Translating Filártiga: A Comparative and International Law Analysis of Domestic Remedies for International Human Rights Violations
27 Yale J. Int’l L. 1 (2002)
60 Pages Posted: 7 Aug 2012
Date Written: 2002
Human rights activists, litigators and scholars are actively seeking means to hold accountable those responsible for egregious human rights abuses. In the absence of effective international enforcement mechanisms, domestic courts play an important role in the effort to implement international human rights norms. In most of the world, domestic enforcement efforts focus on criminal prosecutions. Most dramatically, Chilean General Augusto Pinochet was arrested in England in 1998 and held for extradition to Spain to face criminal charges. By contrast, efforts in the United States have focused on civil human rights litigation. Had General Pinochet come to the United States instead of to England, he is far more likely to have been sued than arrested.
Civil human rights litigation in the United States began in 1980 with the Second Circuit’s decision in Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980), followed by a series of cases that have further developed U.S. civil remedies for international human rights violations. U.S. attorneys regularly ask why there have been no Filártiga lawsuits in other countries. The key to unraveling this puzzle is to recognize the impact of differences in legal procedure and legal culture. Several procedural and cultural characteristics of the U.S. legal system lead to civil lawsuits for human rights violations. Other legal systems offer instead a range of administrative and judicial remedies for wrongs that may be styled as human rights violations, torts or crimes; filed against both domestic and foreign defendants; for violations committed both at home and abroad. These varied legal mechanisms represent the “translation” into domestic legal systems of the international law principle of accountability for human rights violations. Each implements the international mandate to hold responsible perpetrators of human rights abuses, provide remedies for victims of those violations, and deter future abuses.
Victims of human rights violations the world over face disheartening struggles for justice as they seek remedies for their injuries, punishment of those responsible, and assurance that future abuses will be deterred. They utilize a wide range of international and domestic mechanisms in that quest, including both criminal and civil actions. An understanding of the varied means by which common goals can be attained contributes to the development of these remedies and strengthens accountability principles.
Keywords: filartiga, alien tort, universal jurisdiction, human rights accountability, translating filartiga
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