The
new interpretation of the Alien Tort statute opened U.S. courts to
plaintiffs who previously would have found the way blocked by jurisdictional
requirements. Before Filartiga, foreigners whose human rights
were violated abroad had little hope of being awarded compensation
in the U.S. An assortment of new plaintiffs has sought to make use
of the Filartiga ruling. Philippine nationals sued the family
of ex-dictator Ferdinand Marcos for acts of torture carried out during
his rule. An Ethiopian victim sued his torturer and won a large judgment.
A group of Guatemalan peasants successfully sued the country’s
former defense minister, whom they accused of complicity in torture
and extrajudicial killings. Unable to get a hearing in Japan, a group
of Chinese men forced into labor during the Second World War recently
filed suit in the U.S. Plaintiffs relying on the Alien Tort statute
have also sued major multinational corporations for alleged complicity
in human rights and environmental violations.
Just weeks before Li Peng and Robert Mugabe were served, a group of
women who had been raped in Bosnia concluded their case against Bosnian
Serb leader Radovan Karadzic and were awarded a multi-million dollar
settlement by a Manhattan jury.
The eventual outcome of the new lawsuits and the payment of the Karadzic
judgment are uncertain at best. But the trend is clear. Individuals
and groups dissatisfied with political pressure alone are increasingly
resorting to what may be termed "plaintiff’s diplomacy."
United States courts have become frequent (if sometimes reluctant)
participants in the global campaign against human rights abuses.
For plaintiffs seeking compensation, and for the networks of activists
and lawyers who support them, it is not only the broad jurisdictional
reach of the Alien Tort statute that makes U.S. courts attractive.
Pursuing claims in the U.S. offers several other advantages. The jury
system, the class action mechanism, and the availability of punitive
damages all enhance the chances of winning large judgments. Perhaps
most important, a lawsuit in the U.S. provides a forum for the exposure
of human rights violations abroad which might otherwise attract little
attention.
The Filartiga decision, it is important to note, has not made
suing on human rights grounds an easy task. In particular, the courts
have not allowed Alien Tort claims to trump the legal immunity that
is traditionally granted to foreign states and their leaders. In an
important 1989 decision, the Supreme Court rejected the notion that
a plaintiff could bypass the protection of sovereign immunity and
sue a foreign government or a sitting foreign leader directly under
the Alien Tort statute — a precedent that makes the Mugabe case
very unlikely to succeed. (Indeed, on March 4, the U.S. government
provisionally granted Mugabe head of state immunity.) Using a similar
line of reasoning, federal courts threw out lawsuits against the Saudi
Arabian government for torture, and against President Jean-Bertrand
Aristide of Haiti for extrajudicial killing. The courts have also
ruled that plaintiffs can only sue defendants who venture onto U.S.
soil. This requirement effectively immunizes many perpetrators, who
know better than to tempt fate by visiting the U.S. |
