International Law and
Torture
The American Court
System
U.S. Alien Tort Claims Act, l789
The district courts shall have original
jurisdiction of any civil action by an
alien to a tort only, committed in
violation of the law of nations or a
treaty of the United States.
--origins in constitutional provisions for a judicial branch

-- lay dormant for nearly 190 years
Torture Victim Protection Act,
1992 (U.S. law)
Provides federal jurisdiction and a
cause for action for victims of torture
(United States citizens and aliens
alike), regardless of where
committed or the citizenship of
victims or perpetrators

U.N.Convention Against Torture
and other Cruel, Inhuman and Degrading
Punishment, 1984


[torture is]…any act by which severe pain or suffering,
whether physical or mental, is intentionally inflicted on a
person for such purposes as obtaining from him or a third
person information or a confession, punishing him for an
act he…has (allegedly)committed…or intimidating or
coercing him…when such pain in inflicted by or at the
instigation of…a public official or …person acting in an
official capacity.
Each state party shall take effective…measurement to
prevent acts of torture in any territory under its
jurisdiction.
Torture Convention (cont.)
-- no exceptional circumstances whatsoever, whether a state
of war or internal instability or any other public emergency,
may be invoked as a justification of torture.
-- any order from a superior officer or public authority may
not be invoked as a justification of torture.
-- no State Party shall expel, return (“refouler”) or extradite
a person to another state where there are substantial ground
for believing he would be subject to torture [taking into
account consistent patterns of gross or flagrant violations
of human rights.]
Universal jurisdiction: state must either prosecute or
extradite accused to a state which will prosecute
Additional International Laws
applied to torture cases:



Covenant on Civil and Political Rights (in effect,
l976)
Geneva Conventions (1949 revised)
Crimes Against Humanity (Rome Statute of the
ICC; Charters, International Military Tribunals,
Nuremberg and Tokyo)
Court Cases under the Alien
Tort Act:

Dolly Filártiga and Joel Filártiga v.
Américo Norberto Peña-Irala, No. l9l,
docket 79-6090, argued October 16, l979, decided June 30, l980
(U.S. Court of Appeals Second Circuit). Precedent-setting case.

José Francisco Sosa v. Humberto
Alverez-Machain, Nos. 03-339, 03-485, argued
March 30, 2004, decided June 29, 2004 (Supreme Court)
Cases (cont.)

Juan Romagoza Arce, Neris Gonzales, Carlos Mauricio, and
Jorge Montes v. Jose Guillermo Garcia and Carlos Eugenio
Vides Casanova, no. 99-8364 CIV-Hurley second amended complaint
for Torture, Crimes against Humanity, Cruel, Inhuman or Degrading
Punishment; and Arbitrary Detention, decided by jury July 2002


----------- February 2005 the 11th Circuit Court of Appeals
overturned the verdict (had not fallen in the 10 year statute of
limitations requirement)
------------January 5, 2006 the Court upheld the verdict in its
entirety, ruling that “extraordinary circumstances” may require
equitable tolling so long as the perpetrating regime remains in
power (extending the statute) which intimidates witnesses and
the quest for justice
Alien Tort Act (applied to
multinational corporations

Doe v Unocal (in Burma), settled March 2005.

Khulomani et.al., v Barclays, charging corporations with
Held
transnational corporation accountable for perpetration of and
participation in human rights abuse (forced labor in the
construction of its Yadana gas pipeline).
complicity in the South African apartheid system (on appeal;
good chance of success because of the core principle of
customary international law: liability “for knowing practical
assistance or encouragement which has a substantial effect on
the perpetration of a crime.”