Centuries-old law is critical for torture survivors
Sandra Coliver
Wednesday, June 11, 2003

http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2003/06/11/ED267409.DTL

California, with its diverse refugee and immigrant communities, has a particular stake in safeguarding a centuries-old law that allows victims of international human rights violations to sue the perpetrators who live in or visit the United States.

Currently under attack by the Department of Justice, the Alien Tort Claims Act has enabled victims of torture to bring more than 30 foreign human-rights abusers to justice, exposing their crimes, causing some to leave the country and, in a few cases, taking away their ill-gotten wealth. Why do John Ashcroft and President Bush want to take away the ability of torture survivors to pursue human rights abusers? San Francisco's Center for Justice & Accountability, which represents torture survivors in these suits, is concerned that the answer has less to do with the law than with the Bush administration's interest in protecting the unfettered discretion of companies operating overseas to use whatever means they choose.

It hasn't always been that way. In the landmark 1980 Filartiga case, in which a federal court first recognized that foreign torture could be punished under the Alien Tort Claims Act, the Department of Justice submitted a legal brief stating that refusing to recognize a private cause of action under the law "might seriously damage the credibility of our nation's commitment to the protection of human rights." The department stated that when the stringent conditions of the law are satisfied, "there is little danger that judicial enforcement will impair our foreign policy efforts." Since that time, the Justice Department has supported or remained neutral in human rights litigation brought under this law.

But no longer. What has moved Ashcroft to do an "about-face" and exert his muscle against human rights accountability? The answer may lie in the fact that the suit in which he is interested was brought by Burmese villagers against California's oil giant Unocal. The villagers allege that Unocal aided and abetted the Burmese military in enslaving villagers to help construct a gas pipeline in Burma, and in torturing, raping and killing those who stood in the way.

If these allegations are true, we should expect that the U.S. government would support efforts to hold knowing accomplices of the Burmese military junta accountable, given the U.S. government’s strong criticism of the junta for its human rights record. Instead, the administration has intervened to block accountability not only in the Unocal case, but also in other recent suits against oil companies alleging complicity in human rights abuses in foreign countries.

Under the administration's view, Foster City resident and Chilean exile Zita Cabello Barrueto would have no opportunity to bring a claim for crimes against humanity on behalf of her murdered brother's estate against Armando Fernandez Larios, allegedly responsible for her brother's summary killing during General Pinochet's murderous regime. Her case against the former military death squad member will be heard by a Miami federal jury later this year.

Several hundred foreign human rights abusers now live in this country, and several hundred more visit every year. For the more than 500,000 refugees living in the United States who were victims of torture in their home countries -- including 20,000 individuals in the Bay Area alone -- it is terrifying to consider that their tormentors may live or visit here.

The presence of these perpetrators in the United States -- sometimes with the help of the State Department or CIA -- along with the Department of Justice's brief, raise several questions: "Why don't victims of human rights abuses bring cases in their own countries?" The answer is that when the perpetrator lives here in the United States, like Fernandez Larios, the United States may be the only place where their victims can bring them to court.

Additionally, many countries have passed amnesty laws, immunizing the perpetrators from lawsuits. And finally, in most countries where widespread human rights abuses have occurred, those who try to bring the human rights abusers to justice are themselves killed or persecuted.

Also, gaps in U.S. law make it difficult for the immigration service to deport foreign torturers. And the United States lacks the laws necessary to criminally prosecute people who come to this country after having committed war crimes, crimes against humanity or unauthorized killings.

The Center for Justice & Accountability is working to get the laws changed, and to pass information to committed officials of the immigration service to enable them to prosecute or deport more of these torturers and human rights abusers. But until the laws are changed, lawsuits using the centuries-old Alien Tort Claims Act, and the related Torture Victim Protection Act signed into law by the first President Bush, are the only remedy for the torture survivors who live here.

Sandra Coliver is executive director of the Center for Justice & Accountability in San Francisco (www.cja.org), a human rights organization that represents torture survivors in U.S. civil cases against perpetrators.