To
the surprise of some observers, however, the Supreme Court has declined
to actually overturn the Filartiga precedent. And recent developments
like those in New York indicate that it remains a potent weapon for
human rights groups. The New York-based Center for Constitutional
Rights, which helped bring the Li Peng suit, has been particularly
active in pursing Alien Tort claims. The Center organized the case
against Radovan Karadzic and has recently helped bring cases against
multinational corporations for violations of labor, environmental
and human rights.
To date, the impact of these cases has probably been greater in theory
than in practice. The ruling opened U.S. courts to a very small group
of foreign plaintiffs: those victims able to identify and serve process
on violators of human rights not protected by sovereign immunity,
yet capable of committing a violation of international law. Filartiga
and its progeny have thus created an opening too narrow to fit lawsuits
against those most responsible for human rights violations abroad.
Nor is it clear that plaintiffs who win judgments will ever see the
money. Most of the judgments that have been entered remain unpaid.
One of the few cases in which plaintiffs have collected was against
Cuba, for the shooting down of two civilian planes. Some in
Congress have supported relaxing the rules so that plaintiffs may
more easily seize foreign assets, but the Clinton Administration resisted
moves in that direction, which it feared would undermine the safety
of U.S. assets abroad. The Bush administration has yet to indicate
its policy on this question but seems likely to support the rights
of plaintiffs to collect, particularly against states that support
terrorism.
For the moment then, the principal benefit of the Alien Tort suits
for plaintiffs may be the publicity they can generate. A suit brought
in the U.S. is likely to capture the attention of the U.S. government
and international media. In the case of the lawsuits based on Holocaust-era
crimes, publicity has been essential. Lawsuits against Swiss banks
and German corporations generated so much attention that the U.S.
government felt obliged to intervene; Deputy Treasury Secretary Stuart
Eizenstat was instrumental in negotiating billion-dollar settlements
in both cases. The fact that several of the lawsuits ultimately were
thrown out by the courts was not decisive. By that time, public and
political pressure made settlement inevitable. Plaintiffs hope that
a new wave of lawsuits against Japan for abuses during the Second
World War will generate similar pressure on Japanese authorities and
industry to settle. But the Holocaust suits point to one of the paradoxes
of the Alien Tort phenomenon: the lawsuits are far more effective
against liberal democracies, sensitive to the pressures of world public
opinion, than they are against the repressive regimes who pose the
greatest threat to human rights today. |
