Filartiga v Pena-Irala

CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
Date10 January 1984
United States, Court of Appeals, Second Circuit.
United States, District Court, Eastern District, New York.

(Feinberg, Chief Judge; Kaufman and Kearse, Circuit Judges)

(Nickerson, District Judge)


Human rights Torture, inhuman and degrading treatment Whether contrary to customary international law Whether customary international law now prohibits violations of human rights principles committed by a State against its own nationals

Jurisdiction Extraterritorial For breaches of international law Alien Tort Claims Act Jurisdiction of United States courts for torts against the law of nations committed against aliens Extent of jurisdiction Whether extending to State's treatment of its own nationals Torture Unauthorized acts of torture committed by State official Whether a violation of international law

Relationship of international law and municipal law Act of State and justiciability Extent of United States act of State doctrine Whether applicable to acts in violation of international law Torture Whether applicable to unauthorized acts of State official Effect of doctrine on award of damages

Sources of international law General State practice Treaties Writings of publicists Judicial decisions Evolution of international law over two centuries

Damages Principles on which damages awarded Punitive damages Action by relatives of deceased person against police officer of foreign State Defendant found to have tortured deceased to death Whether award of punitive damages appropriate The law of the United States

Summary: The facts:All of the parties in this case were Paraguayan nationals who had originally entered the United States on visitors' visas. The plaintiffs were Dr Joel Filartiga, a well-known opponent of the Stroessner Government of Paraguay, and his daughter, Dolly. The defendant was Americo Norberto Pena-Irala, a former police inspector-general in Asuncin, Paraguay. The Filartigas alleged that in Paraguay in 1976 Pena-Irala had, under colour of State authority, tortured to death Dr Filartiga's 17-year-old son, Joelito. They raised an action in tort against Pena-Irala for Joelito's wrongful death, basing their contention that the District Court had jurisdiction principally upon the Alien Tort Claims Act, 28 U.S.C. 1350 (originally the Judiciary Act of 1789, ch. 20, 9(b), 1 Stat. 67, 77 (1789)). This statute gave the District Court original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.

District Judge Nickerson felt constrained by two recent decisions of the Second Circuit to construe narrowly the expression the law of nations in the Alien Tort Claims Act as excluding that law which governs a State's treatment of its own citizens. He therefore dismissed the suit for lack of subject-matter jurisdiction. The plaintiffs appealed to the Court of Appeals, Second Circuit.

Held (by the Court of Appeals):The decision of the District Court was reversed and federal jurisdiction was sustained.

(1) In the light of the universal condemnation of torture in numerous international agreements, and the renunciation of torture as an instrument of official policy by virtually all of the nations of the world (in principle if not in practice), an act of torture committed by a State official against one held in detention violated established norms of the international law of human rights, and hence the law of nations (p. 174).

(2) The law of nations could be ascertained by consulting the works of jurists writing professedly on public law, by the general usage and practice of nations, or by judicial decisions recognizing and enforcing that law (pp. 1745).

(3) The courts had to interpret international law not as it was in 1789, but as it had evolved and existed among the nations of the world today. Official torture was now prohibited by the law of nations. The prohibition was clear and unambiguous and admitted of no distinction between treatment of aliens and citizens. The dictum in Dreyfus v. von Finck to the effect that violations of international law do not occur when the aggrieved parties are nationals of the acting State was clearly out of tune with the current usage and practice of international law (pp. 1759).

(4) The Court's exercise of jurisdiction was consistent with the traditional competence of domestic courts over transitory tort claims that had no connection with the forum other than the presence of the parties. Such competence was justified by a nation's legitimate interest in the orderly resolution of disputes among those within its borders (pp. 17983).

(5) The Court's jurisdiction depended on a determination of international law. However, the choice of law to be applied in deciding the case was a distinct issue which would be addressed at a later stage in the proceedings. The choice of law inquiry would be primarily concerned with fairness (p. 183).

(6) The act of State doctrine probably did not apply to acts of a foreign government official which were wholly unauthorized and expressly forbidden by the foreign sovereign (pp. 1834).

Further facts:Pena-Irala returned to Paraguay and took no further-part in the action. The District Court entered a default judgment against him, finding him liable under the Alien Tort Claims Act. The Court then referred the question of damages to a federal magistrate who recommended compensatory damages of $200,000 for Dr Filartiga and $175,000 for Dolly Filartiga. The plaintiffs objected to this recommendation and asked the District Court to re-examine the question of damages.

Held (by the District Court):An award of punitive damages was the appropriate remedy for an act of torture, such act being a clear violation of international law.

(1) Abstention in deference to the act of State doctrine was not required. The Paraguayan Government had not been directly involved in the tort, nor had it ratified Pena-Irala's acts. Moreover, in so far as the acts of torture committed by the defendant were a clear and unambiguous violation of the law of nations, there was no reason to suppose that the Court's assumption of jurisdiction would give justifiable offence to Paraguay (p. 186).

(2) Despite the possibility that the United States was not the most convenient forum, the Court would retain jurisdiction, since the defendant had submitted nothing to cast doubt upon the plaintiffs' evidence showing that further resort to the Paraguayan courts would be futile (p. 186).

(3) The substantive principles to be applied in the action would be determined by looking to international law, rather than the law of Paraguay, since the tort referred to in the Alien Tort Claims Act meant a wrong in violation of the law of nations, not merely a wrong actionable under the law of the appropriate sovereign State (pp. 1867).

(4) Since the events constituting the offence had occurred in Paraguay and all the parties were Paraguayan nationals, it was appropriate to look first to Paraguayan law in determining the remedy for the violation of international law. Paraguayan law did not provide for punitive damages. However, because Paraguay would not undertake to punish Pena-Irala for his acts, it was essential and proper to grant punitive damages to give effect to the manifest objectives of the international prohibition against torture (pp. 1879).

(5) Punitive damages of $5,000,000 to each plaintiff was appropriate to reflect adherence to the world community's proscription of torture and to attempt to deter its practice (pp. 18591).

The text of the memorandum and order of the District Court commences at p. 185. The following is the text of the judgment of the Court of Appeals, delivered by Circuit Judge Kaufman:

Upon ratification of the Constitution, the thirteen former colonies were fused into a single nation, one which, in its relations with foreign states, is bound both to observe and construe the accepted norms of international law, formerly known as the law of nations. Under the Articles of Confederation, the several states had interpreted and applied this body of doctrine as a part of their common law, but with the founding of the more perfect Union of 1789, the law of nations became preeminently a federal concern.

Implementing the constitutional mandate for national control over foreign relations, the First Congress established original district court jurisdiction over all causes where an alien sues for a tort only [committed] in violation of the law of nations. Judiciary Act of 1789, ch. 20, 9(b), 1 Stat. 73, 77 (1789), codified at 28 U.S.C. 1850. Construing this rarely-invoked provision, we hold that deliberate torture perpetrated under color of official authority violates universally accepted norms of the international law of human rights, regardless of the nationality of the parties. Thus, whenever an alleged torturer is found and served with process by an alien within our borders, 1350 provides federal jurisdiction. Accordingly, we reverse the judgment of the district court dismissing the complaint for want of federal jurisdiction.


The appellants, plaintiffs below, are citizens of the Republic of Paraguay. Dr. Joel Filartiga, a physician, describes himself as a longstanding opponent of the government of President Alfredo Stroessner, which has held power in Paraguay since 1954. His daughter, Dolly Filartiga, arrived in the United States in 1978 under a visitor's visa, and has since applied for permanent political asylum. The Filartigas brought this action in the Eastern District of New York against Americo Norberto Pena-Irala (Pena), also a citizen of Paraguay, for wrongfully causing the death of Dr. Filartiga's seventeen-year old son, Joelito. Because the district court dismissed the action for want of subject matter jurisdiction, we must accept as true the allegations contained In the Filartigas' complaint and affidavits for purposes of this appeal.

The appellants contend that on March 29, 1976, Joelito...

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