1789 federal pirate law revived by Paraguay family's tragedy

(This article originally ran in Lawyers Weekly USA, Boston, MA, another Dolan Media publication.)

More than 200 years ago, the United States of America passed the Alien Tort Claims Act as a way to protect citizens of the new nation and its economy from the dangers of off-shore pirates.

The 1789 law established jurisdiction over foreign citizens for crimes committed on foreign soil against foreigners - thus protecting American commerce. But it was used sparingly for nearly two centuries.

However, in 1978 the Filartiga family of Paraguay used the dusty statute to prosecute the police official who tortured and killed their 17-year-old son. Their innovative use of the long-forgotten law has had a far-reaching impact, initiating a string of lawsuits against dictators, tyrants and corporations for violating human rights.

Richard Alan White, a Filartiga family friend and respected human rights advocate, participated in their efforts and recently published an account of the story, Breaking Silence: The Case That Changed the Face of Human Rights.

Since the Filartigas' 1984 legal victory in the United States, White said more than 70 lawsuits have been filed using the Alien Tort Claims Act, and its use continues to grow.

White was a graduate student at the University of California at Berkeley when he first visited Paraguay and met Dr. Joel Filartiga, a well-known doctor, artist and philanthropist who openly opposed Paraguay's military dictatorship.

He returned shortly after the murder-by-torture of Joelito Filartiga, and lived with the family for the next seven months.

As an historian, White provides a detailed account of the family's struggle to seek justice for Joelito, first in Paraguay and later in the United States. And as a family insider, White shares the intimate details of a family trying to cope with a tragic loss and the emotional trauma with which each family member has struggled.

The combination of landmark legal case and personal trials was a complicated story to write, and it took White several years.

At times, writing the book was very emotional, he told Lawyers Weekly USA. My nightmares came back.

A Senior Fellow at the Council on Hemispheric Affairs in Washington, D.C., White also worked as a field representative for Amnesty International while in Paraguay.

But his involvement in the story was accidental, he said.

One thing leads to the next, he explained. There was no big heroic decision of 'Here's a fight I'm going to fight,' but one step at a time, you just don't let the bastards beat you down.

It's only later that you look back and realize that's the way it happened, he said.

'Terror, Agony And Degradation'

Dr. Filartiga was an outspoken critic of Paraguay's dictator, General Alfredo Stroessner, and had been arrested and tortured for his political views three times.

Then the Paraguayan military police arrested his 17-year-old son, Joelito. Led by the family's neighbor and local police inspector Americo Pena-Irala, the police tortured Joelito to death on March 30, 1976.

In the middle of the night, the police woke his sister, Dolly, so they could carry his body into the home on a bloodstained mattress.

When Dr. Filartiga saw his son's mutilated body, he swung into action despite the inevitable repercussions.

He photographed Joelito's bruised, stabbed and burned body to document the evidence of torture.

In an attempt to stir up popular support against the government officials, the family distributed the pictures to anyone who would take them.

The government, however, had a different story about Joelito's death.

Inspector Pena claimed that Joelito was killed by the jealous husband of a young woman that Joelito was having an affair with. Conveniently, the woman disappeared and was unable to give testimony about the night in question.

Her husband, although jailed for his alleged role in the boy's murder, was eventually freed under a Napoleonic law that allows deadly force in retaliation for a cheating wife.

But the Filartigas insisted on taking their son's torture and murder public and seeking retribution.

White, who lived with the Filartigas in the aftermath of Joelito's death, described the ordeal as a period of terror, agony and degradation.

Without being gory or melodramatic, White describes the dangers of life in Paraguay under General Stroessner by documenting the continual harassment and death threats the family received.

As an American, with friends at the U.S. embassy, White was more shielded than the family, but he carried a gun with him at all times.

With White's help and the involvement of Amnesty International and other human rights organizations, the Filartigas were able to keep pressure on the Paraguayan government and Pena, who eventually fled the country.

'A Renunciation Of Torture'

Dolly, Joelito's older sister, moved to the United States because the stress of the situation became too much for her.

While trying to start a new life, she learned that Pena had also come to America.

While the Filartigas were pleased to know where Pena was now hiding, they faced a difficult decision given their limited legal options.

Because Pena had overstayed his American visa, he would be deported if arrested and could easily disappear again, meaning they might never learn the truth about their son's death.

And if he was arrested and detained, how could they keep him in the U.S.?

The attorneys of the Center for Constitutional Rights came up with the answer: the 200-year-old Alien Tort Claims Act.

White's description of the lawyers' pessimism about using the statute against Pena is especially powerful, given the impact the case would eventually have.

Acting pro bono, Dolly (who was seeking political asylum at the time) filed the landmark suit.

Under the Act, United States federal courts have jurisdiction over foreign citizens who commit violations of international law even outside of the U.S.

The plaintiffs' lawyers argued that because Stroessner controlled the Paraguayan courts, they could never get a fair trial in their home country. And because international law clearly prohibits human rights abuses, such as torture and murder, Pena was subject to U.S. jurisdiction under the Act.

Because he had overstayed his visa, Pena should have been immediately deported, but the Filartigas fought to keep him in America, since that was their only chance to find out what really happened to Joelito.

The book details the ensuing legal battle, from dismissal of the case through the appellate process and the ultimate default judgment against Pena for $10.4 million.

Despite the verdict, White said plaintiffs failed to achieve their real goal because Pena was returned to Paraguay when the case was initially dismissed.

There remains a blank space of several hours that night, White said. That's why we wanted to get the truth out of Pena when he was [in America].

The Filartigas have never received a penny of their award.

After Filartiga

While the loss of Joelito continues to haunt the lives of White and the Filartigas, they take solace in the revival of the Act.

The precedents have grown to include not only torture, but disappearance, extra-judicial rape used as a method of war, crimes against humanity, slavery and genocide, White said.

Claims have been made against former leaders and government leaders in Iran, China, Bosnia, Chile and the Philippines. In addition, suits using the Act have been expanded to include American corporations sued for offenses committed on foreign soil, cases in which there is a much greater chance of collecting verdicts and affecting the defendant's future behavior.

In 1997, a U.S. District Court in California ruled that Unocal could be held accountable for its alleged use of slave labor, including the torture and rape of its workers in a joint venture with Burma's military dictatorship (Burma is now known as Myanmar). (Doe v. Unocal, 973 F.Supp. 880 (C.D. Cal.).)

The case settled in December 2004 for an undisclosed amount.

Last summer the Supreme Court affirmed the use of the Act in U.S. courts to prosecute human rights crimes committed abroad. (Sosa v. Alvarez-Machain, 124 S.Ct. 2739 (2004).) Although the court said the plaintiff's case couldn't go forward, it left the door open for lawsuits based on violations of clear, definite norms of international human rights.

While torture and political persecution continue to take place around the world, Breaking Silence is ultimately a hopeful story of one family's struggle to seek justice.

White's story-telling is unflinchingly honest, from his criticism of judges to his heart-breaking account of a family falling apart.

He characterized his book as a piece of dramatic non-fiction.

I didn't censor or edit any of it, and it's all the stuff the way I remembered it, he said. This is the permanent testimony to Joelito and the Filartigas' story.

Copyright 2005 Dolan Media Newswires
Provided by ProQuest Information and Learning Company. All rights Reserved.