coliver reparations update 2007

8/14/2019 Coliver Reparations Update 2007

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by Sandra Colliver & Moira Feeney

edited by Liam M ahoney

Reparat ions

Using civil lawsuits to obtain reparation for survivors of human rights abuses

and to challenge the impunity of their abusers

A Tact ical Notebook published bythe New Tactics Project

of the Center f or Vict ims of Tort ure


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Published byThe Center for Vict ims of Tort ureNew Tact ics in Human Right s Project717 East River RoadMinneapolis, MN 55455 USAwww.cvt.org, www.newtactics.org

Notebook Series Edit orLiam Mahony

Design and copyeditingSusan Everson

2005 Center for Victims of TortureThis publicat ion may be freely reproduced in prin t and in elect ronic form as long asthis copyright not ice appears on al l copies.

DisclaimerThe views expressed in t his report do no t necessaril y ref lect t hose of t he New Tactics in Human Rights Project.The project does not advocate specifi c tact ics or poli cies.


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The Center for Victims of Tort ureNew Tact ics in Human Right s Project

717 East River RoadMinneapolis, MN 55455 USA

www.cvt.org, www.newtactics.org

Author biographies

Lett er f rom the New Tact ics Project Director

Introduction

Strategic context of the tact ic

8What lawsuits against foreign-born humanrights abusers can accomplish

12 How the tact ic may be used in count ries outside t he U.S.14How the tact ic works in t he U.S.

17 Challenges in bringing these lawsuits

18Lessons learned

20Resources


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Sand ra Col iv erSandra Coliver is the Executive Director of

the Center for Justice and Accountability,

based in San Francisco. She has worked in

the human rights field since holding a Ford

Foundation fellowship with Amnesty Inter-national USA in 1979.

Sandra was one of the founding members of

AIUSAs Legal Support Network and a member of AIUSAs Board of Di-

rectors from 1992 to 1996; a founding board member of Human Rights

Advocates; and the Founding Chair of the International Human Rights

Committee of the Bar Association of San Francisco (19841990, 2002

present). She clerked for the Ninth Circuit Court of Appeals and was in

private practice for several years in San Francisco, specializing in criminal,

constitutional, and international law.

In 1990 she moved to London to direct the law program of Article 19, the

International Center Against Censorship, and opened a U.S. office in

1993. She moved to Sarajevo in 1996 to work for the U.N. H igh Commis-

sioner for Human Rights, the Organization for Security and Cooperation

in Europe, and the International Crisis Group, an advocacy think tank

chaired by former Senator George Mitchell. From 1999 to 2001 she served

as Senior Rule of Law Advisor to IFES, an NGO dedicated to promoting

fair elections and accountable governments.

Sandra has taught human rights, humanitarian law, international law, and

womens rights at Boalt Hall, Golden Gate Law School, Santa Clara Law

School, and Washington College of Law, and has written extensively on

these issues. She has managed or participated in human rights and rule of

law programs in Russia, the Balkans, Central and Eastern Europe,

Mongolia, Morocco, Southeast Asia, Southern Africa, and Rwanda. She

received her law degree from Boalt in 1981.

M oir a FeeneyMoira Feeney is a Staff Attorney at CJA. She

is currently the lead attorney in CJAs lawsuit

against former Haitian death squad leader

Toto Constant, and also works on CJAs case

against Colonel Dorlien, a member of the

High Command with responsibility for the

Raboteau massacre, and a winner of $3.2

million in the Florida Sate Lottery in 1996.

She has been involved in human rights work related to Haiti since 1998,

and worked under the supervision of Haitis leading human rights attor-

neys to prepare criminal and civil litigation against perpetrators of politi-cally motivated rape. Previously, she coordinated election observation

delegations to Haiti for Global Exchange, an international human rights

organization. Moira serves as the primary media contact for all CJAs

current cases. She has also led and organized educational travel, focused

on issues of global justice, to H aiti, Cuba, Nicaragua, and Chiapas, Mexico.

She has a law degree from UC Hastings College of the Law, and a B. A. in

international relations from Brown University. She is fluent in Haitian

Creole, French, and Spanish.

Cont act Infor m ationThe Center for Justice &Accountability

870 Market StreetSuite 684

San Francisco, CA 94102

phone 415.544.0444

fax 415.544.0456

website www.cja.org

email [email protected]

The Cent er f or Justi ceand Account abi l i t yCJA works to deter torture and other se-

vere human rights abuses around the worldby helping survivors hold their persecutors

accountable. CJA is the leading U.S. center

representing survivors in civil suits against

persecutors living in or visiting the United

States. Several of the cases discussed in this

paper were litigated or initiated by CJA.

CJA has pioneered an integrated approach

to the quest for justice that combines legal

representation with referrals for medical and

psychosocial services, and with outreach to

schools, community organizations, and the

general public. CJA currently representsmore than 40 survivors from count ries in-

cluding Bosnia, Chile, China, East Timor,

El Salvador, Haiti, Honduras, Somalia, and

one Asian and one Middle-Eastern country

(the specific countries must remain confi-

dent ial until the cases are filed).

CJA was established in San Francisco in

January 1998. Its creation was inspired by

legal and psychological work with victims

of torture and other grave human rights

abuses. The need for justice consistently

emerges as an integral component of a

victims healing process, and becomes par-

ticularly acute when the victims abuser en-

joys impunity in the same country where

the victim has sought refuge. CJA was es-

tablished to respond to the need for justice

by combining victim outreach and rehabili-

tation with legal advocacy and representa-

tion.


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March 2004

Dear Friend,

Welcome to the New Tactics in Human Rights Tactical Notebook Series! In each notebook a human rights

practitioner describes an innovative tactic used successfully in advancing human rights. The authors are part of

the broad and diverse human rights movement, including non-government and government perspectives,

educators, law enforcement personnel, truth and reconciliation processes, and womens rights and mental health

advocates. They have both adapted and pioneered tactics that have contributed to human rights in their home

countries. In addition, they have utilized tactics that, when adapted, can be applied in other countries and

situations to address a variety of issues.

Each notebook contains detailed information on how the author and his or her organization achieved what theydid. We want to inspire other human rights practitioners to think tacticallyand to broaden the realm of tactics

considered to effectively advance human rights.

In this notebook we learn how civil laws can be used to hold torturers and other human rights abusers

accountable, and to gain reparations for survivors. The Center for Justice and Accountability (CJA) represents

survivors using the Alien Tort Claims Act (ATCA, dating back to 1789) and the Torture Victim Protection Act

of 1991, which gives both U.S. citizens and non-citizens alike the right to sue human rights abusers who live in

or visit the U.S. CJA has effectively used these acts to help end the possibility of abusers using the U.S. as a safe

haven, to assist survivors in gaining reparations, and to break the silence that has enabled abusers to live in

impunity. This notebook demonstrates how countries with laws similar to the ATCA can put them to work to

end such impunity. Activists around the world can consider ways to use their own civil laws, and to target

abusers who travel to the U.S. by building collaborations among diverse groups that include activists in the U.Sand abroad, refugees, lawyers, and people skilled in using the media.

The entire series of Tactical Notebooks is available online at www.newtactics.org. Additional notebooks will

continue to be added over time. On our web site you will also find other tools, including a searchable database of

tactics, a discussion forum for human rights practitioners, and information about our workshops and symposium.

To subscribe to the New Tactics newsletter, please send an e-mail to [email protected].

The New Tactics in Human Rights Project is an international initiative led by a diverse group of organizations

and practitioners from around the world. The project is coordinated by the Center for Victims of Torture (CVT)

and grew out of our experiences as a creator of new tactics and as a treatment center that also advocates for the

protection of human rights from a unique positionone of healing and reclaiming civic leadership.

We hope that you will find these notebooks informational and thought-provoking.

Sincerely,

Kate Kelsch


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6

all are subject t o deportation investigations. In one case,

the lawyers who w orked on the civil case are helping

others in t he defendant s home countr y to p rosecut e

him f ollow ing his deportat ion f rom t he U.S.

These lawsuits have contribut ed to t he worldw ide move-

ment against impunit y by:

1) helping ensure that t he U.S. does not remain a safehaven for such perpetrators,

2) holding individual perpetrators accountable for

human right s abuses,

3) providing victims wit h some sense of off icial ac-knowledgment and reparation,

4) establishing an historical record of what happened,

5) contributing to the development of international

human right s law, and

6) building a constit uency in the U.S. that support sthe application of int ernat ional law in such cases,

wh ile creating an awareness about human rightsviolations in all regions of the w orld.

These cases, when viewed w ith o ther anti -impunit y ef-

for ts around the w orld, are also:

7) helping to create a climate of deterrence, and8) catalyzing eff orts in many countries to prosecute

their ow n human r ight s abusers.

These eight objectives wi ll be discussed at greater lengthlater in the notebook.

Str ategic cont ext of t he tact icHUMAN RIGHTS ABUSERS IN THE U.S.

The Center f or Just ice and Accoun tabil it y (CJA) est i-

mates that several hundred human rights abusers

people with substantial responsibility for heinousatrociti esnow live in t he U.S., and t hat several dozen

high-level perpetrato rs visit every year. This est imat e

is supported by the U.S. Immigrat ion and Customs En-

fo rcement Bureau.1

Int roduct ionWhen speaking about his involvement as one of the

plaintif fs in Romagoza, Gonzalez, & M auricio v. Garcia

& Vides Casanova, a case against t wo high ranking Sal-

vadoran generals for t ort ure commit ted in 19791983,Carlos Mauricio said, I am part icipating in t his case in

order to help send a message to mili tary leaders around

the w orld t hat, if they commit atrocities, they will not

be able to visit or l ive in the U.S. wit h impunit y. They will

always have to fear th at someone someday may rec-ognize them and bring them to justice. I am involved in

this case to try to deter people, especially mili tary people

in El Salvador and elsewhere, from commit ti ng at roci-ti es in t he fut ure. Let me tell you, many milit ary off ic-

ers in Salvador dream of living in t he United Stat es

aft er they ret ire. M y case and ot her cases are sendin g

a powerful message to them. Resolutions passed bythe U.N. General Assembly and report s by human rights

organizations are effective in publicizing what hap-

pened, but they do not send a st rong message to mili -

tary leaders, who th ink t hey are above the law. Theymay be above the law in their home countries, butth ese lawsuit s tell t hem that t hey are no tabove the

law in this count ry.

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

who moved to or w ere visit ing t he United Stat es have

been successfull y sued by their victims in civil proceed-

ings. The victims have been able t o use two U.S. lawsone enacted in 1789 as part of t he very fir st Judiciary

Act, t he ot her enacted i n 1991that enable victi ms

of certain egregious human right s violation s, wher-

ever commit ted, t o br ing civil l awsuit s in U.S. federal

court against th ose responsible for t he violat ions, solon g as the defendant s are physically present i n t he

Unit ed States.

Of the 18 defendants, two were current h igh-ranking

government of fi cials: the Bosnian Serb leader Radovan

Karadzic, and Lui Qi, Mayor of Beijing. Nine were former

high-ranking civilian or milit ary off icials who cont inuedto exercise considerable inf luence. Several of the de-

fendant s were part icularly sadist ic, hands-on tort urers.

Because these suit s are civil i n nature, the perpet ratorscannot be held i n jail. In some cases, however, evidence

uncovered during t he civil lawsuit has been used by U.S.

government authorit ies to arrest and deport the per-petrator; some plaint if fs have been able to recover sub-

stant ial assets f rom t he defendant s.

And in all of the cases the perpet rators have been ex-posed as human righ ts violat ors, and subjected t o the

shame and ost racism their act ions deserve. Their lives

have been disrupted; most f led the U.S. after the law-

suit s were fi led against t hem. Of t he fou r remaining,

Carlos Mauricio, plaintiff in CJAs case against the two Salvadoran

generals, demands justice outside of the Fresno Federal Court House.


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Reparat ion s: Using civi l law suits against hum an rig ht s abusers 7

These perpetrators come from more than 70 countries,including Bosnia, Cambodia, Chile, El Salvador, Ethiopia,

Guatemala, Haiti , Honduras, India, Liberia, Pakistan,

Peru , Rwanda, Sier ra Leone, Somalia, Sri Lanka, Syria,

and Vietnam. Only a few do zen have been deported,

nearly all of them since 2000 (approximately 90 peoplewere previously deport ed or extradit ed for Nazi-era

crimes). Most are low -level abusers; nearly half are Hai-

tian.2

The majority of perpetrators are identi fi ed during the

asylum p rocess, wh en t hey declare that th eir f ear of

persecut ion i s based on t heir involvement wi th a unitthat part icipated in human right s atrocit ies. Despit e

the fact that Congress adopted a law in 1994 that gives

U.S. court s jurisdiction t o prosecute such crimes,3 no hu-

man rights abuser has been criminally prosecuted inthe U.S. for to rture.

THE PRESENCE OF HUMAN RIGHTS ABUSERS

CAUSES THEIR VICTIM S EXTREM E ANXIETYIt is important t o understand that survivors of at roci-ti es of ten l ive in the same communit ies as their perpe-

trators. In New York City, for example, the Haitian

commun it y is home t o a man at t he center o f a CJAcase. Emmanuel Tot o Constant was the out spoken

head of FRAPH (the Armed Revolut ionary Front f or t he

Advancement of Haitian People, and also the Creole

word for to hit or to beat ), Haitis most brutal para-mili tary organization. The Haitian people hold Constant

responsible for a w idespread and systemati c campaign

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

1996, the Hait ian commun it y in New York d iscovered

that Constant was openly wo rking in t he real estat ebusiness in Queens and Brookl yn. An art icle in t he At -

lantic Monthlyof June 2001 describes the traumaticexperience of one Haitian f amily when Constant ap-

peared at t heir door asking i f he could t our their house.4

The numerou s victims of FRAPH who were fo rced to

take refuge in the U.S. must l ive with t he daily fear ofmeeting t he man responsible for t heir tort ure.

Another of CJAs clients, Oscar Reyes, encountered

former Honduran mili tary intelligence chief Lt. Col. Juan

Lpez Grijalba at a reception f or Honduran digni taries.Unable to speak out at the time, he and his wi fe had to

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

CJA, fi led a lawsuit against Grijalba f or t heir unlawfularrest and brut al t orture in 1983. Based on t heir t esti -

mony and that of other CJA witnesses, Grijalba was

deprived of his income and deported to Honduras,

where he faces a criminal investigation.

CJAs founder, a licensed clin ical social w orker w ho has

counseled torture survivors, has found t hat t wo t hings

consistent ly emerge as int egral part s of the healing

process: a need for j ust ice, and an anxiet y regardingperpet rato rs who li ve in the U.S.

THE LEGAL BA SIS OF THE CIVIL LAWSUITS

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

1789, allows aliens non-U.S. cit izensto br ing civillawsuits for tort s...committ ed in violation of the law

of natio ns or a t reaty of th e United Sates.

The ATCA w as largely unused unt il 1980, when a fed-eral Cour t o f Appeals issued it s landmark judgment in

the case of Filartiga v. Pena-Irala. The case involved a

Paraguayan cit izen, Dolly Filart iga, who moved to t heU.S. aft er her bro ther was tort ured and k illed by Pea,

a Paraguayan police chief . When Dol ly discovered t hat

Pea was visit ing the U.S., she and her f ather brought

an action against him, under the ATCA, for t orture andwrongful death. The Court of Appeals ruled that stat e-

sponsored torture violated the law of nations and that

the tort urer washosti humanis, an enemy of all man-

kind.

While t his was considered a ground-breaking judgment ,

it did not lead to a flood of cases. The court set a high

standard: the violation had to be of a rule t hat com-manded the general assent o f civilized nat ions. Sub-

sequent court s elaborated f urt her requi rements. The

violation must be of a norm of int ernational law t hat is

specific, universally condemned, and obligatory. Casesmay be pursued against individuals only if th ey have

been personally served while physically present wi th in

the territ ory of the U.S. Cases are barred b y the stat-

ute of limitations unless filed within 10 years of the

violat ion, unless there are extenuating circumstancesi.e., a threat of retaliation during t hat period, or a lack

of access to necessary evidence.

Concerning most claims, the defendant must be a gov-

ernment off icial or agent, or have worked tog ether

with government agents. A death squad leader, for

instance, would be liable on ly if he received supportfrom government f orces. In the absence of any form of

1 ICE Fact Sheet, http://www.ice.gov/graphics/news/factsheets/

nosafehaven.htm. See also Amnesty International, USA, quoting an im-

migration service source: USA: A Safe Haven for Torturers (April 10,

2002). Available at http://www.amnestyusa.org/stoptorture/

safehaven.pdf.

2 For information on the number of Haitians placed in deportation

proceedings as human rights abusers, see Alfonso Chardy, 2 More

Haitian Torture Suspects are Arrested in S. Florida Pending Deporta-

tion, Miami Herald, Dec. 20, 2003, available at http://www.miami.com/

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

3 18 U.S.C. 2340A.

4 David Grann, Giving The Devil His Due, Atlantic Monthly, June

2001.


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The most important thing is

to speak out and not let yourself be

dominated by silence. But its not just speak-

ing and opening wounds. We have to know when

its a good time to share our experiences, and how. We

need to find a proper listening space among people who are

willing to do something in response to what they hear. Weneed to find spaces that can generate mechanisms or channels

for justice, and not just put these people in jail but prevent this

kind of activity from happening again, and isolate torturers

who come to the United States in search of a paradise.

Juan Romagoza, on the significance ofRomagoza,

Gonzalez, & Mauricio v. Garcia & Vides Casanova,

a case against two high ranking Salvadoran gen-

erals for torture committed in 19791983.

state action, individualsmay be held liable only

fo r genocide, crimes

against humanit y,

war crimes, and

slavery and sla-very-like prac-

tices.

Whi le someform of state

act ion is usually

necessary, someof fi cials have im-

munit y: if a defen-

dant has head-of-

state, diplomatic, orother immunit y, a case will

be dismissed.

Some judges and academics raised concerns about theATCAs application t o modern-day human right s viola-t ions. In 1991, to conf irm t he acts agreement w ith the

Filartigaline of cases, and to ext end it s jur isdicti on t o

U.S. citi zen as well as alien plaint if fs, the U.S. Congressadopted the Tort ure Victim Prot ect ion Act (TVPA). The

TVPA provides that an individual w ho under actual or

apparent authori ty, or color of law, of any foreign na-

tion subjects another to t orture or extrajudicial killingis liable for damages in a civil action. The legislative

history th at accompanies the TVPA makes clear t hat

th e act was int ended to confi rm t he causes of act ion

for off icial tort ure and extrajudicial killing, and did not

supercede the ATCA, which cont inued to have ot herimportant uses.

The TVPA is narrower t han t he ATCA in t hat it appli es

only to tort ure and extrajudicial killi ng, and may be

used only against i ndividuals who act under actual or

apparent authorit yof any foreign nat ion. The TVPA

clearly cannot be applied against individuals act ing un-der the authorit y of, or in concert w ith , the U.S. govern-

ment.

In 2004, the U.S. Supreme Court aff irmed the Filartigaline 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 def ined wi ththe specif icity comparable to the featu res of the 18th-

century paradigms we have recognized. 6 The Court

denied t he part icular arbit rary arrest claim advanced

by Dr. Alvarez in t he case, but did so in a manner t hatdoes not appear to undermine the Filartigaline of cases.

The Court cited, w ith approval, cases wh ich permit ted

ATCA claims for violat ions of int ernational norms that

are specif ic, universal and obli gator y. 7 These cases

have ruled t hat claims of genocide, war crimes, crimesagainst humanit y, slavery and slavery-like practi ces,

tort ure, disappearance, summary execution, and pro -

longed arbitrary detention are action able under the

ATCA.

In addition t o f oreign-born human right s abusers, the

ATCA has been invoked against corporat ion s that do

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

ment of f icials and agents. While our tactic concerns onlyforeign-born human right s abusers, these other cases

are worthy of notice, and provide important context.

To dat e, some 40 cases have been f iled against corpo-rate defendants. In one case, the defendant, Unocal

Corporat ion, agreed to sett le for an undisclosed sum t o

be paid to a fu nd t o benefit the communities of Bur-

mese villagers who had been victimized by Unocals prac-ti ces. The sett lement has been widely int erpreted t o

signi fy Unocals acceptance that it likely w ould have

lost the case. Twenty-three of the other cases have

been dismissed for a variety o f r easons.8 Five have sur-vived mot ions to dismiss, and eight others are await ingdecisions on such mot ions. Al l cases against U.S. of f i-

cialsincluding Henry Kissingerhave so far been dis-

missed, though a few decisions are st ill on appeal. Onecase was successfull y bro ugh t against a p rivat e com-

pany that held, without legal authorit y, a cont ract w ith

the U.S. government to operate a detention facilit y for

aliens in the U.S. It appears likely that ATCA will beused successfully against U.S. government contractors,

as well as state and local government of fi cials.

What law suit s against f oreign-born

hum an ri ght s abusers can accom pli sh1. THEY CAN ENSURE THAT THE U.S.DOES NOT REMA IN A SAFE HAVEN FOR

HUMAN RIGHTS ABUSERS

The ATCA cases have result ed in t he removal or depar-

tu re of numerous human right s abusers who w ere ei-

ther high-level or directly involved in committingatrocit ies. Of t he 18 individuals successfull y sued using

the ATCA, one was deported based on informat ion un-

covered by t he plaint if fs, one was extradited, one died,

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

know, returnedincluding five who had moved here tosettle.9 Only five of t he 18 remain in the U.S.10 Of those,

one has been denaturalized and is in detention pend-

ing t he outcome of deportation proceedings, and one isthe subject of a deportat ion investigation based largely

on evidence uncovered during the course of ATCA cases.

These 18 cases have clearl y det erred numerous abus-ers f rom coming to t he U.S. Foll ow ing the ATCA case

against Paraguayan police chief Pena-Irala, for ex-

ample, the U.S. consulate in Paraguay report ed a de-

crease in U.S. visa requests by Paraguayan of f icials and


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Reparat ion s: Using civi l law suits against hum an rig ht s abusers 9

milit ary off icers.11 The Shah of Iran was the last majorhuman r ight s abuser to openly seek medical t reatment

in t he U.S. Although Baby Doc Duvalier of Haiti came to

Miami in 1986 aft er he was forced into exile, he quickly

left fo r France. Salvadorans wat ching fo r t he entry o f

Salvadoran mi lit ary off icers who used to tr avel regu-larly to M iami and southern California report t hat t hese

of fi cers are no longer traveling here. And immigration

agents have conf irmed that certain human right s abus-

ers f rom Cent ral America stopped coming t o the U.S.aft er mid -2002. Is it a coincidence that a major ATCA

victory against tw o Salvadoran former defense min is-

ters was obtained in July 2002?

Of course, ridding t he U.S. of human r igh ts abusers ar-

guably only export s the prob lem, unless the receiving

count ry is wil ling and able to criminally prosecute theabuser. Most count ries are not wi lling or able, and abus-

ers simply ret urn t o their home count ries where they

cont inue to enjoy immuni ty. On the ot her hand, most

live less well t han t hey did i n the U.S. and most havelost stat ure, money, and in fl uence as a result of thelawsuits.

The fi ght against impunit y wou ld, in most cases, bebetter served if the human rights abusers could be

criminall y prosecut ed in the U.S. However, most U.S.

prosecutors lack t he pol it ical w ill , and in m ost cases,

the legal authori ty and/or adequate evidence, to pros-

ecut e. Given the current administrati ons wi llin gnessto violate internati onal law in the prosecuti on of it s

war on terror, virtually all human rights organiza-

tio ns are reluctant t o advocate at t his tim e for laws

th at w ould enhance th e powers of t he U.S. govern-

ment to prosecute foreign-born human rights abusers.

2. THEY CAN HOLD HUMAN RIGHTS

ABUSERS ACCOUNTABLE

Though th eir punishment does not fi t t he severit y ofthe crimes, ATCA cases demand account abil it y, a com-

ponent of bot h just ice and deter rence. The cases ex-

pose what perpetrators have done. They causeembarrassment . They can limit the careers of foreig n

of fi cials whose advancement depends on t he abilit y to

travel to t he U.S. without being greeted wi th revealing

news stories. These cases have conveyed the strongmessage that people who commit atrocities wi ll notbe

able to visit or li ve in the U.S. wit h impunit y. This can be

a substant ial penal ty, especially for persons from coun-

tr ies wi th close relations wi th the U.S. or whose citizensof ten t ravel or r etire to t he U.S., such as Indonesia andseveral count ries in Latin America.

Hecto r Gramajo, a Guatemalan ex-general, f led t heU.S. after being served with an ATCA complaint in 1991.

He had been preparing t o run f or h is count rys presi-

dency, and had come to t he U.S. to obt ain a degree

from Harvard Universitys KennedySchool of Government. Af ter be-

ing served w it h the lawsuit

on hi s graduat ion d ay, he

immediately returned to

Guatemala w ith his U.S.visa revoked, and his

party did not choosehim as its presidential

candidate. His inabilit y

to t ravel to t he U.S.

without embarrass-

ment now a l iabil i ty,Gramajo f ound his polit i-

cal ambiti ons thwarted.

Found responsible for acts oftort ure during the Red Terror in

Ethio pia, Kelbessa Negewo lost several jobs,

and was eventually denaturalized and arrested f or de-portati on because of t he judgment in the Abebe-Jira

case.

Non-monetary consequences have been imposed inother cases as well, including an unreported case in 1987

which caused a Chilean tort urer to avoid competing in

the Pan-American games in Indiana for f ear of having

his horse seized as part of an ATCA case.

For me personally, the

verdict provided a strong sense of

healing and closure. For almost 25 years,

I had carried a bag of heavy rocks with meeverywhere I went. The day that I testified, I le

that bag of rocks with the U.S. justice system

Francisco Acosta, one of the witnesses in the case agai

Alvaro Saravia, a former captain in the Salvadora

air force and a current U.S. resident, held liab

for his role in organizing the assassination of

Archbishop Oscar Romero. Source: The

Tiding, October 1, 2005.

5 124 S.Ct. 2739 (2004).

6 Alvarez, at 276162.

7

Id. at 2766.8 These include that the claimfor instance, arbitrary detention for less

than a dayis not actionable under the ATCA; that the case should more

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

was committed; that the plaintiffs have failed to exhaust remedies in the

country where the violation was committed; that the claims are barred by

the statute of limitations; and that the courts assertion of jurisdiction to

hear the case could interfere with foreign affairs.

9 Norberto Pena-Irala (Paraguayan police chief) was deported; Suarez

Mason (Argentinian general) was extradited; Ferdinand Marcos (Philip-

pines former President) died. Five defendants visiting the U.S. were

successfully sued, and each left shortly after the lawsuit was filed: Karadzic

(Bosnian Serb leader), Lumintang (Indonesian general), Gramajo (Gua-

temalan former Defense Minister), Kavlin (Bolivian corporate vice-presi-

dent); Assasie-Gyimah (Ghanaian security officer). Five defendants who

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

Imee Marcos-Manotoc (daughter of Philippines President Marcos),

Barayagwiza (Rwandan radio station owner), Panjaitan (Indonesian gen-

eral), Avril (Haitian former President), and Vukovic (Bosnian Serb war

criminal).

10 Garcia and Vides Casanova (Salvadoran generals and former Defense

Ministers), Fernandez-Larios (Chilean major and death squad mem-

ber), and Saravia (Salvadoran death squad henchman).

11 Information supplied by Prof. William Aceves.


10/20

10

Lawyers also cont inue to pursue the collect ion of assetsin past judgments, and are increasingly going aft er de-

fendants who have assets that may be reachable by

U.S. court s. Success in collecting these assets wil l f ur -

ther increase the cases det errent impact . In the case

of a perpetrator wit h no assets, a portion of his or hersalary or pension may be subject to at tachment .

The collection of ATCA monetary judgments, however,

has been dif fi cult . It is believed t hat money has beencollected in only t wo cases: approximately $1 milli on

from the estate of Philippine President Ferdinand

Marcos,12 and less than $1,000 f rom General Suarez-Mason of Argentina.

Plaint if fs and att orneys in cases result ing in default judg-

ments have att empted to enf orce some of these pastpending judgments. Dolly Filartiga and her f amily, fo r

example, are still working t o enforce the judgment re-

ceived in t heir groundbreaking case, and recently fi led

a new enf orcement case in New York federal court . Ateam of lawyers is also wo rking to enforce the judg-ment in Paraguay.

Effort s have also been made in other pending cases, todate without success. Given the risks involved, it i s dif fi -

cult to find organizations or law f irms who would seek

assets on a cont ingency or pro bonobasis. Non-prof it

organizat ions have not had the resources to success-full y enfo rce judgment s against those w it h assets, es-

pecially when t he assets are hidden out side t he U.S.

In 2003, CJA embarked on a campaign to track and

collect assets. Enl isting lawyers in El Salvador t o searchfor hidden assets, for instance, CJA has so f ar obtained

$270,000 from a Salvadoran general, and is working t oacquire more. In anot her case, CJAspro bonolaw firm

has engaged an int ernational account ing f irm t o fi nd

assets before the complain t is even f iled. We are close

to obtaining nearly $1 mill ion f rom a Haitian perpetra-

tor who won $3.2 million in t he Florida state lot tery.CJA is working to build cases against some of the f inan-

ciers of death squad activit y in El Salvador who l ive in or

regularly visit t he U.S., along wi th those who have fi-

nanced more recent violence in other count ries. If andwhen CJA is able t o gain possession of defendants as-

sets, the majorit y of the f unds will go directly t o t he

plaint if f s; the remainder wi ll cover out-of -pocket ex-

penses incurred by CJA and by t he law f irms that bot hwork w ith us on a volunteer basis and advance some of

the costs.

3. THEY CAN PROVIDE OFFICIAL

ACKNOWLEDGM ENT & REPARATION FOR VICTIM S

AND SURVIVORS OF HUMAN RIGHTS ABUSES

These cases frequent ly help survivors experience a sense

of justice, a sense of meaning in t heir survival, and a

tremendous satisfaction in knowing that they havebrought dignit y to t he memories of t hose who w ere

killed or tort ured.

Plaint if fs, therapists, communit y leaders, and human

right s acti vists have been eloquent in d escribing t he

impact of the cases on t heir own healing processes and

on t heir eff ort s to repair t heir communit ys sense ofloss and injust ice. In t he words of Juan Romagoza, a

Salvadoran to rt ure survivor: When I test if ied, a

strength came over me. I felt like I was in t he prow of a

boat and t hat t here were many, many people rowingbehind. I f elt t hat i f I looked back, Id weep because Idsee them again: wounded, tortured, raped, naked, torn,

bleeding. So, I didnt look back, but I felt their suppor t,

their strengt h, their energy. Being involved in t his case,confronting the generals with these terrible facts

that s the best possible therapy a torture survivor could

have.

Plaintif fs are generally realisti c about the limit s of the

lawsuits, yet gratefu l for t he opportunit y to proactively

pursue justice. Zit a Cabello , a Chilean woman w hose

brot her was kill ed and a plaint if f in a CJA case wit h a

positive jury verdict, said This lawsuit cannot reducethe pain I feel over the death of my brot her, Winston.

Nothing wi ll ever diminish that pain. But w orking w ithCJA has given meaning t o my pain. That i s a tr emen-

dous gif t.

The website www.nosafehaven.org cont ains addit ional

testimony by plaintif fs and a brief submitt ed to t heSupreme Cour t about the impact of ATCA cases on sur-

vivors.

4. THEY CAN SET THE

HISTORICAL RECORD STRAIGHT

For th e plaintif fs involved, and fo r their communit ies

as wel l, these cases are an opport uni ty to correct t hehistor ical record . These suit s are not only abou t w hat

happened, but about who was responsible. As such,

they serve as min iature t rut h commissions.

In many cases the count ry in w hich the atrocities took

place is st ill i n a period o f t ransit ion . Perhaps the judi-

ciary is unable or unwi lling t o pursue liti gation of hu -

man righ ts abuses, or t here has been no opp ort unit y

12 A $150 million settlement was approved in the Marcos case, but the

Philippine courts blocked the transfer of Marcos assets that were also

being claimed by the Philippine government, and the settlement has

never been funded. All Holocaust assets cases, of course, included ATCA

claims, and billions of dollars in settlements have been achieved. Several

of the lawyers involved in these cases, including Professor Burt N euborne,

have credited the foundation of ATCA jurisprudence as a crucial element

in their efforts to obtain justice for victims of the Holocaust.


11/20

Reparati ons: Using civi l lawsuit s against hum an rig ht s abusers 11

fo r a truth commission. In the case of Hait i, for example,

the commission w as largely under-f unded and unable

to give all victims an opport unit y to come fo rward, es-

pecially those already forced int o exile. Part icipat ing inan ATCA case is for many plain t if fs their only chance toput on t he public record an account of w hat t hey suf -

fered. It is also, fo r many defendants, th e only docu-

mentation of t heir role in the atrocities.

5. THEY CAN CONTRIBUTE TO THE

DEVELOPMENT OF HUM AN RIGHTS LAW

These lawsuit s have establ ished impor tant legal p re-cedents which have expanded the kinds of human

right s violations which may be subject t o suit , and have

made it possible to sue corpo rati ons and contracto rs

working w ith t he U.S. government . Cases against indi -

vidual perpetrat ors have established, in ho ldings thatwil l likely with stand post-Alvarezscrutiny, that sev-

eral violations constit ute t orts in violatio n of the lawof nations, including torture, summary execut ion, pro-

longed arbitr ary detent ion, w ar crimes, disappear-

ances, genocide, crimes against humanity, and

slavery-like practices. Decisions have also recogni zed

that ATCA appl ies to commanders, co-conspirators, andaiders and abet ters, as wel l as to the actual perpet ra-

to r; t o or ganizations and corporat ions as well as to

ind ividu als; and t o pr ivate persons as wel l as to gov-

ernment actors. These decision s may have an impactbeyond U.S. borders.

ATCA cases have also given legitimacy to the use ofint ernat ional human rights law in U.S. courts generally.

They have demonstrated that customary international

law can, and in certain circumstances must , be di rectl y

appl ied by U.S. court s. It seems lik ely t hat ATCA deci-sions wi ll be used by U.S. courts in non-ATCA cases in-

voking int ernational human rights law in other contexts.

Wit h the Supreme Court increasingly, in cases like Atkins

v. Virginiaand Lawrence v. Texas, considering int erna-

tional law in it s decisions, this expanding body of int er-national ju risprudence is likely to be inf luential in many

ot her areas.

ATCA cases are now a regular part of international

human right s curricula at law schools, are taught in in -ternat ional relations courses, and are regularly ad-

dressed at judicial educat ion seminars on internat ional

law. They have demonstrated t he relevance of learn-

ing not only about international law but about a hostof subsidiary issues crucial t o t he decisions of human

rights cases, including t he act of state and polit ical ques-

ti on doctrines, immunit ies, forum non conveniens, ex-haustion of domestic remedies, equitable tol ling o f t he

statutes of limi tat ions, standing t o sue, and theories of

liabil it y (command responsibilit y, aiding and abett ing,

conspiracy, vicarious liabi lit y, direct l iabil it y).

6. THEY CAN BUILD A HUMAN RIGHTS

CONSTITUENCY IN THE U.S.

ATCA cases against ind ividual perpet rators, on behalfof oft en very sympathetic plaintif fs, put a human faceon human rights violations, and have att racted consid-

erable media coverage that it self highl ight s the need

for the ATCA. These cases, along w it h survivor test i-mony, compelli ngly il lustrate t hat t he ATCA provides

survivors of human righ ts violati ons wi th not only an

import ant means but, in deed, the onlymeans for re-

dress in the Uni ted States. As U.S. cit izens become com-fortable with the notion that the ATCA should be

applied against f oreign human rights abusers, it should

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

the long r un, that t he same standards should be ap-

plied to U.S. agents when they aid and abet such viola-tors, and t o U.S. corporat ions doing business abroad in

collaboration wi th repressive regimes.

7. THEY CAN DETER HUMAN RIGHTS ABUSES

When linked with other anti-impunity effort s around

th e world , ATCA cases cont ribut e to a climat e of de-

terrence. The f act t hat ATCA cases have caused somehuman rig ht s violators to leave the U.S. and have dis-

suaded others fr om ent ering is only a modest fo rm of

success. When view ed toget her w ith developments in

ot her count ries, how ever, ATCA has helped to sub-stant ially close off parts of t he worl d habit ually en-

joyed by crim inalsfo r reti rement , healt h care, and

education of t heir chil dren, and simply as an escapefrom crime and poverty in their home countries. The

eff ects of th e U.S. government s rejection o f t he In-

ternati onal Criminal Court and of ot her international

just ice mechanisms would cert ainly be all t he moreegregious were the ATCA not available to address

some of the most culpable human right s abusers on

U.S. soil .

CJA Litigation Director Matt Eisenbrandt and Pro Bono counsel Nico

Van Alestyn of Heller Ehrman stand with members of the Salvadoran

community outside the Fresno federal courthouse.


12/20

12

8. THEY CAN CONTRIBUTE

TO TRANSITIONA L JUSTICE

ATCA cases can serve as a catalyst for the process of

t ransit ional just ice in the home count ry. They can bring

hope to activists who have labored wi thout signi fi cant

success, and to survivors who f eel soli dari ty wit h theplaint if fs. By demonstrating that impunit y can be chal-

lenged, ATCA cases can stimulate discussion about the

crimes of the past, and bui ld support for bringing per-

petrators to justi ce in their own domesti c court s.

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

against two former Ministers of Defense fueled de-bate in El Salvador regarding repeal of the count rys

amnesty law. The legal t eams success in securing an

init ial $270,000, and t he f act that Salvadoran lawyers

are now helping the U.S. legal t eam t rack dow n furtherassets, are causing consternation among Salvadors top

mil it ary of f icers. The case also has encouraged more

to rture survivors to come forward w it h their stories.

Other ATCA cases have had simi lar ef fects.13

Maria Julia Hernandez, director of th e Human Right s

Off ice of the Archdiocese of El Salvador, clearly states

the impact of these civil cases on t ransit ional just ice inth e defendant s home count ry: The process and t he

verdict in t his case are accomplishment s in a long and

most dif f icult f ight against impunit y. It is a case in which

all t he victims of El Salvador emerged and were repre-sented by these brot hers and t his sister. Now each of us

has been touched in a way that inspires us to continue

on this road. Fr. Jos Tojei ra, President of UCA, t he

Jesuit universit y in San Salvador comment ed: It is im-

port ant t o pursue int ernational alt ernatives as a meansto pressure the Salvadoran justice system. These Salva-

dorans brought their case in t he U.S. not to hurt El Sal-vador, not fo r propaganda, but to help const ruct an El

Salvador that i s based on t he trut h. To f ail t o pu rsue

th e commanders endangers th e rule of law and t he

foundat ion of our society.

The case also encouraged w it nesses to come f orw ard

with evidence against tw o Salvadoran perpet rators who

have lived in the U.S. fo r more than 15 years: Alvaro

Saravia, an organizer of the 1980 assassination of Arch-bishop Oscar Romero, and Col. Nicolas Carranza, head

of the Hacienda (Treasury) Poli ce, who was forced out

of the milit ary in 1985 because the high level of at roci-ti es fo r which he bore responsibilit y made it un com-

fo rt able for t he U.S. to continue sending mi lit ary aid.

The verdict in the Romero case, rendered on Septem-

ber 3, 2004, has already had a substant ial impact in ElSalvador. For t he f irst t ime, key representati ves of the

Catholic Church have called for revisions to the amnesty

law and a reopening of t he criminal investigation int o

the assassinat ion . Oth er churches and leaders joined

the call, and President Saca has had t o defend his oppo-sit ion several times in t he media.

The U.S. judges finding that Roberto DAubuisson,

founder of the ARENA party (which remains in power),

was the mastermin d of the assassinat ion has cre-ated furt her pressure to reopen the investigation. The

impact of t hese cases is due, in part , to t he tremendous

respect t hat U.S. federal cour ts command in El Salva-

dor, reportedly even more, for i nstance, than such in-ternat ional bodies as the Inter-American Commission

on Human Right s. This respect is, apparent ly, also shared

by the Catholic Church. The Archbishop of San Salvadorstated that t he verdict should help establ ish Archbishop

Romeros martyrdom, proving w ho w as involved in t he

assassinat ion plo t .

HOW THE TACTIC M AY BE USEDIN COUNTRIES OUTSIDE THE U.S.There are two main ways in which the tactic is t ransfer-

able. First, lawyers and activists may explore the viabil -ity in their own count ries of bringing similar lawsuits orof developing t he capacit y to do so. The best prospects

fo r success exist wi thin count ries that are host to high-

ranking or numerous foreign-born human rights abus-ers and have civil or criminal laws that could be used for

bringing cases against the perpetrators. For i nstance,

civil suits against human rights abusers for atrocities

commit ted abroad have been fi led in t he UK using En-gli sh tort law as the basis for t he exercise of civil j uris-

diction. Although none of the cases has yet been

successful,14 one is current ly on appeal and t here are

good prospects that the case against an individual

hands-on tort urer w ill be upheld. In France and Bel-gium, a number of criminal complaint s have led to civil

reparat ion proceedings through adhesion processes.

Second, act ivists in t he U.S. and around the world can

track human righ ts abusers who li ve in or are likely to

visit the U.S. and compi le cases against t hem, f ind ingplaint if fs (who can live anywhere), wit nesses, and ot her

evidence. A person w ith in fo rmation t hat a non-U.S.-

born human ri ght s abuser li ves in t he U.S. or plans to

visit can contact t he Center for Justi ce and Account abil-

it y. CJA wi ll evaluate t he lawsuit s viabili ty, along w ithits likelihood of promot ing human rights and benefi t-

13 The Abebe-Jira case had a large effect on public opinion in Ethiopia

and on the commitment of the Ethiopian government to move forward

with trials of former officials of the Dergue. Plaintiffs counsel gave a

nationally televised address about the case in Addis Ababa in March

1994.

14 They have been dismissed on grounds of immunity, insufficient nexus

with the U.K. (a forum non convenienstest), failure to come within the

limitation period, and inability to serve the defendant. See Al-Adsani v.

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

of case on immunity grounds).


13/20


ing a broad population o f survivors. If CJA has the avail-able t ime and resources, and determines that a case is

both legally viable and likely to have broad beneficial

impact, it wi ll t ake the case, or wi ll seek a law school

clini c or experienced pr ivate lawyer to do so.

CJA offers all services free of charge. We enter into

wri tt en cont racts with our clients whereby we under-

take to represent t hem full y and rigorously throu gh

tr ial. In turn, if we w in a case and are able to secure thedefendant s assets, we are ent it led t o be reimb ursed

for costs expend ed on t he case. CJA has won six cases

since April 2002, with judgments to taling $254 million,but has yet t o col lect any assets. Assets are discussed at

greater length above.

Three other non-pro fi t organizations are involved inusing the Alien Tort Claims Act to bring lawsuit s against

human r ight s abusers: t he Center f or Consti t ut ional

Right s (CCR, at www.ccr-ny.org), Earth Right s Interna-

ti onal (ERI, at w ww.earthrights.org), and t he Interna-tional Labor Rights Fund (ILRF, at w ww.laborright s.org).CCR brought the Filart iga case, mentioned above, which

was the f irst ATCA human right s case, and since then

has been involved in nearly a dozen ATCA law suits.

In 1996 CCR, toget her w it h ERI and ILRF, brought the

case against Unocal, the f irst case ever f iled in a U.S.

court against a corporation f or abuses of int ernationalhuman rights (this case is described above). CCR is now

pioneering cases against U.S. government of f icials and

cont racto rs who work w ith the U.S. government. It re-

cently f iled a lawsuit against CACI and Titan, tw o large

companies that provided interrogators to work for theDepartment of Defense in t he Abu Ghraib prison. CCR

cont inues to work on a few cases, started many yearsago, against t op f oreign of f icials who visit ed the U.S.,

includ ing Li Peng, t he Chinese Premier, and an Indone-

sian general. CCR is, how ever, no l onger t aking new

cases against individual f oreign-born human rights abus-

ers.

ERI has been involved in several lawsuits against corpo-

rat ionsUnocal, ChevronTexaco, Uni on Carbide and

Shellwhose explo it ation of natural resources has ledto human right s abuses against populations living near

their installations. ILRF has focused on lawsuits against

corpo rati onsExxonMo bil , Coca-Cola, DelMon t e,Drummond, and Occidental Petro leuminvolving at-

tacks against labor unionists.

CJA works closely with these sister organizationspartnering, f or i nstance, in the defense of t he ATCA

from U.S. government and corporate att acks and in

the development of beneficial case-law by f iling friend-

of -the-court briefs. None of t hese three organizat ions,

SAN FRANCISCO San Franciscos Center for Justice

and Accountability (CJA) announced Friday, Oct. 5 a $66

million federal court judgment against former Indonesian

Army Chief of Staff Johny Lumintang for his role in wide-

spread human rights abuses in East Timor. General

Lumintang received notice Friday of the ruling by United

States Magistrate Judge Alan Kay of the federal district court

in Washington, D .C.

Plaintiffs in the suit included six civilian victims of the vio-

lence that followed East Timors overwhelming vote for in-

dependence from Indonesia in a 1999 U.N.-sponsored

referendum. They filed suit against General Lumintang in

March 2000 under federal laws permitting victims of grave

human rights violations abroad to sue perpetrators of such

violations who enter the United States. Lumintang was served

with court papers during a visit to Washington, D.C.

In March of this year, Judge Kay heard three days of testi-

mony from the four surviving plaintiffs and several expert

witnesses in a Washington, D.C. federal courtroom. Two of

the victims were killed during the post-referendum violence.

The plaintiffs were represented by CJA, a San Francisco

human rights law organization, New Yorks Center for Con-

stitutional Rights (CCR), and the Washington, D.C. law

firm Patton Boggs, LLP.

The plaintiffs suit focused on Lumintangs role in what the

court called a coordinated program of massive destruction

unleashed by the Indonesian military following the over-

whelming popular vote for independence from Indonesia in

a 1999 U.N.-sponsored referendum.

The court found that Lumintang, as Army Vice Chief of

Staff at the time, was responsible for scrutinizing army op-

erations, strategic planning, and military discipline. The court

also noted that Lumintang issued a telegram to Army troops

viewed as signaling the campaign of violence, and that he

signed a training manual distributed to troops in East Timor

that included instructions in abduction, killing, kidnapping,

and terror.

It has been established . . . that Lumintang has responsibil-

ity for the actions against plaintiffs and a larger pattern of

gross human rights violations, wrote Judge Kay. [H]e

along with other high-ranking members of the Indonesian

militaryplanned, ordered, and instigated acts carried out

by subordinates to terrorize and displace the East Timorese

population...and to destroy East Timor infrastructure fol-lowing the vote for independence.

Excerpt from a press release, October 5, 2001: U.S. Court Holds

Indonesian General Liable for $66 Million for East Timor Abuses


14/20

14

how ever, is current ly accept ing cases against individualforeign-born human r ights abusers. When asked about

the possibi lit y of a law suit against such an abuser, they

refer people t o CJA. Simi larly, when people contact us

about l awsuit s in which the other groups might be in-

terested, w e make referrals to t hose organizations.On occasion we also refer cases to law school human

rights law clin ics.

HOW THE TACTIC WORKS IN THE U.S.To work effectively, the tactic requires four essential

steps:

1) tracking down perpetrators in the U.S.,2) finding appropriate plaintiffs and witnesses,

3) bringing civil lawsuits against the perpetrators, and

4) working with the authorit ies to have the perpe-

t rato rs arrested, prosecut ed, and deport ed.

TRACKING DOWN PERPETRATORS

CJA f inds perpetrators living in t he U.S. by using a vari-

ety of methods, the most import ant being out reach torefugees, communi ty leaders, human r igh ts act ivists,and others who may have know ledge of these people.

If we obtain inf ormation t hat a perpetrato r is living in

a certain city, we collaborate wit h private investigatorsand somet imes the immigrat ion service to establ ish the

persons whereabou ts.

Refugees in t he U.S. are of ten the best sources of inf or-mation about perpetrators who have settled here,

wh ile acti vist s in the home count ry are of ten kno wl -

edgeable about perpetrato rs who will be traveling t o

the U.S.as part , for instance, of o f f icial delegati ons,

for f undraising purposes, for medical care, or to attendpolice or other training programs.

Human rights activists in a count ry where atrocit ies have

been commit ted can ini tiate this tacti c by tracking t he

tr avel pl ans of , and collecti ng evidence against , top

perpetrators. They can contact CJA t o f ind out wh ich

perpet rato rs are subject t o legal action in the U.S. andwh ich are prot ected by diplomatic, head-of-stat e, or

some other fo rm of immunit y. Assuming adequate in-

fo rmati on, CJA can f ile a law suit against a tr aveling

perpetrator w ith only a few days not ice.

FINDING APPROPRIATE PLAINTIFFS

To f ile a civil lawsuit , CJA must f ind p laint iff s who werevictims of t he perpetrator. We do this by spreading in-

format ion qui etly th rough various network s. We are

careful t o use only trusted net works so as not to t ip of f

th e defendant bef ore we f ile the case. If a defendantlearns of a case before he is formally served with a

complaint, he may flee, destroy evidence, intim idate

wit nesses, or h ide his assets.

Generally,

we disseminate

informat ion t hrough solidarity groups, tort ure treat-ment cent ers, refugee communit ies, and asylum law -

yers who have handled cases from the count ry at issue.

We ask t hese intermediaries if they know of potential

plaint if fs, and ask them to request t hat any such plain-ti ff s cont act us. We never ini ti ate t his direct contactourselves because we want people to be recommended

to us by someone they t rust. We do not want to appear

to be soliciting clients, and we do not want to appear tobe applying pressure on t hem to join t he lawsuit . Survi-

vors must want to contact us, and must be interested in

learning about their options.

When a potential plain ti f f contacts us, we di scuss very

carefull y wit h him or her w hat is involved in being a

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

th is in person and w ith a trusted th ird person present,

and we also provide the information i n writ ing in t hepot ential p laint if fs nati ve language (see the sample

memo on page 19).

It is important t hat t he interested persons understand

several basic aspects of the case. We discuss the f ol low-

ing point s in detail w ith potent ial clients:

1) The defendant cannot be sent to jail merely as aresult of the case, although t here is a possibil it y

that evidence produ ced at t rial could be used to

arrest and deport the defendant.

2) It is unlikely that w e wil l be able to obtain thedef endant s assets; in any event, t he desire t o do

so should notbe a reason f or a person t o jo in one

of these lawsuits.3) We can keep the persons identit y fully confiden-

tial duri ng t he initial stages of the lawsuit but, if

t he defendant decides to defend h imself, and is

wil ling t o participate in a trial, then he has a rightto know the identities of the plaintiffs and wit-

nesses. At t his point , a plaintif f may drop out of a

lawsuit if he or she wants to maintain a conf iden-

t ial ident it y. Accord ingly, we always discuss securi ty

First, I am participating in

order to seek justice, and to help put

an end to the culture of impunity that exists

in El Salvador. Second, I want to be the voice for

people who were never able to speak out, for those

who do not want, or are unable, to take their cases to

court. Not only those who have been tortured and never

want to talk about it , but also those who were killed during

torture. Third, I am looking for a psychological healing of

the wounds that torture left on me. I need an explanationand that is why I need a day in court....Whatever the

outcome of my case, just bringing the lawsuit has been

a victory.

Carlos Mauricio, one of the lead plain-

tiffs in CJAs first El Salvador

case


15/20


concerns at length, and encourage interestedpeople t o consider t he risks to themselves and their

fami lies, especially if any live in a defendant s home

coun t ry. Interested persons somet imes think t hat

we can protect t hem, or that t he U.S. court s wil l do

so. We make very clear that neither we no r t hecourt s can provide protection, although we will do

all we can to obt ain appropriate police protection

if they should be threatened. In some of our cases,

clients and w itnesses have received threats of physi-cal harm.

4) These cases take a long timegenerally tw o to

four years from t he filing of the complaint unti l afinal judgment.

5) There always exists the possibil it y that a case will

be lost. Cases can be dismissed based on technicali-

ties that have litt le or nothing t o do wi th t he claimsmerits. Potent ial plaint if fs have to be aware of all

possible outcomes.

BRINGING A CIVIL LAW SUIT

Once CJA has located an appropriate def endant , and

has conf irmed t hat victims of the defendant or surviv-

ing relat ives of victims want to be involved in a suit , we

evaluate wheth er there are any insurmou ntable ob-

stacles to bringing the suit (see the section on chal-lenges, below) and w hether the case wil l advance an

important human r ights objective and benefit a broad

group of survivors.

If w e decide t hat the case is legally viable and advances

impor tant human rights objectives, we prepare a com-

plaint for fi ling. At th is stage we may need to conductadditi onal fact-f inding t o ensure that w e are likely to

prove the case at t rial. We do not need, at t his stage, to

have assembled all of the necessary evidence, but we

like t o have at least one expert w itness and a goodsense of how we will f ind necessary witnesses and ot her

evidence.

EXAM PLE: EL SALVADOR

In 2002, CJA won a $54.6 million judgment against two Salva-

doran generals, both former Ministers of Defense, who had

retired to Florida in 1989. Two years later, CJA won a $10

million default judgment against Alvaro Saravia, a key orga-

nizer of the assassination of Monsenor Oscar Romero. In 2005,

CJA will go to t rial against former Salvadoran military com-

mander Nicolas Carranza.

Tracking down the perpetrators

Although the two generals were part of the ruling junta of El

Salvador, and thus high-profile, they were able to live in obscu-rity in the U.S. by settling in prosperous communities in Florida

that did not include Salvadorans from outside the elite class.

Their whereabouts were discovered when a TV station broad-

cast a show on immigrants who had done well in Florida, and

featured one of the generals. A viewer reported this sighting to

a human rights organization, the Lawyers Committee for Hu-

man Rights, which investigated and found both the televized

general and the other general living in South Florida.

During the trial against these men, journalists began discussing

the presence of other Salvadoran human rights abusers living

in the U.S. These reports, along with the help of the Salva-

doran community, led to the discovery that Saravia was selling

used cars in Modesto, California, and that Carranza was re-

tired and living in Memphis, Tennessee.

Finding plainti ffs and witnesses

Through the strong leadership of grassroots groups within El

Salvador and within the U.S. Salvadoran community, that

community rose to the challenge of gathering plaintiffs and

evidence against the perpetrators. CJA attorneys have worked

hard to cultivate relationships with these groups in order to

maintain communication at every stage of the cases develop-

ment. O ur clients and supporters helped to spread the word

about our cases, and clients spoke publicly as well as in small

meetings about the benefits and challenges of these cases.

Bringing the civil lawsuits

CJA has partnered with outstandingpro bono law firms on each

of the Salvadoran cases. Each firm donates on average more

than 2,000 hours of attorney time to the cases, as well as

$100,000 or more in out-of-pocket costs.

Both generals decided to defend and appear personally at trial,

making it clear that they did not want to give up their South

Florida lifestyles. In the case filed against Saravia for the assas-

sination of Archbishop Romero, the defendant got wind of the

suit and went underground. Nonetheless, the attorneys suc-

cessfully argued for a default judgment against him. Carranza

has also decided to defend and the pending case will go to a

jury trial.

Working with authorities

The evidence presented against the generals, and the publicity

attracted by the trial, motivated the U.S. immigration service

to investigate grounds for deporting the two men. Officials

have been eager to locate defendant Saravia since his presence

in California become publicized by CJAs case. Publicity dur-

ing the trial in Fresno, California, encouraged more witnesses

to come forward with helpful information, and authorities are

closing in on him. Finally, defendant Carranza became a U.S.

citizen in 1992. CJA is providing information to the proper

authorities to help them exercise their authority to de-natural-

ize and deport him.


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16

The actual trial can last from a few days to severalweeks, depending on t he number of wi tnesses and

plaint if fs involved. If t he defendant hires a lawyer, it

usually takes two to three years from the date that

the complaint is filed t o t he actual t rial. If the defen-

dant does not defend h imself, it can sti ll t ake as long asone to tw o years to complete the process of obt aining

a default judgment.

Af ter a successful jury verdict is entered, the final stagein t he lit igat ion is the collect ion of assets. This process

can be expensive and compli cated. CJA has found i t

useful at t his stage t o involve atto rneys wi th specialexpertise in t he area of asset collection.

SEEKING TO HAVE THE DEFENDANT

CRIM INALLY PROSECUTED OR DEPORTED

Despit e the usefu lness of bringing civil claims against

these perpetrators, the suits still do not amount to

criminal prosecut ions. Although depriving individuals of

their wealth can be an effective form of justice, theult imate exercise of justi ce is their i ncarceratio n f orthe crimes they have commit ted against the people of

their own communit ies. To t his end, CJA recognizes the

importance of w orking wit h immigration authorit ies,especially in cases where deport ation may lead to crimi -

nal prosecution in the home country. There are also

other benefi ts to w orking wit h these off icials, includ-

ing but not limit ed to t he sharing of information.

In the U.S., immigrat ion authorit ies can arrest a non-

cit izen fo r a material misrepresentat ion on his or her

immig ration fo rms. Many f orms ask i f applicants ever

participated in the persecut ion of others. People whoanswer no, and who are show n by CJA t o be m isrepre-

senting themselves, can be arrested by the immigra-tion service and placed in deportation proceedings. If a

depor tat ion is cont ested, which it usually is, the person

receives a trial wh ich is simi lar to a criminal t rial in many

ways. And if the misrepresentation is clear cut, the per-

son can be criminally prosecuted f or perjury.

In December 2004, Congress passed a law giving the

immigrat ion service new authorit y to deport non-U.S.

cit izens who have participated in t orture or extrajudi-cial kil ling out side of the U.S. One Ethiopian manwho

in a 1994 ATCA case brought by the Cent er for Const i-

tu ti onal Right s was proven to be a tort urerhas beenarrested and placed in deport ation pro ceedings, and

more than 200 suspected abusers are being investi-

gated. Recently, using this new law, a coalit ion of groups

and individuals was able t o persuade U.S. authori t ies todeny a visitors visa to Narendra Modi, Governor of

Gujurat, India, because of his close involvement in t he

anti-M uslim riot in 2002. Regrett ably, these immig ra-

ti on laws leave open the possibi lit y of abuse. CJA works

At th is stage we also seek to enlist t he parti cipat ion o fa private law f irm to work on the case pro bono. A case

requi res hundreds, even thousands, of hours of att or-

ney tim e, and t he costsif the defendant decides to

defend t he suit are likely t o exceed $100,000.

Once the complaint is f iled and personal ly served on

the defendant, the future of the suit depends on

whether t he defendant chooses to defend. As these

suit s are only civil act ions, a defendant can choose tosimply ignore the complaint and f ace a default judg -

ment . Defendants who are only visit ing the U.S. when

served w ith the suit are more likely to do t his, particu-larly if t heir contacts wi th the U.S. are minimal. It is

CJAs experience, however, that ind ividuals who want

to maint ain a certain l if estyle in t he U.S. will hire a

lawyer and respond t o t he law suit . Such cases almostalways go t o jury t rial.

Pre-t rial work includes several tasks:

draft ing responses to mot ions to dismiss fi led bythe defendant s lawyer,

pursuing civil discovery (locat ing w itnesses and evi-

dence), draft ing int errogato ries (questions for opposing

counsel to answer about the evidence that w ill be

int roduced) and responding to in terrogator ies,

taking depositions of the defendant and the

defendant s wi tnesses, and preparing plaint if fs andplaint if fs witnesses for their depositions by oppos-

ing counsel; preparing plaint if fs and w itnesses psychologically

fo r what they can expect at t rial.

The legal team behind the successful judgment against Alvaro Saravia

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

right starting with the back row): Matt Eisenbrandt of CJA, Russel

Cohen of Heller Ehrman, Nico Van Alestyn of Heller Ehrman, Clare

T.OHoyne of Heller Ehrman, Patty Blum of CJA, and Almudena

Bernabeu of CJA.


17/20


with immigration lawyers and agents to encourage

them t o in vesti gate def endants in our cases, and onoccasion is able to provide exculpatory inf ormat ion t hatpersuades them t o close an investigation w hen appro-

priate.

In additi on, t he Department of Justi ce can init iate a

criminal prosecution f or t orture pursuant t o a 1994 law

that makes to rture commit ted ou tside the U.S. after

1994 a crime that can be prosecuted in the U.S. Althoughthe DOJ has yet t o exercise it s author it y in t his area,

with proper guidance from human right s groups such as

CJA t his law could be used productively to achieve a

higher level of accountability.

CHALLENGES INBRINGING THESE LAWSUITSThe number of ATCA/TVPA cases brought against ind i-

vidual perpetrators pales in comparison t o t he number

of human r ight s abusers who now live in or visit the U.S.

There are several reasons why such a limit ed numberof cases have succeeded. Many relat e to a lack of avail-

able resources, but o thers are int rinsic to any jud icial

process.

The first dif ficulty is that of find ing the human right sabusers. This can be easy if t he def endant has been

outspoken or if the particular refugee communit y is

suff icient ly t ight -knit. But some defendant s are expe-rienced in keeping a low prof ile. Some have changed

their names, some are even believed to have under-

gone plast ic surgery. Such cases requ ire addi t ional re-

sources, including pr ivate investigators. Oft en it is simplynot possible t o locate perpetrat ors believed to be in

the U.S.

Second, it is oft en dif fi cult to fi nd victims or wit nesseswi lling t o part icipate in a lawsuit . This is especially the

case if secur it y remain s a genuine concern. Peopl e in

the U.S. oft en have family members sti ll li ving at home

who are vulnerable t o reprisal, and there are criminal

net work s that operate even in the U.S. CJA has beenadvised, for example, t o be ext remely carefu l about

bringing cases against d efend ants f rom Guatemala

and Colombia. The more recent th e crimes, th e more

dangerous the defendants and their criminal net-works.

Evidence gat hering is also a challenge, especially con-cerning abuses that happened many years ago. How-

ever, expert t estimonyincluding that of human rights

repor tersis admissible to establish patterns of abuse.

Next, plaintif fs and witnesses are l ikely to be

retraumat ized by the process of telli ng t heir sto ries,

although most say that the experience is worth whi le.

There are more than 30 torture treatment centersth rough out the United Stat es, and prof essionals atth ese centers have expressed t heir w ill ingness to pro-

vide services to plaint if fs and w it nesses free of charge.

More t han half of CJAs clients have received servicesf rom t hese centers.

Asset collection presents uncharted and challenging ter-

rit ory f or many of these cases. This can be an extremelyexpensive endeavor, wit hout guarant eed result s. And

depending on the defendant s sophisticat ion, assets are

easily moved of f shore or put under another name.

Gloria and Oscar Reyes brought a lawsuit against Honduran former

military commander Grijalba.

Before the trial started, I

couldnt sleep. I felt fear knowing that the

generals would confront me. I wasn't frightened

of them so much as of how my body might react. I was

afraid of how I would feel being face to face with them again,

so close.I had a lot of problems with insomnia; I had more

frequent bouts of depression than I normally do. I was afraid for my

family in El Salvador, and I still am afraid. But my mother and my

family have accepted that, and theyve told me that. They used to

wonder why was I getting myself into these problems again, and causing

problems for them, too. It was a tremendous internal challenge. But

little by little, talking with them and others has helped me to clarify my

thoughts, and strengthen my conviction in carrying through with

this case, and to see the long-term historical impact of this case.

Juan Romagoza, regarding the psychological preparation for

and significance ofRomagoza, Gonzalez, & Mauricio

v. Garcia & Vides Casanova: a case against two

high ranking Salvadoran generals for tor-

ture.


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18

Alt hough CJA has generally had a positive relationshipwi th immigrat ion of fi cials, th is area also presents chal-

lenges. Government agencies are bureaucrat ic and po-

litical. Other agencies, including the CIA and State

Department, occasionally become involved in these

cases.

Finally, one of t he greatest dif fi cult ies in br inging a suc-

cessful ATCA case is the ongoing challenge t o t his area

of law. The recent 2004 Supreme Court rul ing on Sosa v.

Alvarez-Machaindid NOT resolve several potent ial l e-

gal chal lenges to ATCA claims.15 Cases can be dismissed

if t hey are found t o violate the statut e of limit ations(claims must be filed wi thin t en years of the crime, but

courts have extended t his period for equi table reasons-

i.e. when t he defendant was absent f rom the U.S., or

vict ims and w it nesses were deterred from b ringing asuit due to a well-founded fear of repr isal). They can be

dismissed if t he defendant is found t o have immunit y

by virtue of stat us as a current head of state or f oreign

minister, or by virt ue of diplomatic functions in the U.S.Court s may determine that t he plaint if fs could h ave,and therefore should have, brought the suit in t heir

home count ry. There are several ot her legal grounds

upon w hich suits may, and have been, di smissed.

LESSONS LEARNEDCJA has learned t hat pub licit y is key if a lawsuit is to

have impact. We have had t o develop a str ategic ap-

proach t o involving the media in the process. This has

meant t hat every occasion and every development dur-ing t he course of lit igation must be used as an opport u-

nity t o draw at tentio n t o t he bigger issues at hand -

namely, the existence of impuni ty in the target count ry

and t he U.S., the existence of perpetrat ors among

us, the value of the testimonial aspect of the trial, andthe signif icance of t he final judgment, bot h legally and

practically.

Another sign if icant lesson is the value for survivors of

the process as much as the out come. To individual plain-

ti ff s, the process of being involved in t he lawsuit , test i-

fying, and conf ront ing t heir f ormer persecut ors is atleast as import ant as winning t he case.

Final ly, it i s crucial t hat survivors have realistic expecta-

tions about what can and cannot be accomplished w iththese cases. The reality concerning the di ff iculty of as-set collection, fo r instance, is one area in wh ich attor-

neys must be candid wi th survivors, but part icipants in

these suit s must be realisti c in recognizing t he lim it a-ti ons of civil lawsuit s.

When pursued correctly and cautiously, this tactic can

prove a valuable asset t o t he greater global movementfo r justi ce and the respect fo r rule of law.

15 U.S. Supreme Court clearly stated in Rasul v. Bush (124 S. Ct. 2686

(2004)) that Guantanamo detainees could bring ATCA claims. This

will likely include claims of international human rights violations, in-

cluding torture and war crimes.


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Sample memo provided to CJA clients in their native language

BEING A PLAINTIFF IN A LAWSUIT

Do I qualify to be a plaintiff in the case?

If you were tortured or are the parent, child, spouse, brother or

sister of someone who was killed, you may be able to join the

lawsuit as a plaintiff. Being a plaintiff would mean that you are

personally accusing the person or organization that we sue (the

defendant) of being responsible for what happened to you or your

relative, and asking the court to require the defendant to pay amoney penalty. As a plaintiff, ordinarily your name would be ident i-

fied on all papers filed with the court, and thus the defendant and

the public would be able to know that you are involved. However,

as explained below, you may be able to keep your identity secret, if

you are concerned for your safety.

Will I get any money if I become a plaintiff?

There is a chance you will be able to recover money as compensa-

tion for what happened to you or your relative, although this is

unlikely. There have been many cases brought in the United States

by people who have been tortured or who lost family members in

violence that occurred in other countries. In almost all of these

cases, the plaintiffs have not received any money. There are two

reasons. First, some cases have been rejected by the courts on legalgrounds. Second, we are only entitled to get money from the defen-

dants themselves and the defendants generally do not have any

money or property in the United States. If their money is in another

country it is very difficult for us to get it.

What are the reasons why I might want to be a plaintiff?

Participating in a case allows you the chance to seek justice and to

have a U.S. court hold accountable people who were responsible for

the abuse you or your relative suffered. The case can help establish

an historical record of responsibility for terrible human rights atroci-

ties. After we file a case, we make efforts to publicize the case to

send a message that perpetrators can be held accountable, and to

provide hope to those who have suffered. A victory will establish

important legal precedent for future cases against human rightsviolators.

If we sue a person, will that person be arrested?

No, at least not directly as a result of the civil lawsuit. We do not

have the ability to put the perpetrator in jail; only government

prosecutors can bring criminal charges against the perpetrator.

Moreover, for most crimes committed abroad to be subject to crimi-

nal prosecution in the United States, the defendant or the victim

must be a U.S. citizen. However, if we win the lawsuit, it is possible

that the U.S. government will revoke the defendant's visa and will

not allow him to return to the United States.

If we sue a person, will he/she be required to attend the trial?

The person we sue is not required to participate in the case. We can

only bring a lawsuit against persons visiting or residing in the United

States, or against an organization that has offices or agents here. If

the defendant is from another country he will likely return to that

country and not defend the case in the United States. In this situa-

tion, we would ask the court to rule in our favor. The court would

likely do this, and then hold a hearing to determine the penalty to

be assessed against the defendant. This penalty will be a certain

amount of money. However, recovering the money from the defen-

dant in this circumstance will be extremely difficult to do.

If I decide to become a plaintiff, what will I have to do?

If you decide to become a plaintiff, lawyers working on the case will

ask for your help in obtaining information and documents that can

be used in court to show what happened to you or your relative. You

may be asked to help lawyers locate and talk to witnesses. The

lawyers will need to discuss important decisions in the case with you.

If the defendant does not participate in the case, the court will holda hearing to assess a money penalty against the defendant. All plain-

tiffs should be present at this hearing, although on occasion we have

arranged for plaintiffs to be available by telephone. If you want to

attend the hearing in person, we (or one of the other organizations

involved) will pay for your travel, housing, and all related costs.

Before the hearing, lawyers will talk with you to ensure that you are

prepared to answer questions.

If the defendant does participate in the case and hires a lawyer you

may have to respond to written questions from the defendant. You

may also have to provide testimony at a deposition. A deposition is

a proceeding in which the defendants lawyer and our lawyers have

the chance to ask you questions about the case. The deposition can

take place in your country near where you live. You will also need toattend the trial in the United States. We will pay for you to travel to

the U.S. and for housing accommodations while here. It is likely

that you will have to give testimony in court at the trial. This means

that you will have to answer questions from one of our lawyers and

from the defendant's lawyer in front of the judge and jury. The

defendant may be present at the trial. We will work with you before

the trial to prepare you for everything that might happen.

How long will the case take?

It is important to realize that this case will take a long time to reach

a conclusion. We probably will not be able to file the case for several

more months. Once we file the lawsuit, the length of the process

will depend on whether the defendant participates in the case. If he

does not, it will likely take one or two years before the case isfinished. If the defendant defends himself in the case and it goes to

a trial, the process could take three years or longer.

If I become a plaintiff, will everyone know that I am involved in

the case?

You will need to consider whether being a plaint iff might jeopardize

your security, or that of your family or other persons. If necessary,

you can file the case under a pseudonym (John or Jane Doe). How-

ever, if the defendant responds to the case, he may request informa-

tion about the identity of the plaintiffs. We can provide you with

another document that explains this process in more detail.

There will likely be significant attention paid to this case in the

press and media. As a plaintiff, you would not be required to speak

with the press and public.

coliver reparations update 2007

Documents