Eight Kanjobal Indians who say they were persecuted or tortured by Guatemalan officials 10 years ago will soon make their case for monetary damages. Their case will be heard by a U.S. judge in Boston.
The case illustrates the growing domain of U.S. courts in human rights disputes with little link to the U.S. although the wend is relatively new U.S. judges have accepted about a dozen such cases in recent years.
The cases are usually filed by residents of foreign countries seeking to establish that officials of their own nations are civilly liable for acts of government sponsored oppression and persecution.
Human-rights lawyers say the cases have arisen in part because political reforms abroad are unearthing past abuses and enabling victims to communicate with U.S. legal experts.
In addition last spring Congress passed the Torture Victims Protection Act which boosted the rights of victims to sue. In response to ambiguity about whether Congress originally intended to allow these cases into the courts the act explicitly allows foreign plaintiffs to sue in situations involving torture and summary execution.
So far most of these cases have been based largely on international law proscriptions against torture and on an obscure statute from 1789 that suggests foreigners can bring some civil liability Suits against other foreigners in federal courts. The only required connection with the U.S. is that the defendants must be either residing or traveling here so that they can be served with notice of the suit.
Human-rights activists say the success of these cases before trial judges and some federal appeals courts reflects a deepening consensus that law crosses national borders and that violation of certain fundamental rights shouldn’t go unpunished even if only a foreign tribunal will enforce them.
The cases demonstrate that “the Rube Goldberg machinery of an American civil trial can be used to advance international human rights” said Ralph Steinhardt a George Washington University law professor who has represented plaintiffs in two such cases.
Critics say U.S. judges shouldn’t be involved in the political affairs of foreign governments. They cite these cases as evidence that in spite of calls to curb the federal docket U.S. courts continue to bring more cases within their jurisdiction.
These cases illustrate that many U.S. courts have an overly expansive perception “of their competence and powers” said former federal appeals judge Robert Bork who wrote an opinion in 1984 that opposed jurisdiction in a foreign human rights case.
Human-rights lawyers acknowledge that U.S. courts may not be the ideal forum for resolving these disputes. Conducting such trials in the U.S. rather than in the parties own country makes it harder to gather evidence and present witnesses Moreover if a foreign defendant has not assets in the U.S it can be difficult for the plaintiffs to collect damages.
Still international courts generally lack authority to grant monetary damages in such cases said Prof. Steinharadt of George Washington University. In addition the plaintiffs often can’t get a fair trial in their own country.
In the Kanjobal Indian case for instance criminal charges have been brought in Guatemala against Gen. Gramajo. But the proceedings have languished because the judges lawyers and witnesses involved fear for that safety said Beth Stephens a lawyer with the New York based Center for Constitutional Rights which represents several plaintiffs in foreign human-rights cases.
To suggest that many of these plaintiffs could attain justice elsewhere simply represents “the triumph of hope over experience” said Prof. Steinhardt.
(Courtesy The Wall Street Journal Oct.16, 1992)
Article extracted from this publication >> November 6, 1992
