From political repression to torturer impunity: The narrowing of filártiga v. Peña-Irala

This chapter explores the roots of anti-impunity discourse in one field: human rights litigation brought before US courts. It revisits the landmark 1980 decision in Filártiga v. Peña-Irala, the first case in which a US court ruled that international human rights claims could be brought in federal courts under the Alien Tort Statute (ATS). The ATS provides that federal courts have “jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” The statute had been rarely invoked since its enactment in 1789, until the Court of Appeals for the Second Circuit held in Filártiga that the statute granted federal courts jurisdiction over a tort claim brought by the family of a young Paraguayan man against a former Paraguayan police officer for torturing the young man to death in Paraguay. For the next three decades, US courts generally followed in the footsteps of Filártiga, and opened their doors to damage lawsuits by foreign victims of gross human rights violations occurring abroad. The case has been called the Brown v. Board of Education of international human rights litigation, and applauded for promoting human rights accountability. It has also been hailed as a model that should inspire other countries to recognize universal civil jurisdiction – that is, jurisdiction in civil litigation grounded not on a link between the case and the forum, but on the universality of the norm invoked, the paradigmatic norm being the prohibition of torture. Filártiga's landmark quality has only increased since the US Supreme Court restrictively interpreted the ATS in 2013, holding in Kiobel v. Royal Dutch Petroleum that the statute does not generally apply to violations of international law occurring outside US territory. In the wake of Kiobel, Filártiga has come to be invoked as the symbol of a gilded and perhaps lost age. This chapter offers a more critical reading of the court rulings in Filártiga that exposes some limitations of universal civil jurisdiction. In doing so, it also reveals the need for a theoretical paradigm of universal jurisdiction that could encompass larger structures of injustice rather than remaining tied to individualized guilt and physical violence.