Filartiga’s Legacy in an Era of Military Privatization

Rutgers Law Journal, Vol. 37, p. 703, 2006

12 Pages Posted: 29 May 2009

See all articles by Laura Dickinson

Laura Dickinson

George Washington University - Law School

Date Written: 2006

Abstract

Filartiga v. Pena-Irala established the idea that domestic tort suits might be brought under the Alien Tort Claims Act ("ATCA") against those accused of violating human rights norms. But what is the legacy of this case in an era of military privatization? Are there available legal responses to what we might call the privatization of torture? In the Abu Ghraib prison in Iraq, where detainees were tortured and abused, the individuals involved in the torture included not only members of the military, but contractors hired from the private sector. Because U.S. constitutional scrutiny traditionally applies only to state actors, privatization has been seen as potentially undermining constitutional oversight. Moreover, because many international human rights are framed as rights against state overreaching, the turn to private actors might appear to present a significant problem for legal accountability.

Yet, military outsourcing may not, by itself, pose quite as serious an impediment to accountability. To the contrary, human rights abuses by private contractors may actually be more readily subject to legal action than abuses by official governmental actors, both through civil suits under the ATCA to redress violations of international human rights law, and through civil and criminal litigation to redress violations of domestic law. Using the Abu Ghraib prison abuse as a case study, this Essay will compare the possible forms of legal accountability for official governmental actors and private contractors, and suggest that the latter are at least as likely, and perhaps more likely, to be held accountable for abuses.

Keywords: torture, human rights, Alien Tort Claims Act

Suggested Citation

Dickinson, Laura, Filartiga’s Legacy in an Era of Military Privatization (2006). Rutgers Law Journal, Vol. 37, p. 703, 2006. Available at SSRN: https://ssrn.com/abstract=1411399

Laura Dickinson (Contact Author)

George Washington University - Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States

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