Cabello , a Chilean woma n whose

brother was killed and a plaintif f in a CJA case with a

positive jury verdict,

said This la wsui t cannot reducethe pain I feel over the dea th of my brother, Winston .

Not hing will ever diminish that pain . But working with

CJA has given meaning to my pain . That is a tremen-

dous gift.

The website www.nosafehaven.org contains additional

testimony by plaintiffs and a brief submitted to the

Supreme Court about the impact of ATCA cases on sur-vivors.

4.THEY CAN SETTHE

HISTORICALRECORD STRAIGHT

For the plaintiffs involved, and for their communities

as well , these cases are an opportunity to correct the

historical record . Th ese suit s are not only about w hat

happened , but about who was re sponsible . Assuch ,

they serve as miniature truth commissio ns.

In many cases the coun try in which the atrocities took

place isstil l in a period o f transi t ion.Perhaps the judi-ciary is una ble or unw illing to pursue litigation of hu-

man r ights abuses, or there has been no opportunity

12A $150 million settlementwas approved in theMarcoscase, but the

Philippine courts blocked the transfer ofMarcos assets that were also

being claimed by the Philippine government, and the settlementhas

never beenfunded. AllHolocaustassetscases, ofcourse, includedATCA

claims, and billionsofdollarsinsettlementshave beenachieved. Several

ofthelawyersinvolvedinthesecases, includingProfessorBurtNeuborne,

havecreditedthefoundationofATCAjurisprudenceasacrucialelement

intheireffortstoobtainjusticeforvictimsoftheHolocaust.


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for a truth commission.In the case of Haiti, for example,

the commission was largely under-funded an d unableto give all victi ms an opportu nity to come forward, es-

pecially those already forced into exile.Participating inan ATCA case is for many plaintiffs their only chance toput on the public record an account of what they suf-

fered.It is also , for many defend ants, the only docu-

menta tion of th eir role in the atrocities.

5.THEY CAN CONTRIBUTETO THE

DEVELOPMENTOFHUMAN RIGHTSLAW

Th ese lawsuit s have establ ished importan t legal pre-

cedents which have expanded the k inds of humanrights violations which may be subject to sui t, and have

made it possible to sue corporations and contractors

working with the U.S. government . Cases against indi-

vidual perpetrators have established,

in holdings thatwill l ikely withst and post- Alvarezscrutiny, tha t sev-

eral violatio nsconst i tute torts in v iolat ion of t he law

of nations, including torture,summary execution , pro-

longed arbitrary detention , war cr imes, disappear-

a nces, g e n oci d e , cr imes a ga i ns t hum a n i t y, a n dslavery-like pract ices. Decisio ns have also recognized

that ATCA applies to commanders,co-conspirators, an d

aiders and abet ters, as well as to the actual perpetra-tor; to organizat ions and corporat ions as well as to

individuals; and to pr ivate persons as well as to gov-

ernment actors. Th ese d ecisions may have an impactbeyond U.S. borders.

ATCA cases have also given legitimacy to the use o f

international human rights law in U.S.courts generally.

They have demonstrated that customary internationalla w can, and in certain circumstances must , be directly

applied by U.S.courts.It seems l ikely that ATCA deci-

sio ns will be used by U .S.courts in no n-ATCA cases in -

voking international human rights law in other contexts.With the Supreme Court increasingly, in cases like Atkins

v. Virginiaand Lawrence v. Texas,considering interna-

tional law in its decisio ns, this expanding body of int er-

nation al jurisprudence is likely to be influe ntial in many

other areas.

ATCA cases are now a regular part of international

human rightscurricula at law schools, are taught in in-

ternational relat ionscourses, and are regularly ad-dressed at judicial education seminars on international

la w. They have demonstrated the relevance of learn-

ing not only about international law bu t about a h osto f subsidiary issuescrucia l to the decisions of human

rightscases, including the act of state and political ques-

tion doctrines, immunities,forum nonconveniens, ex-

haustion of domestic remedies, equita ble tolling of the

statutes of limitations,standing to sue, and theories of

liability (command responsibility, aiding and abetting,

conspiracy, vicarious liability, direct liability).

6.THEY CAN BUILD A HUMAN RIGHTS

CONSTITUENCY IN THEU.S.

ATCA cases against individual perpetrat ors, on behalfof oft en very sympathetic plaintiffs, put a human faceon human rights violations, and have attracted consid-

erable media coverage that i tself highlights the need

for the ATCA . Th ese cases, along with survivor testi -

mony,comp ellingly illustrate tha t the ATCA provides

survivors of human r ights violat ions with not o nly animportant means but , indeed, the onlymeans for re-

dress in the United States. As U.S.citizens becom e com-

fortable with the notion that the ATCA should beapplied against foreign human rights abusers, it should

be possible to convince courts and the public, at least in

the long run , that the same standardsshould be ap-

plied to U.

S.

agents when they aid and abet such viola-tors, and to U.S.corporations doing busin ess abroad in

collaboration with repressive regimes.

7.THEY CAN DETERHUMAN RIGHTS ABUSES

Whe n linked wit h other anti-impunity efforts aroundthe wor ld , ATCA casescontr ibute to a cl imate of de-

terrence . The fact that ATCA cases have caused some

human r ights violators to leave the U.S. and have dis-suaded others from entering is only a mod est form of

success. When viewed together with developments in

other countr ies, however, ATCA has helped to sub-

stantial ly close of f par ts of the w orld habitual ly en-

joyed by cr iminalsfor ret irement , heal th care , and

education of their children , and simply as an escape

from cr ime and poverty in their home countr ies. Th e

ef fects of the U .S. government s reject ion of the In-

ternatio nal Criminal Court and of oth er interna tionaljust ice mechanisms would certainly be al l the more

egregious were the ATCA not avai lable to addre ss

some of the most culpable human r ights abusers onU.S.soi l.

CJALitigationDirectorMatt EisenbrandtandPro BonocounselNico

VanAlestynofHellerEhrman stand withmembersof theSalvadoran

community outside the Fresno federal courthouse.


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12

8.THEY CAN CONTRIBUTE

TO TRANSITIONALJUSTICE

ATCA casescan serve as a catalyst for the process of

transitional justice in the home country. They can bringhope to activists who have labored without significant

success, and to survivors who fee l solidarity with the

plaintiffs. By demo nstrating that impunity can be chal-lenged, ATCA casescan stimulate discussion about the

crimes of the past , and build supp ort for bringing per-

petrators to justice in their own dom esticcourts.

For instance , a $54 million jury verdict in July 2002

against two former Ministers of Defense fueled de-

bat e in El Salvador regarding repeal of th e countrys

amnesty law. The legal teamssuccess in securing aniniti al $270,000, and the fact that Salvadoran lawyersare now helping the U .S. legal team track down further

assets, are causin g consternation among Salvadors top

military officers. Th e case also has encouraged moretorture survivors to come forward with their stories.

Ot her ATCA cases have had similar effects.13

Maria Julia Hernandez, director of the Human Rights

Off ice of the Archdiocese of El Salvador,clearly sta tes

the impact of these civil cases on transitional justice in

the defendant s home country: The process and the

verdict in thiscase are accomplishments in a long andmost difficult fight against impunity.It is a case in which

all the victi ms of El Salvador emerged and were repre-

sented by these brothers and thissister. Now each of ushas been touched in a way tha t inspires us to continue

on this road . Fr.Jos Tojeira ,Pre sident of UCA , the

Jesuit university in San Salvador commented : It is im-

portant to pursue internation al alternatives as a meansto pressure the Salvadoran justice system. Th ese Salva-

dorans brought their case in the U.S. not to hurt ElSal-

vador, not for propaganda, but to help constr uct an El

Salvador that is based on the truth . To fail to pursue

the commanders endangers the rule of law and th efounda tion of our society.

Th e case a lso e ncouraged witnesses to come forwardwith evidence against two Salvadoran perpetrators who

have lived in the U .S. for more tha n 15 years: Alvaro

Saravia, an organiz er of the 1980 assassination of Arch-bishop Oscar Romero , and Col. Nicol as Carranza, head

of the Hacien da (Treasury) Pol ice , who was forced out

of th e military in 1985 because the high level of atroci-

ti es for which he bore responsibility made it uncom-

fortable for the U .S. to cont inue sendin g military aid.

The verdict in the Romero case, rendered on Septem-

ber 3, 2004, has already had a substantial impact in El

Salvador.For the first time, key representatives of the

Catholic Church have called for revisions to the amnestylaw and a reopenin g of the criminal investigation into

the assassination . Other churches and leaders joined

the cal l, and President Saca has had to defend his oppo-

si t ion several times in the media.

The U.S. judges f inding that Roberto DAubuisson ,

found er of the ARENA party (which remains in pow er),

was the mastermind of the assassination hascre -

ated furth er pressure to reopen th e investigation . Th eimpact of these cases is due, in part, to the tremendous

re spect that U .S. federal courtscommand in El Salva-

dor, report edly even more , for instance , than such in-ternational bodies as the Inter-American Commissio n

on Human Rights. This respect is, apparently, also shared

by the Catholic Church. The Archbishop of San Salvador

stated th at the verdict should help establish Archb ishop

Romeros martyrdom, proving who w as involved in theassassination plot .

HOW THETACTIC MAY BEUSEDIN COUNTRIES OUTSIDETHEU.S.There are tw o main ways in which the tactic is transfer-

able.First, lawyers and activists may explore th e viabil-ity in their own countries of bringing similar lawsui ts orof developing the capacity to do so. The best prospects

for success exist within countries that are host to high-

ranking or numerous foreign-born hu man rights ab us-

ers and have civil or criminal laws that could be used for

bringing cases against the perpetrators.For instance ,

civil sui ts against human r ights abusers for atrocitiescommitted abroa d have been filed in the UK using En-

glish tort law as the basis for the exercise o f civil juris-dict ion. Although none of the cases has yet been

successful ,14 one iscurrently on appeal and there are

good prospects that the case against an individual

hands-on torturer will be upheld.

In Fra nce and Bel-gium, a number of criminal complaints have led to civil

reparation proceedings through adhesion processes.

Second, activists in the U.S. and around the world can

tr ack human r ights abusers wh o live in or are likely tovisi t the U .S. and compile cases against them, f inding

plaintiffs (who can live anywhere), witnesses, and other

evidence . A person with information that a no n-U.S.-born human r ights abuser lives in the U .S. or plans to

visit can contact the Center for Justice and Accountabil-

it y. CJA will evaluate th e lawsuits viability, along withits l ikelihood of promoting human rights and ben efit-

13TheAbebe-Jiracasehad a large effectonpublicopinion in Ethiopia

andon thecommitmentof theEthiopiangovernmenttomove forward

with trials of former officials of theDergue. Plaintiffs counsel gave a

nationally televised address about the case inAddisAbaba inMarch

1994.

14Theyhave beendismissedongroundsofimmunity, insufficientnexus

with theU.K. (a forumnon conveniens test), failure tocome within the

limitationperiod, and inability to serve thedefendant. SeeAl-Adsaniv.

UK, ECHR 35763/97 (Eur. Ct. Hum. Rts. 2001) (affirmingdismissal

of case on immunity grounds).


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14

however, iscurrently accepting cases against individual

foreign-born human rights ab users. When asked about

the possibility of a lawsuit against such an abuser, they

refer people to CJA .Similarly, when people contact usabout lawsui ts in which the other groups might be in-

terested, we make referrals to those organizations.

O n occasion we also refer cases to law school humanrights la w clinics.

HOW THETACTIC WORKSIN THEU.S.To work eff ectively, the tactic requires four essential

steps:

1) tracking down perpetrators in the U .S.,

2) f inding appropria te plainti f fs and witnesses,

3) bringing civil lawsui ts against the perpetrators, an d4) w ork ing w it h t he a u t ho ri ti es to have the perpe-

trators arrested , pr osecuted , and deported .

TRACKING DOWNPERPETRATORS

CJA finds perpetrators living in th e U.S. by using a vari-

ety of methods, the most important being outreach t orefugees,community leaders, human r ights activists,and others who may have kno wledge of these people.

If we obtain informatio n that a perpetrator is living in

a certain cit y, we collaborat e with private investigators

and sometimes the immigration service to establish the

persons whereabouts.

Refugees in the U.S. are often the best sources of infor-

mation about perpetrators who have sett led here ,while activists in the home country are often knowl-

edgeable about perpetrators who will be traveling to

the U.S.as part , for instance, of off icial delegations,

for fundraising purposes,

for medical care,

or to attendpolice or oth er training prog rams.

Human rights activists in a country where atrocities have

been committed can initiate this tactic by tracking the

travel plans of , and collect ing evidence against , topperpetrators. They can contact CJA to f ind out which

perpetrators ar e subject to legal action in the U .S. and

which are protected by diplomatic, head-of-sta te , orsome oth er form of immunity. Assuming adequate in-

formation , CJA can file a lawsuit against a traveling

perpetrator with only a few days notice.

FINDING APPROPRIATEPLAINTIFFS

To file a civil la wsui t, CJA must find plaintiffs who were

victi ms of the perpetrator. We do this by spreading in-

formation quietly through various networks. We are

careful to use only trusted networksso as not to tip off

the defend ant before we f i le the case .If a defend ant

learns of a case before he is formally served with a

complaint , he may flee , destroy evidence , int imidatewitnesses, or hide his assets.

Generally,

we dissemina teinformation through solidarity groups, torture treat-

ment centers, refugee communities, and asylum law-

yers who have handled cases from the coun try at issue.We ask these intermediaries i f they know of pot ential

plaintiffs, and ask them to request that any such plain-t i f fscontact us. We never initiate this direct contactourselves because we wan t people to be recommended

to us by someone th ey trust. We do not want to appear

to be soliciting clients, and we do not w ant to appear to

be applying pressure on them to join the lawsui t .Survi-

vors must want to contact us, and must be interested inlearning abo ut their options.

When a poten tial plaintiff contacts us, we discuss verycarefully with him or her what is involved in being a

plainti f f, and what can be expected. We prefer to do

this in person and wit h a trusted third person present ,

and we also provide the informatio n in writing in thepoten tial plainti f f s native language (see the sample

memo on p age 19).

It is important tha t the interested persons understand

several basic aspects of the case. We discuss the follow-ing points in detail with potential cl ients:

1) Th e d ef en da nt cannot be sent t o jail merely as a

re sult of the case , although th ere is a possibilitythat evidence produced at trial could be used to

arrest and deport the defendant .

2) It is unlikely that we wil l be able to obt ain thedefendant s assets; in any event , the desire to do

so should notbe a reason for a person to join one

of these lawsuits.

3) We can keep the persons iden tity fully confiden-

tial during the initial stages of the lawsuit but , if

the defendant decid es to defend himsel f , and iswilling to participate in a trial, then he has a right

to know th e identit ies of the plainti f fs and wit-

nesses. At this point , a plaintiff may drop out of ala wsuit if he or she wants to maintain a confiden-

tial identity. Accordingly, we always discusssecurity

First, Iamparticipatingin

ordertoseekjustice, andtohelpput

anendtothecultureofimpunitythatexists

inElSalvador. Second, Iwantto bethevoicefor

peoplewhowereneverabletospeakout, forthose

whodonotwant, orareunable, totaketheircasesto

court.Notonlythosewhohave beentorturedandnever

wanttotalkaboutit, butalsothosewhowerekilledduring

torture.Third, Iamlookingforapsychologicalhealingof

thewoundsthattortureleftonme.Ineedanexplanation

andthatiswhyIneedadayincourt....Whateverthe

outcomeofmycase,just bringingthelawsuithas been

avictory.

CarlosMauricio, oneoftheleadplain-

tiffsinCJAsfirstElSalvador

case


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16

The actual trial can last from a few days to several

weeks, depending on the number of witnesses and

plainti f fs involved .If the defendan t hires a lawyer, it

usually takes two t o three years from the date thatthe complaint is f i led to the actual trial.If the defen-

dant does not defend himsel f, it can still take as long as

one to tw o years to complete the process of obtaininga default judgme nt .

After a successful jury verdict is entered, the final stagein the litigation is the collection of assets. Th is pr ocesscan be expensive and complicated. CJA has found i t

useful at thisstage to involve attorneys with specia l

expertise in the area of asset collection .

SEEKING TOHAVETHE DEFENDANT

CRIMINALLY PROSECUTED OR DEPORTED

Despite the usefulness of bringing civil claims against

these perpetrators, the suit sst i l l do not amount tocriminal prosecutions. Althoug h d epriving individuals of

their wealth can be an effective form of just ice , theult imate exercise of justice is their incarceration forthe crimes they have committed against the people of

their own communities. To this en d, CJA recognizes the

importance of working with immigration authorities,

especially in cases where deport ation may lead to crimi-

nal prosecution in the home country. There are alsoother benefits to working with these off icia ls, includ-

ing but not limited to the sharing of information .

In the U.S., immigration authorit iescan arrest a non-

citizen f or a material misrepresentation on his or her

immigration forms. Many forms ask if applicants ever

participated in the persecution of others.

People whoanswer no, and who are show n by CJA to be misrepre-

senting themselves,can be arrested by the immigra-

tion service and placed in deportation proceedings.If a

deportation iscontested, which it usually is, the person

receives a trial which issimilar to a criminal trial in manyways. And if the misrepresentation isclear cut , the per-

son can be criminally prosecute d for perjury.

In December 2004, Congress passed a law giving the

immigration service new auth ority to deport non-U .S.

citizens who have participated in t orture or extrajudi-

cial killing ou tside of the U.S. One Ethiopian manwho

in a 1994 ATCA case brough t by the Center for Consti-

tutional Rights was proven to be a torturerhas been

arrested and placed in deportation proceedings, and

more than 200 suspected abusers are being investi -gated.Recently, using this new law, a coalition of groupsand individuals was able to persuade U.S. authorities to

deny a visitors visa to Narendra Modi , Governor of

Gujurat ,India , because of hisclose involvement in t heanti-Muslim riot in 2002.Regrettably, these immigra-

tion laws leave open the possibility of ab use. CJA works

At thisstage we also seek to enlist the participation of

a private law firm to work on th e case pro bono. A case

requires hundreds, even thousands, of hours of attor-

ney time , and the costsi f the defendant decid es todefend the sui tare likely to exceed $100,000.

O nce the complaint is f i led and personally served onthe defendant , the future of the sui t depends on

whether the defendant chooses to defend . As these

sui ts are only civil act ions, a defendant can choose t o

simply ignore th e complaint and face a default judg-

ment . Defendants wh o are only visiting the U.S. when

served with the suit are more likely to do this, particu-

larly if their contacts with the U.S. are minimal.It is

CJAs experience , however, that individuals who want

to maintain a certain lifestyle in the U .S. will hire alawyer and respond to the lawsuit .Such cases almost

always go t o jury trial.

Pre-trial work includesseveral tasks:

draft ing responses to motions to dismiss filed bythe defendants lawyer,

pursuing civil discovery (locating witnesses and evi-

dence),

draft ing interrogatories (quest ions for opposing

counsel to answer about the evidence that will be

introduced) and responding t o interrogatories,

t ak ing deposi t ions of the de fendant and the

defendants witnesses, and preparing plaintiffs an d

plaintiffs witnesses for their depositions by oppos-ing cou nsel;

preparing plaintiffs and witnesses psychologically

for what they can expect at trial.

The legal team behind the successfuljudgment againstAlvaroSaravia

stands outside the federalcourthouse in Fresno, CA: (from left to

right startingwith the back row):Matt Eisenbrandt ofCJA, Russel

Cohen ofHeller Ehrman, Nico VanAlestyn ofHeller Ehrman, Clare

T.OHoyne ofHeller Ehrman, Patty Blum ofCJA, andAlmudena

Bernabeu ofCJA.


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with immigration lawyers and agents to encourage

them to invest igate defendants in our cases, and onoccasion is able to provide exculpatory information tha tpersuades them to close an investigation when appro-

priate .

In addit ion, the Department of Justice can initiate a

criminal prosecution for torture pursuant to a 1994 lawthat makes torture committed outside the U .S. after

1994 a crime that can be prosecuted in the U.S. Although

the DOJ has yet to exercise its authority in this area ,with proper guidance from human rights groupssuch as

CJA this la w could be used productively to achieve a

higher level of accountability.

CHALLENGESINBRINGING THESELAWSUITSThe num ber of ATCA/TVPA cases brought against indi-

vidual perpetrators pales in comparison to the number

of human rights ab users who now live in or visit the U.S.

There are several reasons why such a l imited nu mber

of cases have succeeded. Many relate to a lack of avail-

able resources, but others are intrinsic to any judicia lpr ocess.

The first difficulty is that of f inding the hu man r ightsabusers. Th iscan be easy if the defend ant has been

outspoken or i f the part icular refugee community is

suff iciently tight-knit . Bu t some defendants are expe-

rienced in keeping a low profi le .Some have changed

their names,some are even believed to have un der-gone plasticsurgery.Such cases require additio nal re-

sources, including private investigators. Often it issimply

not possible to locate perpetrators believed to be in

the U.S.

Second, it is often dif f icult to find victi ms or witnesses

willing to participate in a lawsui t . Th is is especially the

case i f security remains a genuine concer n .People in

the U.S. often h ave family membersstill living at ho mewho are vulnerable to reprisal , and there are criminal

networks that op erate even in the U .S. CJA h as been

advised , for example , to be extremely careful aboutbringing cases against defendants f rom Guatemala

and Colombia . The more recent the crimes, the more

dangerous the de fendants and the i r cr iminal net-works.

Evidence gathering is also a challenge, especially con-

cerning abuses that happ ened many years ago . How-

ever, expert testimonyincluding that of human rightsreportersis admissible to establish patterns of abuse.

N e x t , p l a i n t i f f s a n d w i t n ess es are l i ke ly to be

retraumatized by the process of telling their stories,although most say that the experience is worthwhile .

There are more than 30 torture treatment centersthroughout the Uni ted Sta tes, and professionals atthese centers have expressed their willingness to pro-

vide services to plaintiffs and witnesses free of charge .

More than half of CJAscl ients have received services

from these centers.

Asset collection presen ts uncharted and challenging ter-

ritory for many of these cases. Thiscan be an extremely

expensive endeavor, without guaranteed resul ts. Anddepending on the defendantssophistication, assets are

easi ly moved of f shore or put und er another name .

Gloria andOscar Reyes brought a lawsuit againstHonduran former

military commanderGrijalba.

Before the trial started, I

couldntsleep. Ifeltfearknowingthatthe

generalswouldconfrontme. Iwasn'tfrightened

ofthemsomuchasofhowmy bodymightreact. Iwas

afraidofhowIwouldfeel beingfacetofacewiththemagain,

soclose.Ihadalotofproblemswithinsomnia;Ihadmore

frequent boutsofdepressionthanInormallydo. Iwasafraidformy

familyinElSalvador, andIstillamafraid. Butmymotherandmy

familyhaveacceptedthat, andtheyvetoldmethat. Theyusedto

wonderwhywasIgettingmyselfintotheseproblemsagain, andcausing

problemsforthem, too. Itwasatremendousinternalchallenge. But

little bylittle, talkingwiththemandothershashelpedmetoclarifymy

thoughts, andstrengthenmyconvictionincarryingthroughwith

thiscase, andtoseethelong-termhistoricalimpactofthiscase.

JuanRomagoza, regardingthepsychologicalpreparationfor

andsignificanceofRomagoza,Gonzalez,&Mauricio

v.Garcia&VidesCasanova:acaseagainsttwo

highrankingSalvadorangeneralsfortor-

ture.


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18

Although CJA has generally had a positive relationshi p

with immigration officia ls, this area also presentschal-

lenges. Government agencies are bureaucratic and po-

litical . Other agencie s, including the CIA and Sta teDepartment , occasionally become involved in these

cases.

Finally, one of the greatest difficulties in bringing a suc-

cessful ATCA case is the ongoing challenge to this area

of law. The recent 2004 Supreme Court ruling on Sosa v.

Alvarez-Machaindid NOT resolve several potential le-

gal challenges to ATCA claims.15 Casescan be dismissed

if they are found to violate the statute o f l imitations

(claims must be filed within ten years of the crime, but

courts have extend ed this period for equitable reasons-i.e . when the defendant was absent from the U .S., or

victi ms and witnesses were deterred from bringing a

suit due to a well-found ed fear of reprisal). They can be

dismissed if the defendant is found t o have immunityby virtue o f status as a current head of state or foreign

minister, or by virtue of diplom atic functions in the U.S.

Courts may determine that the plainti f fscould have ,and therefore should have , brought the suit in their

home country. There are several other legal groun ds

upon which sui ts may, and have been, dismissed.

LESSONSLEARNEDCJA has learned that publicity is key if a lawsuit is to

have impact . We have had to develop a strategic ap-

proach to involving the media in the process. Th is hasmeant t hat every occasion and every development d ur-

ing the course of litigation must be used as an opportu-

nity to draw attention t o the bigger issues at hand -namely, the existence of impunity in the targe t country

and the U.S., the existence of perpetrators among

us, the value of the testimonial aspect of the trial, an dthe significance of the final judgment , bot h legally and

practically.

Another signif icant lesson is the value for survivors of

the process as much as the outcom e. To individual plain-tiffs, the process of being involved in the law sui t , testi-

fying , and confronting t heir former persecutors is at

le ast as important as winning the case .

Finally, it iscrucial that survivors have realistic expecta-

tions about what can and cannot be accomplished withthese cases. The reality concerning the difficulty of as-set collect ion, for instance , is one area in which attor-

neys must be candid with survivors, but participants in

these sui ts must be realistic in recognizin g the limita-

tions of civil lawsui ts.

When pursued correctly and cautiously, this tacticcan

prove a valuable asset to the greater global movement

for justice and the respect for rule of law.

15U.S. SupremeCourtclearlystated inRasulv. Bush(124 S. Ct. 2686

(2004)) thatGuantanamodetainees could bringATCA claims. This

will likely include claims of internationalhuman rights violations, in-

cluding torture and war crimes.


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20

ORGANIZATIONSWORKING ON ATCA LITIGATION

Center for Constitutional Rights

New York

www.ccr-ny.org

Center for Justice and Democracy

New York

www.centerjd.org

Earth Rights

Washington, DC

w ww.earthrights.orgw ww.notortureforprofit.org/petition/

International Labor RightsFund

Washington, DC

www.laborrights.org

Human RightsFirst

(Lawyers Committee for Human Rights)

New York, Wa shington DC, Oaklandw ww.humanrightsfirst.org

www.globalpolicy.orgwebsite of article s & informatio n

regarding the ATCAwww.globalpolicy.org/intljustice/atca/atcaindx.htm

ORGANIZATIONSTHATWORKTO BRINGHUMAN

RIGHTS ABUSERSTO JUSTICE

Amnesty International

www.amnesty.org

Center for Human Rights & Const i tut ional Law

www.centerforhumanrights.org

Center for Justice and International Lawwww.cejil.org

May ISpeak Freely?ww w.mayispeakfreely.org

Redress Trust

Universal Jur isdiction Information Network

Londonww w.redress.org

www.u-j.info.

Derechoswww.derechos.org

Human Rights Watchwww.hrw.org

Transnational Institu te - Bring Pin ochet to Justice!

www.tn i.org/pinoche t/index.ht m

Interna tional Criminal Tribunal

for the former Yugoslavia

www.un .org/icty/

Interna tional Criminal Tribunal fo r Rwanda

www.ictr.org

Documents

Reparations (English)