Creative Justice: Behind the battle to make U.S. courtrooms sites of accountability for Latin American human rights atrocities

This posting initially appeared in Volume 49 of NACLA Report on the Americas. 

The grave of Victor Jara in Santiago’s Cementerio General.

Poet, musician, theater director, teacher, and activist, Víctor Jara was the creative heart of the movement in Chile seeking social change under President Salvador Allende, and an early victim of Augusto Pinochet’s terror regime. Jara was 40 years old when he died at the hands of the Chilean military following the September 11, 1973 coup. It would be 43 more years before any of his killers met justice. On June 27, 2016, a jury of six women and men found former army lieutenant Pedro Pablo Barrientos Nuñez liable for his role in Jara’s torture and extrajudicial killing—not in Santiago, where the crime took place, but inside a modest courtroom in Orlando, Florida, more than 4,000 miles away.

How one of Jara’s killers came to stand trial in the United States is part of a fascinating story of creative justice being rendered against Latin American human rights violators before U.S. judges and juries. Since 1980, human rights attorneys have used one legal instrument in particular—the Alien Tort Statute (ATS), which dates to 1789—and later an array of other laws to pursue a measure of accountability for perpetrators who would otherwise have remained untouched. The motivation behind their efforts is not to preempt the region’s judicial systems, but to offer an alternative means to strike against impunity. The cases often give survivors and victims’ families their first chance ever to tell their stories inside a courtroom. They also help build a body of human rights jurisprudence that can guide legal action in the future. For U.S. citizens, the trials unmask torturers and assassins who have been living among them for years. The Center for Justice and Accountability (CJA), the California-based group behind the Jara trial, estimates that more than 1,000 human rights abusers have settled in the United States.

The strategy has its drawbacks. The outcome of the complaint brought by Víctor Jara’s widow, Joan, and their daughters, Amanda and Manuela, against former Chilean military official Pablo Barrientos reflects the tricky nature of such proceedings. On the one hand, the Florida ruling represents the only accountability achieved in a case that was stalled for half a lifetime. It could also reinvigorate Chilean prosecutors to advance their own criminal investigation against Barrientos and at least ten other Chilean military officers indicted for Jara’s torture and killing. On the other, the decision was the result of a civil lawsuit; it did not result in Barrientos’ incarceration. The jury’s verdict found the retired lieutenant—who remains a free man in Florida, where he has lived since leaving Chile in 1989—liable for $28 million USD, a sum the Jara family will likely never see.

The idea to adapt an obscure eighteenth-century civil law to serve twentieth-century human rights purposes first emerged in a case brought by the Center for Constitutional Rights (CCR) in New York against a Paraguayan perpetrator. Police inspector Américo Peña-Irala had moved to the United States after torturing and killing 17-year-old Joelito Filártiga in Asunción, and was spotted by Joelito’s sister Dolly in 1979, walking on the streets of Manhattan. In response to Dolly’s plea for assistance, CCR brought a wrongful death action—the civil equivalent of the crime of murder—against Peña-Irala based on ATS. Although the Alien Tort Statute was originally intended to give federal courts jurisdiction over violations of “the law of nations,” such as piracy, assaults on diplomats, and debts owed to foreign countries, CCR argued that Peña-Irala’s actions flouted common principles of international human rights law and therefore fit within its scope.

The U.S. Second Circuit Court of Appeals agreed. Ruling in favor of plaintiff Dolly Filártiga in 1984, the court found in Filártiga v. Peña-Irala 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. Indeed,” the decision continued, “for purposes of civil liability, the torturer has become—like the pirate and slave trader before him—hostis humanis generis, an enemy of all mankind.”

The Pinochet File: A Declassified Dossier on Atrocity and Accountability (Barcelona: Critica, 2013)

The ruling was groundbreaking. By asserting its authority to enforce international human rights norms, the Second Circuit opened the U.S. federal court system to victims of human rights violations and their families, no matter their country of origin. Human rights attorneys took notice and filed dozens of new cases, quickly expanding the reach of the Alien Tort Statute beyond Filártiga. Successful lawsuits demonstrated that ATS could target not only material killers like Peña-Irala but also those who planned and ordered human rights violations. These lawsuits broadened the torts available under law from torture to extrajudicial execution, arbitrary detention, sexual violence, genocide, war crimes, and crimes against humanity. Cases targeted defendants from countries across the western hemisphere and around the world—from Peru and Argentina to Haiti, Honduras, Guatemala, Bolivia, Indonesia, the Philippines, Bosnia, and Rwanda. The Filártiga case was the precedent that paved the way for Spanish investigating judge Baltasar Garzón’s decision to go after former Chilean dictator Augusto Pinochet in London in 1998.

The pioneering work of the CJA richly illustrates the advantages of civil litigation. In one of its earliest strategic decisions as an organization, CJA decided to go after human rights violators from El Salvador. The group’s reasoning began with the amnesty law passed shortly after the country’s bloody 12-year civil war ended in 1992. Although the tactics used by security forces and government-supported death squads had left 75,000 civilians dead and countless more survivors of repression, the amnesty nullified efforts to prosecute human rights crimes there. Equally important for CJA was the U.S. role in funding, training, and arming El Salvador’s forces and supporting their brutal counterinsurgency campaign. “That was a huge motivation for us,” CJA Senior Legal Advisor Patty Blum told me. “We felt we had a responsibility to go forward with the cases because of the history of the United States in El Salvador.” Over the course of 14 years, CJA won more than $70 million USD in judgments in three lawsuits against former Salvadoran officers. Each one brought civil litigation to new heights: the first time in a contested case that a U.S. jury found a commander liable for crimes against humanity (Chávez v. Carranza); the first trial held anywhere for the 1980 assassination of Salvadoran Archbishop Oscar Romero (Doe v. Saravia); and a case that led to the deportation by the U.S. government of two former defense ministers of El Salvador (Romagoza Arce v. García).

Despite these advances, ATS decisions offer a fairly weak version of justice. The majority end in default, meaning the defendant simply doesn’t show up and the judgment is issued in his absence. By the time the Filártiga family was awarded $10 million USD in damages by the Second Circuit, Peña-Irala had been deported. (He was never criminally prosecuted and today lives in Luque, Paraguay.) Victims rarely receive any of the money granted to them when they win. And the United States government has been infuriatingly slow to remove violators from the country after they are found liable, even in the rare instances when their nation of origin has filed a formal extradition request. Pablo Barrientos is one of those rare instances: the Supreme Court of Chile issued a request for his extradition in 2013. Whether he remains on U.S. soil because he is a naturalized citizen—making extradition legally complicated—or because the United States is reluctant to remove a soldier in what was a U.S.-supported coup— making extradition politically complicated—is unclear, even to human rights lawyers.

The Alien Tort Statute is also restricted to foreign plaintiffs, thus prohibiting U.S. citizens from bringing similar complaints before U.S. courts. That flaw was remedied somewhat in 1991, when Congress passed the Torture Victim Protection Act (TVPA) to permit U.S. citizens and foreigners alike to file cases for acts of torture or extrajudicial killing abroad. In 1992, Sister Dianna Ortiz became the first person to file a suit under TVPA, suing former Guatemalan military general and defense minister Héctor Gramajo for his command responsibility in her kidnapping, rape, and torture by Guatemalan security forces in 1989. Ortiz was awarded a default judgement of $5 million USD in 1995. However, TVPA does not cover any of the wide range of human rights abuses recognized in ATS litigation, making it a more limited tool. Given a history of messy, sometimes conflicting, jurisprudence on ATS, human rights attorneys today tend to sue under a combination of both statutes as a way of widening their legal net.

Unsurprisingly, there has been strong pushback against ATS/TVPA litigation from conservative legal scholars. Many consider it a violation of U.S. sovereignty that subjects the United States to a form of universal jurisdiction. In his dissent on the first Supreme Court ruling to address the Alien Tort Statute, Sosa v. Álvarez-Machaín—a 2004 decision that affirmed victims’ rights to seek redress in U.S. courts—the late Justice Antonin Scalia called the modern iteration of ATS “a 20th-century invention of internationalist law professors and human rights advocates.” When human rights lawyers began developing cases against transnational corporations, conservative animus became a fierce backlash. The Supreme Court’s 2013 decision in Kiobel v. Royal Dutch Petroleum Co. damaged ATS by stating that the Nigerian plaintiffs’ claims that Royal Dutch Shell colluded with the Nigerian government to unleash a campaign of violence against protesters of oil exploration did not concern the United States “with sufficient force,” given Shell’s “mere corporate presence” in the U.S. The ruling has sent legal experts scrambling to interpret whether or not Kiobel definitively spells the end to using ATS against private companies. In a separate decision, Mohamad v. Palestinian Authority, issued in 2012, the court diminished the scope of the TVPA when it ruled that only individuals, not companies or foreign powers, may be held liable under the Act.

Attacks notwithstanding, the ATS strategy remains relevant and new cases are filed every year. The difference between the Filártiga era and today is that there is a multiplicity of paths to challenging the impunity of notorious human rights abusers. For one, there are new laws targeting international human rights crimes, such as the Trafficking Victims Protection Act (2000) and the Child Soldiers Prevention Act (2008), making TVPA just one of many sources of legal recourse. Both the U.S. Justice Department and the Department of Homeland Security (through Immigration and Customs Enforcement) now have special units to hunt down human rights violators— deporting some and winning convictions against others for falsifying their visa or citizenship applications. The units have found five Guatemalan fugitive soldiers involved in the 1982 Dos Erres massacre. All but one are currently in prison. (The fifth was arrested as this article was going to press.)

Countries like Spain, Belgium, and Italy have also taken on criminal investigations of international human rights crimes. They include a case brought by CJR before the Spanish National Court to try Salvadoran officers for the assassination of six Jesuit priests, their housekeeper, and her daughter in 1989. Groups in Canada are pursuing litigation against mining companies that have targeted protesters with violence. The American Civil Liberties Union has even brought TVPA charges against two American psychologists accused of designing the CIA’s post-9/11 torture program.

And just as the human rights attorneys who pioneered the ATS/TVPA strategy always hoped, a few of their lawsuits have directly contributed to justice in Latin America. Last September, two Peruvian army officers who were sued by CJA, found liable, and then shipped back to Peru by the U.S government for their role in the 1985 Accomarca massacre, were found guilty of homicide and forced disappearance in the Accomarca case. This time it was a criminal trial, held in Lima, before Peruvian magistrates.

Although Pablo Barrientos remains in the United States for now, the jury decision finding him liable for Víctor Jara’s murder gave his family tremendous satisfaction. Asked what she felt upon hearing the verdict, Joan Jara told the press, “Happiness—and incredulity.” She stood on the steps outside the courthouse, flanked by her daughters. “What we were trying to do for more than forty years for Víctor has today come true,” Jara said through her tears. “It’s the beginning of justice … ”

Thanks to Bea Abbott for her research assistance.