II. The Defendant: A Perpetrator or Organization Present in the United States

U.S. Resident Defendants: CJA generally prefers to bring cases against perpetrators who now live in the United States. Reasons for this include the following:
• Defendants who do not live in the U.S. often do not defend themselves and are willing to accept a default judgment against them. The survivor thus may not have the opportunity to confront the defendant in court.
• A defendant who does not live in the U.S. may not have assets here. U.S. courts can enforce judgments only if the defendant has assets in the U.S. The courts of another country are unlikely to enforce a U.S. judgment unless the country has a treaty with the U.S. concerning enforcement of court decisions.

Visiting Perpetrators: CJA will consider filing cases in appropriate circumstances against perpetrators who are visiting the U.S., if for instance:
• the perpetrator is responsible for widespread or particularly egregious human rights violations, or
• refugees in the U.S. have a strong interest in the suit.

Direct or Indirect Responsibility: The perpetrator does not have to be the person who physically committed the torture or other human rights violation. A person may be held liable if he (or she) was:
• a member of a conspiracy to commit human rights violations (for instance, a death squad may constitute a conspiracy to commit murder).
• an official who ordered or authorized others to commit the violations.
• a military or civilian official who tolerated or failed to prevent abuses by subordinates. This theory, known as “command responsibility,” requires that we prove the following three facts by a preponderance of the evidence:
• The direct perpetrators of the unlawful acts were subordinates of the commander.
• The commander knew or should have known that his subordinates were committing, had committed, or were about to commit abuses.
• The commander failed to take steps to prevent or punish such abuses.

An Official or a Person “Acting in an Official Capacity” or under “Color of Law”: In order to sue for most violations (other than genocide, war crimes and slavery), the violations must have been committed by a government official or a member of the security forces (the military, police, etc.), or by a person acting on behalf of, or together with, such authorities. For instance, in one case, the defendant was found liable for acts of torture that he committed while he was the head of a “neighborhood association”. The plaintiffs demonstrated at trial that the “association” was actually an arm of the government’s security apparatus. However, if the association had not had these connections to the government, then the acts of abuse would be considered a simple crime (for instance, aggravated battery, rape or attempted murder) as opposed to torture.

Corporations: Suits can be brought against corporations for involvement in human rights violations abroad, so long as the corporation had sufficient contacts with the U.S., acted together with a government entity or official and had sufficient control over the violations. However, the fact that corporate officers knew about state-sponsored violations has been held to be insufficient to support liability, even if the corporation directly benefited from the violations. Instead, courts have required active participation by the corporation in the violations. There are a number of suits currently underway against corporations, including Chevron and Royal Dutch/Shell (for violations in Nigeria), and Coca-Cola (for violations in Colombia). If you are interested in a case against a corporation, CJA can put you in touch with the organizations that work in that area.

Heads of State and Diplomats: The perpetrator can occupy any level of official authority, except that he or she cannot be a current “head of state” (president, king or prime minister), a foreign minister, or an official with diplomatic immunity. Within the U.S., sitting ambassadors and consuls are immune, and courts may consider other top officers in the embassies and consulates immune, as well as officials who need to travel to carry out diplomatic duties. Officials who do not have immunity by virtue of their position may acquire “functional” immunity if they visit the U.S. in order to participate in meetings of the United Nations or other intergovernmental organization, or meet with U.S. officials.

Heads of state and other officials are subject to civil lawsuits after they leave office even for human rights abuses that they committed while in office, so long as the state does not assert sovereign immunity on their behalf and so long as the abuses could not fall within their legitimate official duties. For instance, ex-President Marcos of the Philippines was held civilly liable in the mid-1990s for human rights abuses he committed while in office, including torture, summary execution and disappearance.

U.S. Government Officials: Courts generally have rejected, on legal grounds, cases against U.S. officials for complicity in human rights violations abroad. The most recent decision in a case against a U.S. official was in a case against Henry Kissinger and Richard Helms by the family of General René Schneider, Commander-in-Chief of the Chilean Army, who was assassinated in 1970 by coup plotters with the assistance of the National Security Agency and CIA. The case was dismissed under the political question doctrine and on grounds of sovereign immunity.

III. The Violations: Torture, Extrajudicial Killing, and other Grave Human Rights Abuses

Survivors who are United States citizens may only bring suit for two violations under the TVPA:
• Torture – “Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person … when such pain or suffering is inflicted by, or at the instigation of, or with the consent or acquiescence of, a public official or other person acting in an official capacity.”
• Extrajudicial Killing – a deliberate killing not authorized by a court which affords due process protections.

Non-U.S. citizens may bring suit under the TVPA, and also may sue under the ATS for a wider range of violations. The Supreme Court recently upheld the ATS, but limited its application to norms of international law which are “specific, universal and obligatory.” See Sosa v. Alvarez-Machain, ___ U.S. ___, 124 S.Ct. 2739 (2004). Those violations (if committed by an official or a person acting in an official capacity) include:
• Torture.
• Extrajudicial killing.
• Disappearance – An abduction by state officials or their agents, followed by an official refusal to acknowledge the abduction or to disclose the fate of the person abducted.
• Crimes Against Humanity – Torture, murder, disappearance, arbitrary detention or persecution when committed as part of a widespread or systematic attack against a civilian population.
• Cruel, Inhuman or Degrading Treatment – U.S. Courts have generally limited this violation to acts that would be considered “cruel and unusual punishment” under the U.S. Constitution.
• Prolonged, Arbitrary Detention.

The ATS also covers the following crimes, which do not require that the defendant be an official or a person acting in an official capacity:
• Genocide – one of several acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group.
• War Crimes – grave breaches of the Geneva Conventions of 1949 and other serious violations of the laws of war – including murder, mutilation, torture, rape, cruel treatment and the taking of hostages – committed in the course of an international or an internal armed conflict.
• Slavery

IV. Statute of Limitations

V. Issues Of Security And Publicity

Security: CJA can file a case without identifying the plaintiffs’ names. If the perpetrator refuses or fails to appear in the case, CJA may be able to preserve the plaintiffs’ anonymity throughout the case. However, if the perpetrator defends himself, the plaintiffs will need to disclose their names to him (or her), or else may need to drop out of the case at that time. If there is a trial, the public will be entitled to attend and, thus, the identities of the plaintiffs could become public knowledge.For more details on being an anonymous plaintiff, click here.

Media Attention: The media are often interested in these cases. It is up to the plaintiffs to decide whether they want to speak with the media or at public events. If they want to, CJA is happy to help plaintiffs make arrangements, and to provide guidance. However, plaintiffs are never required to speak with the media if the do not wish to do so.

VI. The Goals of an ATCA/TVPA Lawsuit

The human rights cases that CJA brings are civil suits as opposed to criminal actions. (Only the government can bring a criminal action.) Civil suits result in an award of money damages for the plaintiff. Plaintiffs and attorneys have had a difficult time enforcing these judgments in the past, either because (a) the defendant does not have assets, or (b) the defendant has assets but has “hidden” them.

Plaintiffs, however, have made clear that these cases are important for reasons other than money. First, many survivors want to seek justice, and to help put an end to the culture of impunity that exists in their home country.

Second, these cases give plaintiffs the opportunity to tell their stories and the stories of people who were killed or who are unable to speak out for other reasons. For instance, others may not be able to speak out because it could endanger them or their family, they do not want to talk about what happened, an amnesty law prevents cases in their home country, or they do not live in a country where they have the opportunity to pursue such cases. Bringing these cases has had a powerful impact on several clients who have been looking for a way to give some meaning to their pain and the fact that they survived. Speaking truth to power – especially in a court of law – can be tremendously empowering.

Third, these cases can serve as a measure of punishment, even though the punishment is in no way equal with the severity of the crimes. Often the perpetrator’s neighbors and even family members are not aware of what he (or she) has done, or they are able to deny accusations as “mere rumors”. These cases expose what the perpetrators have done in a court of law where the perpetrators are given every opportunity to refute the evidence. CJA also works closely with immigration authorities to place human rights abusers in deportation proceedings.

Fourth, these cases can send a powerful message to officials, soldiers, death squad members and others around the world that, if they commit atrocities, they will not be able to visit or live in the U.S. with impunity. They will know that someone may recognize them and bring them to justice. A surprising number of survivors have told us that they consider this to be a substantial penalty because the wealthy and powerful in their countries look forward to visiting the U.S. for tourism, medical reasons, retirement or to send their children to school. These cases send a message to such people - who thought they were above the law - that they are not above the law in this country. Moreover, the deterrent potential of such cases will grow over time as more and more of these cases are brought in the U.S. and around the world.

Fifth, it is important to note that the establishment of the International Criminal Court does not reduce the need for or importance of these cases. The ICC has several limitations: it will have limited resources; it will be limited to pursuing the top level offenders; it will not be able to examine crimes committed before July 2002; and it will also be limited by political constraints. The United States is not a party to the ICC, so it is highly unlikely that any perpetrator living in the United States will ever be sent to face trial at the ICC. Cases in national courts will remain important to ensure that offenders can be brought to justice.

For a more details about being a plaintiff in a CJA case, click here.

VII. What Are the Consequences if We Win?

A victory results in an award of money damages against the defendant. This judgment may include both an amount to compensate the victims and punitive damages to punish the defendant and help deter others from committing human rights violations in the future. Collecting the money is often difficult. However, if the defendant lives in the U.S. and has a job we can get a court order that all income earned by the defendant above a minimum wage belongs to the plaintiffs. The order can be given directly to the employer so that the employer is obliged to pay the perpetrator’s salary directly to the plaintiffs. If the defendant has a bank account or owns property such as a boat or a building, then we should be able to claim those assets. In most states, the defendant is allowed to keep his home up to a certain value, and in some states, such as Florida, the house, regardless of its value, is fully protected from attachment.

Will the Defendant Go to Jail? 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 prosecution in the U.S., the defendant or the victim must be a U.S. citizen. The main relevant exception is a law passed by Congress in November 1994, which makes torture, wherever committed, a crime that can be punished if the perpetrator comes to the U.S. The U.S. Department of Justice (DOJ) has announced that it will prosecute such cases only if the torture was committed after November 1994. The DOJ has so far detained only one suspect under the torture statute – a Peruvian suspected torturer who came to the U.S. in May 2000. However, the State Department determined that the man had diplomatic immunity and, accordingly, the DOJ released him. CJA provides information, where appropriate, to assist the DOJ in bringing criminal cases against human rights violators, and we are hopeful that DOJ will at some point initiate a prosecution.

In addition, a civil lawsuit can be used as the basis for a criminal case for fraud or perjury if the perpetrator swore on immigration documents that he (or she) had not been involved in the persecution of others. The penalty for perjury is up to five years in prison and a fine of up to $250,000. On August 1, 2004, the DOJ obtained its first criminal conviction for perjury against a human rights abuser, a Cuban who entered the U.S. in 1984 and became a citizen in 1993. While in Cuba, he had administered electric shocks and damaging drugs to political opponents of the Castro regime.

Can the Defendant be Deported from the U.S.? Winning an ATS/TVPA lawsuit does not result automatically in the defendant being deported from the U.S. However, these suits do assist the Department of Homeland Security to bring actions against the perpetrator. The records in these cases can be used to revoke asylum, permanent residency or other status. They can also be used to deport the perpetrator.