Filartiga v. Pena-Irala

• Decision Date: 10 January 1984
• Docket Number: No. 79 C 917.,79 C 917.
• Citation: 577 F. Supp. 860
• Parties: Dolly M.E. FILARTIGA and Joel Filartiga, Plaintiffs, v. Americo Norberto PENA-IRALA, Defendant.
• Court: U.S. District Court — Eastern District of New York

577 F. Supp. 860

Dolly M.E. FILARTIGA and Joel Filartiga, Plaintiffs, v. Americo Norberto PENA-IRALA, Defendant.

No. 79 C 917.

United States District Court, E.D. New York.

January 10, 1984.

Center for Constitutional Rights, New York City (Peter Weiss, Rhonda Copelon, Betty Lawrence Bailey, New York City of counsel), Michael Maggio, Washington, D.C., for plaintiffs.

Steven M. Schneebaum, Washington, D.C., for amicus curiae Intern. Human Rights Law Group.

MEMORANDUM AND ORDER

NICKERSON, District Judge.

Plaintiffs, Dolly M.E. and Dr. Joel Filartiga, citizens of Paraguay, brought this action against defendant Pena, also a Paraguayan citizen, and the former Inspector General of Police of Asuncion. They alleged that Pena tortured and murdered Joelito Filartiga, the seventeen year old brother and son, respectively, of plaintiffs, in retaliation for Dr. Filartiga's opposition to President Alfredo Stroessner's government. Plaintiffs invoked jurisdiction under, among other provisions, 28 U.S.C. § 1350, giving 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."

This court followed what it deemed the binding precedents of IIT v. Vencap, Ltd., 519 F.2d 1001 (2d Cir.1975) and Dreyfus v. von Finck, 534 F.2d 24 (2d Cir.), cert. denied, 429 U.S. 835, 97 S.Ct. 102, 50 L.Ed.2d 101 (1976), and dismissed for lack of jurisdiction on the ground that violations of the law of nations "do not occur when the aggrieved parties are nationals of the acting state," id. at 31.

The Court of Appeals reversed and remanded, concluding that the above quoted language from the Dreyfus opinion was "clearly out of tune with the current usage and practice of international law." Filartiga v. Pena-Irala, 630 F.2d 876, 884 (2d Cir.1980). The Court of Appeals held 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," and that 28 U.S.C. § 1350 gave jurisdiction over an action asserting such a tort committed in violation of the law of nations. Id. at 878.

Following remand Pena took no further part in the action. This court granted a default and referred the question of damages to Magistrate John L. Caden for a report. The Magistrate, after a hearing, recommended damages of $200,000 for Dr. Joel Filartiga and $175,000 for Dolly Filartiga. Plaintiffs filed objections to the report, and the matter is now here for determination.

I

Before addressing damages the court considers two matters urged before but not decided by the Court of Appeals. Both go to whether the court should decline to exercise jurisdiction.

The first is whether the court should abstain in deference to the so-called act of state doctrine. See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 84 S.Ct. 923, 11 L.Ed.2d 804 (1964). Were the government of Paraguay concerned that a judgment by the court as to the propriety of Pena's conduct would so offend that government as to affect adversely its relations with the United States, presumably Paraguay would have had the means so to advise the court.

In any event, the Court of Appeals held that the alleged acts constitute, by the "general assent of civilized nations," a "clear and unambiguous" violation of the law of nations. 630 F.2d at 881, 884. As the Supreme Court noted in discussing the act of state doctrine in the Sabbatino decision, "the greater the degree of codification or consensus concerning a particular area of international law, the more appropriate it is for the judiciary to render decisions regarding it." 376 U.S. at 428, 84 S.Ct. at 940. Where the principle of international law is as clear and universal as the Court of Appeals has found it to be, there is no reason to suppose that this court's assumption of jurisdiction would give justifiable offense to Paraguay.

Moreover, as the Court of Appeals noted, Paraguay has not ratified Pena's acts, 630 F.2d at 889, and this alone is sufficient to show that they were not acts of state. See Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682, 684, 694, 96 S.Ct. 1854, 1856, 1861, 48 L.Ed.2d 301 (1976).

Pena argued here on the original motion and in the Court of Appeals that this court should decline to proceed because Paraguay and not the United States is the convenient forum. Pena's default now casts doubt on the good faith of this contention. Its merits depend on whether the courts of Paraguay are not only more convenient than this court but as available and prepared to do justice. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254 n. 22, 102 S.Ct. 252, 265 n. 22, 70 L.Ed.2d 419 (1981). Pena submitted nothing to cast doubt on plaintiffs' evidence showing that further resort to Paraguayan courts would be futile. This court will therefore retain jurisdiction.

II

The Court of Appeals decided only that Section 1350 gave jurisdiction. We must now face the issue left open by the Court of Appeals, namely, the nature of the "action" over which the section affords jurisdiction. Does the "tort" to which the statute refers mean a wrong "in violation of the law of nations" or merely a wrong actionable under the law of the appropriate sovereign state? The latter construction would make the violation of international law pertinent only to afford jurisdiction. The court would then, in accordance with traditional conflict of laws principles, apply the substantive law of Paraguay. If the "tort" to which the statute refers is the violation of international law, the court must look to that body of law to determine what substantive principles to apply.

The word "tort" has historically meant simply "wrong" or "the opposite of right," so-called, according to Lord Coke, because it is "wrested" or "crooked," being contrary to that which is "right" and "straight". Sir Edward Coke on Littleton 158b; see also W. Prosser, Law of Torts 2 (1971). There was nothing about the contemporary usage of the word in 1789, when Section 1350 was adopted, to suggest that it should be read to encompass wrongs defined as such by a national state but not by international law. Even before the adoption of the Constitution piracy was defined as a crime by the law of nations. United States v. Smith, 18 U.S. (5 Wheat.) 153, 157, 5 L.Ed. 57 (1820). As late as 1819 Congress passed legislation, now 18 U.S.C. § 1651, providing for punishment of "the crime of piracy, as defined by the law of nations." 3 Stat. 510 (1819). Congress would hardly have supposed when it enacted Section 1350 that a "crime," but not the comparable "tort," was definable by the law of nations. Nor is there any legislative history of the section to suggest such a limitation.

Accordingly, there is no basis for adopting a narrow interpretation of Section 1350 inviting frustration of the purposes of international law by individual states that enact immunities for government personnel or other such exemptions or limitations. The court concludes that it should determine the substantive principles to be applied by looking to international law, which, as the Court of Appeals stated, "became a part of the common law of the United States upon the adoption of the Constitution." 630 F.2d at 886 (emphasis in original); see also The Nereide, 13 U.S. (9 Cranch) 388, 422, 3 L.Ed. 769 (1815) (Marshall, C.J.); The Paquete Habana, 175 U.S. 677, 700, 20 S.Ct. 290, 299, 44 L.Ed. 320 (1900).

The international law described by the Court of Appeals does not ordain detailed remedies but sets forth norms. But plainly international "law" does not consist of mere benevolent yearnings never to be given effect. Indeed, the Declaration on the Protection of All Persons from Being Subjected to Torture, General Assembly Resolution 3452, 30 U.N. GAOR Supp. (No. 34) 91, U.N. Doc. A/1034 (1975), adopted without dissent by the General Assembly, recites that where an act of torture has been committed by or at the instigation of a public official, the victim shall be afforded redress and compensation "in accordance with national law," art. 11, and that "each state" shall ensure that all acts of torture are offenses under its criminal law, art. 7.

The international law prohibiting torture established the standard and referred to the national states the task of enforcing it. By enacting Section 1350 Congress entrusted that task to the federal courts and gave them power to choose and develop federal remedies to effectuate the purposes of the international law incorporated into United States common law.

In order to take the international condemnation of torture seriously this court must adopt a remedy appropriate to the ends and reflective of the nature of the condemnation. Torture is viewed with universal abhorrence; the prohibition of torture by international consensus and express international accords is clear and unambiguous; and "for purposes of civil liability, the torturer has become — like the pirate and the slave trader before him — hostis humani generis, an enemy of all mankind." 630 F.2d at 884, 888, 890. We are dealing not with an ordinary case of assault and battery. If the courts of the United States are to adhere to the consensus of the community of humankind, any remedy they fashion must recognize that this case concerns an act so monstrous as to make its perpetrator an outlaw around the globe.

III

The common law of the United States includes, of course, the principles collected under the rubric of conflict of laws. For the most part in international matters those principles have been concerned with the relevant policies of the interested national states, and with "the needs" of the "international systems." Restatement (Second) of Conflict of Laws (1971) § 6(2). The chief function of international choice-of-law rules has been said to be to further harmonious relations and commercial intercourse between...