American Transitional Justice: Writing Cold War History in Human Rights Litigation

Abstract

This book revisits Filártiga and Marcos, two seminal human rights cases litigated in the United States under the Alien Tort Statute, and ostensibly concerning torture in Paraguay and the Philippines, respectively. Analysing the historical narratives produced by the participants in the litigation, it suggests viewing these lawsuits as transitional justice trials. Like criminal trials in times of regime change that address past violence all the while establishing the foundations of the new order, these cases provided historical accounts of violence within the Western bloc while expressing a new role for the United States in relation to its former allies at the end of the Cold War. Yet the story told in this book is not one about U.S. officials consciously planning a transitional justice policy. Instead, it is a complex story of the interaction and conflicts among a variety of actors operating within the legal and political constraints of transnational tort lawsuits. This book thus describes “American transitional justice” in two senses: first, a legal mechanism performing the transition of the United States and its allies out of the Cold War order; and second, an approach to transitional justice drawing on the U.S. tradition of privatizing public interest litigation. Combining legal analysis, archival research and ethnographic methods, the book follows these cases from their inception in the 1970s and 1980s through litigation to their interpretation and mobilization out of court in the press and other sites of public discourse in the United States, Paraguay and the Philippines to this day. It reveals that U.S. courts produced a whitewashed history of U.S. involvement in repression in the Western bloc, while in Paraguay and the Philippines the legal and cultural distance from U.S. courts allowed for a more critical narration of the lawsuits and their underlying violence as symptomatic of structural injustice. By exposing the meanings of these legal landmarks for three societies, the book sheds light on the blend of hegemonic and emancipatory implications of international human rights litigation in U.S. courts.