This section covers criminal prosecutions carried out in domestic courts of crimes committed in the national territory, as well as civil suits heard in domestic courts regarding events that occurred in the country or abroad.
Also, for a user-friendly introduction to significant domestic precedents with regard to implementation of international humanitarian law, see the International Committee of the Red Cross’ compilation of National Case Law, by State or by keyword. For example, for the U.S., this database contains summaries and full text of ten historic federal court decisions touching on the rights and responsibilities found in international law (Filartiga v. Pena-Irala, several war on terror detainee cases, and the 2nd Circuit’s agent orange decision).
Contents
Whether specifically mandated by a supra-national tribunal (such as the Inter-American Court of Human Rights) or independently initiated by domestic prosecutors, the investigation and prosecution of major human rights abuses is a necessary component of States’ obligations to guarantee and protect fundamental rights and goes a long way to combating impunity and, hopefully, repairing the national psyche. The importance of prosecutions to the victims and/or their surviving family members—as an opportunity to learn the truth, tell their story and be heard, and seek justice—cannot be overstated.
Some notable domestic prosecutions involve efforts to bring to justice those suspected of involvement in widespread human rights violations carried out in the context of armed conflict, civil unrest, or politically-motivated State crackdowns. Current and recent examples include the prosecutions of military officials in Argentina for violations committed in the 1970s during the ‘Dirty War,’ of paramilitaries in Guatemala for involvement in disappearances and massacres in the 1980s, of members of the Mexican military for the 1968 ‘Tlatelolco Massacre’, and the convictions in absentia by an Italian court of American CIA agents in relation to the practice of extraordinary rendition in the last decade, and of former Peruvian president Alberto Fujimori for extrajudicial executions in the 1990s. Although many of these violations were committed decades ago, both domestic and international law may allow prosecution because of the absence of a statute of limitations on, e.g., extrajudicial killings or crimes against humanity.
Although these high profile cases mostly involve violations of the right to life committed by State agents, it must be noted that the obligation to investigate and prosecute human rights violations extends to all abuses of a criminal (non-civil or -administrative) nature, such as violations of the right to physical integrity (rape or torture) or liberty (enslavement, arbitrary detention or kidnapping), including those committed by non-State actors.
- Argentina: Over the past five years, the Argentine judicial system has been trying those suspected of involvement in the enforced disappearances, extrajudicial killings, and other crimes carried out by State agents during the Dirty War of the 1970s and 1980s. Major impetus behind these prosecutions came from the involvement of the Inter-American Commission on Human Rights which, through its visit, report and various decisions, urged the timely investigation and prosecution of the human rights violations; as well as from the government’s creation of a truth commission (la Comisión Nacional sobre la Desaparición de Personas), whose report Nunca Más, published in 1984, detailed the atrocities. The current prosecutions were made possible by domestic judicial decisions which characterized the abuses as crimes against humanity whose prosecution could not be barred by any statute of limitations, and which declared unconstitutional two amnesty laws which had protected those responsible. The non-governmental organization Centro de Estudios Legales (CELS) maintains an excellent blog, tracking the trials against military and police officers and other for crimes against humanity, which began in 2009. The well-known Madres de Plazo de Mayo are also involved in some of the trials. The Argentina judicial branch’s Centro de Información Judicial also maintains an updated site on the trials for crimes against humanity.
- Guatemala: This Central American country experienced a 36-year internal armed conflict, which officially concluded with the signing of the 1996 Peace Accords. Prosecution for the crimes committed during this period remains a major challenge of the Guatemalan government. Although the conflict was ostensibly between leftist guerrilla groups and a series of rightist military governments, the government enjoyed a significant combat advantage, and the group which suffered most was the civilian population of Guatemala—particularly indigenous communities in rural Guatemala where the government feared guerrilla members could find shelter—and often through the government’s creation and use of civilian patrols (PACs) comprised of members of the same, or neighboring, communities. It is generally considered that the worst atrocities, including hundreds of massacres, were committed in the early 1980s. See the report of the Comisión para el Esclarecimiento Histórico (Historical Clarification Commission) here. Although some criminal proceedings have begun against members of the PACs and of the Guatemalan military, the Guatemalan government has been harshly criticized for the impunity which has left unpunished violations committed during the conflict (as well as common crimes committed currently). Two such prosecutions were initiated because of criminal complaints by victims alleging that former military leaders Fernando Romeo Lucas García (now deceased) and Efraín Rios Montt had committed genocide. In response to the reigning situation of impunity in Guatemala, a joint effort between the Guatemalan government and United Nations established a special commission to further the investigation and prosecution of crimes which began operating in 2008 (however, not including crimes committed during the internal conflict). See the Comisión Internacional Contra la Impunidad en Guatemala (CICIG) site here. One conviction has been handed down against a civilian, in August of 2009, against a military commissioner found responsible for the enforced disappearance of 6 individuals (sentence here). Several former military and police leaders have been charged, and in 2011, four former soldiers were convicted of crimes against humanity. Follow the developments in the Guatemalan prosecutions on the website of NGO Centro para la Acción Legal en Derechos Humanos (CALDH). The Inter-American Commission on Human Rights and Inter-American Court have considered many cases dating to the internal conflict, and have found the Guatemalan government responsible, inter alia, for massacres committed in the communities of Dos Erres and Plan de Sánchez, the extrajudicial execution of anthropologist Myrna Mack Chang, and disappearances.
- Italy was one of a number of countries in which U.S. agents allegedly kidnapped individuals as part of the practice known as extraordinary rendition to torture. In 2009, Italian Judge Oscar Magi convicted, in absentia, 23 CIA agents for their involvement in the abduction and rendition of Osama Moustafa Hassan Nasr from Milan, Italy to Egypt. See a summary of the case here.
- One of Mexico’s most infamous human rights tragedies is the Tlatelolco massacre—the killing of hundreds of student protesters by military forces in the days before the 1968 Olympic Games in Mexico City. Read Elena Poniatowska’s collection of testimonies about the events, La Noche de Tlatelolco, here. The Mexican legislature initiated an investigation of the massacre in 1997 and in 2004, Mexico’s former president Luis Echeverria Alvarez (Secretary of the Interior at the time) and intelligence officials were charged with genocide and forced disappearance. However, in 2007 dismissed the charges for lack of evidence and in 2009 Echeverria was exonerated. [Trial Watch]. (Related document: the International Center for Transitional Justice’s summary, in Spanish, here).
- In Peru, the ten-year reign (from 1990 to 2000) of former President Alberto Fujimori was characterized by a severe crackdown aimed at eradicating the militant, communist guerrilla movement Sendero Luminoso (Shining Path), but which included in its wide net the kidnapping, torture, extrajudicial execution, disappearance, and flawed prosecution of thousands of individuals, as well as executive tampering with the independence of the judicial and legislative branches of government. The Inter-American Commission on Human Rights and Inter-American Court of Human Rights issued many decisions on Peru’s responsibility for violations of the American Convention on Human Rights, both prior to and during Fujimori’s administration. See, e.g., Loayza-Tamayo v. Peru, Barrios Altos v. Peru, Cantoral-Benavides v. Peru, Constitutional Court v. Peru, Gomez-Paquiyauri Brothers v. Peru, De la Cruz-Flores v. Peru, Lori Berenson-Mejía v. Peru, Huilca-Tecse v. Peru, Dismissed Congressional Employees (Aguado-Alfaro et al. v. Peru), Miguel Castro-Castro Prison v. Peru, and La Cantuta v. Peru. In those decisions, the Inter-American Court dictated that the violations be investigated and those responsible be held to account. Additionally, in 2003 the government-established Truth and Reconciliation Commission (Comisión de la Verdad y Reconciliación) issued its report on the violations committed during between 1980 and 2000 in the context of the armed conflict with Sendero Luminoso. In Section 2.3 of the report, the Commission signals, “In contrast with the events that took place under the administrations of the 1980s, during the two administrations of Alberto Fujimori, and particularly following April 5, 1992, there existed a functional relationship between political power and criminal conduct” (unofficial translation from the Spanish). In 2003, Peru sought Fujimori’s extradition from Japan to stand trial on charges of kidnapping, torture, and extrajudicial killings (in connection with the Barrios Altos and La Cantuta cases, above), but it was not until 2007 that Fujimori was arrested and brought to trial. In April 2009, the Special Criminal Chamber of the Peruvian Supreme Court issued its judgment, convicting Fujimori of various counts of homicide, serious injury, and aggravated kidnapping, and sentencing him to 25 years in prison. The Chamber concluded that the homicide and serious injury charges amounted to crimes against humanity under international law.
Liability of Individuals and States
Although many States make available civil redress for human rights abuses, the remedies available under U.S. law stand out for their (potentially) expansive geographic reach. Though results have been mixed, two federal statutes allow plaintiffs to seek monetary reparation for violations of (essentially, jus cogens) international norms (the Alien Tort Claims Act, also called the Alien Tort Statute, 28 U.S.C. § 1350) and torture (Torture Victims Protection Act, 28 U.S.C. § 1350 note). Only ‘aliens’, or non-U.S. citizens may sue under the ATCA, and, under both statutes, courts have been unwilling to find U.S. government officials liable for alleged violations committed outside the United States.
Additionally, individuals may hold States accountable for tortious conduct in the United States and State-sponsored acts of terrorism, under codified exceptions to State immunity in the Foreign Sovereign Immunities Act, 28 U.S.C. Sec. l330, l332(a), l39l(f) and l60l-l6 (see text of the law here and here). See a University of Chicago explanation of the FSIA here.
One lawsuit involving all three laws (the ATCA, TVPA and FSIA) is Yousuf v. Samantar. The suit, filed by the Center for Justice and Accountability, seeks damages on behalf of five former Somali citizens who were allegedly tortured by troops under Samantar’s command. See the CJA’s webpage on the case here and SCOTUSblog’s recap of the oral arguments before the Supreme Court here.
Notable civil cases litigated in U.S. courts include the suits against: a Paraguayan police officer for torture and murder; oil companies Shell (and here) and Chevron (and here) for atrocities committed in the Niger Delta; oil company Unocal (now Chevron) for complicity in forced labor, rape and murder in Burma; former Liberian president’s son Chuckie Taylor for atrocities committed in that country’s internal conflict; the mayor of Beijing for persecution of Falun Gong members; private contractors in Iraq for torture and other acts; foreign nationals working with U.S. agents to abduct an individual in Mexico; and, Chiquita for funding and arming terrorist groups in Colombia.
See the website of the Center for Justice and Accountability for additional information and more cases.
Additionally, see posts on this blog related to civil suits:
- Iranian liability for 1983 Hezbollah bombing
- Radovan Karadzic’s liability related to the Bosnian genocide of the 1990s
Liability of U.S. Officials
Other statutes govern civil litigation against the U.S. government or its agents. Civil tort suits against, inter alia, individual government agents for rights violations committed “under color” of law are permitted under 42 U.S.C. § 1983, but the Federal government itself is generally immune from suit under this provision. The Federal Tort Claims Act (28 U.S.C. §§ 1346(b), 2671-2680) provides for recovery of civil damages from the Federal government for actions committed by Federal government employees within the scope of their employment. Such employees can also be sued in their individual capacity for alleged constitutional torts committed within the scope of their employment (known as Bivens actions, after the Supreme Court decision Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971)). See the U.S. Department of Justice’s Torts Branch page for examples of both kinds of suits.
Current examples of such suits include those brought by the relatives of detainees who died at Guantánamo Bay and extraordinary rendition victim, Maher Arar.