Human Rights Accountability
Amnesty International and other credible sources estimate that at least 1,000 human rights abusers now live in the United States. Dozens more visit every year. They come from more than 70 countries, including Bosnia, Cambodia, Chile, El Salvador, Ethiopia, Guatemala, Haiti, Honduras, India, Liberia, Pakistan, Peru, Rwanda, Sierra Leone, Somalia, Sri Lanka and Vietnam. Only a few dozen of them have been deported, in addition to the 48 who were deported or extradited for Nazi-era crimes. No human rights abuser has been criminally prosecuted for torture in the U.S., despite the fact that Congress adopted a law in 1994 that gives U.S. courts jurisdiction to prosecute such crimes.
Nonetheless, progress is being made in the U.S. for survivors who want to hold their tormentors accountable.
Two laws are enabling that progress. The Alien Tort Claims Act, passed by Congress in 1789, allows non-U.S. citizens to bring civil lawsuits for "torts ... committed in violation of the law of nations or a treaty of the United Sates." Beginning in 1980, U.S. courts have recognized that egregious human rights abuses such as torture violate the law of nations and that claims for such abuses are actionable.
The second law is the Torture Victim Protection Act, which Congress passed in 1991. It extends the right to U.S. citizens to bring claims against individuals "acting under the actual or apparent authority of any foreign nation" for torture and extrajudicial killing.
Since 1980, a total of 17 perpetrators have been successfully sued, of whom four were brought to justice since 2001. Of those, five who had come to the United States with the intention of settling here fled the country rather than face the consequences of a lawsuit. These five perpetrators -- from the Philippines, Rwanda, Haiti, Indonesia and Bosnia -- had their lives substantially disrupted. Another perpetrator, the Philipine ex-dictator Ferdinand Marcos, was required to pay $1 billion.
When Corazon Aquino became president, she determined, and the plaintiffs agreed, that most of that money should be returned to the Philippine government. Nonetheless, the lawsuit played a significant role in persuading the Swiss, and other banks that were holding Marcos' assets in secret accounts, to turn that money over.
Three of the perpetrators successfully sued were high-ranking government officials -- the Bosnian Serb leader Radovan Karadzic, an Indonesian General who had ordered atrocities in East Timor, and a Guatemalan ex-General. They were sued while they were on visits to the United States. All have yet to return. If they did, there is little that could be done to them legally, except that the plaintiffs could try to attach the assets that they carried with them. Yet the fact that they have not returned is a clear signal the lawsuits caused them an embarrassment they do not wish to repeat.
One of those who was sued in this way was Hector Gramajo, a Guatemalan ex-general who was grooming himself to run for the presidency of his country. He had come to the United States to obtain a degree from the Kennedy School at Harvard. On his graduation day, he was served with the lawsuit. He immediately returned to Guatemala, where his party decided not to choose him as their candidate for president. His inability to travel in the United States without embarrassment was a liability. Gramajo's political ambitions were nipped in the bud by the lawsuit.
In July 2002, three Salvadoran torture survivors won a $54.6 million judgment against Salvadoran Generals Vides Casanova and Garcia, both former Ministers of Defense who had retired to Florida in 1989. A Florida jury determined that they bore command responsibility for the torture endured by the plaintiffs between 1979 and 1983. The case set major precedents concerning the doctrine of command responsibility in civil cases. The legal team has already secured $270,000 (most of which the plaintiffs will devote to bringing more cases) and expects to obtain more.
The case has triggered discussions in El Salvador about the need to confront the past and to hold individuals accountable. One member of Congress in El Salvador has called for the repeal of the 1993 Amnesty law. Maria Julia Hernandez, director of the Human Rights Office of the Archdiocese of El Salvador stated that: "The process and the verdict in this case are accomplishments in a long and most difficult fight against impunity. It is a case in which all the victims of El Salvador who have not been able to be plaintiffs emerged and were represented by these brothers and this sister. Such administration of justice is what we have always hoped to realize. Now each of us has been touched in a way that inspires us to continue on this road."
On October 15 of this year, a Miami federal jury awarded $4 million to the Cabello family for the torture and murder of their brother, Chilean economist Winston Cabello. Cabello was killed on October 17, 1973 -- almost 30 years earlier to the day. The civil jury found Armando Fernandez Larios, in his role as a member of the "Caravan of Death" -- a military squad acting under orders of Augusto Pinochet -- liable for crimes against humanity, extrajudicial killing, torture, and cruel, inhuman or degrading treatment or punishment. The trial marks the first time that any Chilean has been tried in the United States for Pinochet-era crimes committed in Chile. It is also the first jury verdict in the United States holding a defendant liable for crimes against humanity.
In September 2003, a lawsuit was filed against Alvaro Saravia, named in numerous credible reports as having played a key role in the 1980 assassination of revered Salvadoran Archbishop Oscar Romero. Saravia has been living in the United States since 1986. This case could lead to his arrest and deportation and to the uncovering of information about the intellectual authors of the crime.
These cases send a powerful message to officials, soldiers, and others around the world that if they commit atrocities, they will not be able to visit or live in the United States 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 United States 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 the United States. 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.
Sandra Coliver is the Executive Director of the Center for Justice & Accountability (CJA), based in San Francisco. She brought several of the cases described in this article. Contact her at firstname.lastname@example.org. A version of this article appeared on www.americas.org