Forti v. Suarez-Mason, C-87-2058-DLJ.

• Decision Date: 25 July 1988
• Docket Number: No. C-87-2058-DLJ.,C-87-2058-DLJ.
• Citation: 694 F. Supp. 707
• Parties: Alfredo FORTI and Debora Benchoam, Plaintiffs, v. Carlos Guillermo SUAREZ-MASON, Defendant.
• Court: U.S. District Court — Northern District of California

694 F. Supp. 707

Alfredo FORTI and Debora Benchoam, Plaintiffs, v. Carlos Guillermo SUAREZ-MASON, Defendant.

No. C-87-2058-DLJ.

United States District Court, N.D. California.

July 6, 1988.

As Amended July 25, 1988.

Thomas J. Long of Morrison & Foerster, San Francisco, Cal., and David Cole, Center for Constitutional Rights, New York City, New York, for plaintiffs.

Jack Hill, San Francisco, Cal., for defendant.

MEMORANDUM OPINION AND ORDER REGARDING MOTION FOR RECONSIDERATION

JENSEN, District Judge.

On October 6, 1987 this Court issued an Order which, in part, denied defendant's Motion to Dismiss plaintiffs' claims for "Official Torture," "Prolonged Arbitrary Detention," and "Summary Execution." The Court granted the Motion to Dismiss the claims for "Disappearance" and for "Cruel, Inhuman or Degrading Treatment." See, e.g., Forti v. Suarez-Mason, 672 F.Supp. 1531, 1540-43 (N.D.Cal.1987). On November 18, 1987 plaintiffs filed a Motion for Reconsideration of that Order through counsel Thomas J. Long and Jordan Eth, et al. Defendant has filed no opposition to the Motion. The Court has considered the memoranda and numerous legal authorities submitted for the first time on this Motion, and the Motion is GRANTED in part and DENIED in part.

I.

Plaintiffs are two Argentine citizens currently residing in the United States. Their initial complaint in this action alleged numerous causes of action against defendant, a former Argentine general, growing out of events which allegedly occurred in the mid to late 1970s during the Argentine military's so-called "dirty war" against suspected subversion. The factual allegations of that complaint are detailed in this Court's October, 1987 Order, published at 672 F.Supp. 1531, 1537-38.¹ Plaintiffs predicated federal jurisdiction under 28 U.S.C. § 1350 (the "Alien Tort Statute"). The Court's previous Order held that the Alien Tort Statute provides a cause of action for "international torts," which the Court defined as follows:

"Violations of current customary international law, which are characterized by universal consensus in the international community as to their binding status and their content. That is, they are universal, definable, and obligatory international norms."

672 F.Supp. at 1541.

The Court went on to hold that "on the basis of the evidence submitted" plaintiff Forti had failed to establish "the requisite degree of international consensus which demonstrates a customary international norm" in regard to his claim for causing the disappearance of his mother. The Court also dismissed both plaintiffs' claims for "cruel, inhuman or degrading treatment," holding that plaintiffs had failed to bring forth sufficient evidence of international consensus, and moreover that the tort "lacks readily ascertainable parameters." Id. at 1542-43.

Plaintiffs subsequently filed this Motion, supported by numerous international legal authorities, as well as affidavits from eight renowned international law scholars.² The Court has reviewed these materials and concludes that plaintiffs have met their burden of showing an international consensus as to the status and content of the international tort of "causing disappearance." Accordingly, the motion to reconsider is GRANTED in this regard and the claim is reinstated. The Court also concludes that plaintiffs have again failed to establish that there is any international consensus as to what conduct falls within the category of "cruel, inhuman or degrading treatment." Absent such consensus as to the content of this alleged tort, it is not cognizable under the Alien Tort Statute. Therefore, the Motion to Reconsider dismissal of this claim is DENIED.

II.

As stated above and in the October, 1987 Order, the Court interprets the Alien Tort Statute as providing a cause of action for "international torts." 672 F.2d at 1540. The plaintiff's burden in stating a claim is to establish the existence of a "universal, definable, and obligatory international norm." Id. To meet this burden plaintiffs need not establish unanimity among nations. Rather, they must show a general recognition among states that a specific practice is prohibited. It is with this standard in mind that the Court examines the evidence presented by plaintiffs.

A.

In the Second Amended Complaint, plaintiff Forti alleges a claim for the "Disappearance and Presumed Summary Execution" of his mother. Second Amended Complaint, ¶ 63-67. Specifically, he alleges that his mother, along with he and his brothers, were seized from an airplane on February 18, 1977 "by police and military officials acting under the direction and control of defendant Suarez-Mason." Id. ¶ 3. The family was then taken to a detention center where they were held for several days.

On the sixth day of their detention they were bound, blindfolded and taken outside. The five boys, aged 8-16, were put in one car, while Mrs. Forti was put in another. The boys were then released on a Buenos Aires street. Id. ¶ 10-17. Mrs. Forti was not released, and has not been seen to this day. Forti alleges that he and his brothers tried through all available channels to get their mother released. However, "the Argentine government's response to all of these efforts was always the same — it refused to confirm or deny that Mrs. Forti had been abducted or was being detained." Id. ¶ 18-20.

The legal scholars whose declarations have been submitted in connection with this Motion are in agreement that there is universal consensus as to the two essential elements of a claim for "disappearance." In Professor Franck's words:

The international community has also reached a consensus on the definition of a "disappearance." It has two essential elements: (a) abduction by a state official or by persons acting under state approval or authority; and (b) refusal by the state to acknowledge the abduction and detention.

Franck Declaration, ¶ 7. See also Falk Declaration, at 3; Henkin Declaration, ¶ 9; Steiner Declaration, ¶ 3, 5; Weissbrodt Declaration, ¶ 8(b); Weston Declaration, ¶ 5.

Plaintiffs cite numerous international legal authorities which support the assertion that "disappearance" is a universally recognized wrong under the law of nations. For example, United Nations General Assembly Resolution 33/173 recognizes "disappearance" as violative of many of the rights recognized in the Universal Declaration of Human Rights, G.A. Res. 217 A (III), adopted by the United Nations General Assembly, Dec. 10, 1948, U.N. Doc. A/810 (1948) hereinafter Universal Declaration of Human Rights. These rights include: (1) the right to life; (2) the right to liberty and security of the person; (3) the right to freedom from torture; (4) the right to freedom from arbitrary arrest and detention; and (5) the right to a fair and public trial. Id., articles 3, 5, 9, 10, 11. See also International Covenant on Political and Civil Rights, G.A. Res. 2200 (XXI), adopted by the United Nations General Assembly, December 16, 1966, U.N. Doc. A/6316 (1966), articles 6, 7, 9, 10, 14, 15, 17.

Other documents support this characterization of "disappearance" as violative of universally recognized human rights. The United States Congress has denounced "prolonged detention without charges and trial" along with other "flagrant denials of the right to life, liberty, or the security of person." 22 U.S.C. § 2304(d)(1). The recently published Restatement (Third) of the Foreign Relations Law of the United States § 702 includes "disappearance" as a violation of the international law of human rights. The Organization of American States has also denounced "disappearance" as "an affront to the conscience of the hemisphere and ... a crime against humanity." Organization of American States, Inter-American Commission on Human Rights, General Assembly Resolution 666 (November 18, 1983).

Of equal importance, plaintiffs' submissions support their assertion that there is a universally recognized legal definition of what constitutes the tort of "causing disappearance." The Court's earlier order expressed concern that "the sole act of taking an individual into custody does not suffice to prove conduct which the international community proscribes." 672 F.Supp. at 1543. Plaintiffs' submissions on this Motion, however, establish recognition of a second essential element — official refusal to acknowledge that the individual has been taken into custody. For example, the United Nations General Assembly has expressed concern at the

difficulties in obtaining reliable information from competent authorities as to the circumstances of such persons, including reports of the persistent refusal of such authorities or organizations to acknowledge that they hold such persons in custody or otherwise to account for them.

U.N. General Assembly Resolution 33/173 (December 20, 1978).

Likewise, the Organization of American States has recognized the importance of this element, commenting on the

numerous cases wherein the government systematically denies the detention of individuals, despite the convincing evidence that the claimants provide to verify their allegations that such persons have been detained by police or military authorities and, in some cases, that those persons are, or have been, confined in specified detention centers.

Organization of American States, Inter-American Commission on Human Rights, 1977 Annual Report, at 26. See also M. Berman & R. Clark, State Terrorism: Disappearances, 13 Rutgers L.J. 531, 533 (1982) ("The denial of accountability is the factor which makes disappearance unique among human rights violations.").

In the Court's view, the submitted materials are sufficient to establish the existence of a universal and obligatory international proscription of the tort of "causing disappearance." This tort is characterized by the following two essential elements: (1) abduction by state officials or their agents; followed by (2) official refusals to acknowledge the abduction or to...