Defining Filartiga: Characterizing International Torture Claims in United States Courts
Dickinson Journal of International Law, Vol. 3, p. 1 (1984)
42 Pages Posted: 3 Nov 2013
Date Written: 1984
On March 29, 1976, Paraguayan police abducted seventeen-year-old Joelito Filartiga from his parents' home just outside Asuncion. He died sometime later that day from a combination of beatings and electrical shocks and burns. Joelito's offense was being the son of Dr. Joel Filartiga, a physician who was himself tortured and imprisoned three times for his open opposition to President Alfredo Stroessner.
Since the Nuremburg trials and the attendant worldwide reaction to Nazi atrocities, the world has taken an increasing interest in preventing government torture. Whenever legal fictions such as national borders and other sovereignty concepts have acted as barriers to torture prevention, the world has responded, slowly and incrementally, with new legal fictions to overcome those barriers. A recent case in a United States federal court, Filartiga v. Pena-Irala, is a significant new increment toward the prevention of torture and more generally international protection of human rights. The case further provides for jurisdiction in a disinterested forum for individual torture claims.
Along with Filartiga's promise are many problematic issues: the jurisdictional theory, the validity of international torture norms, choice of law, and the real value of such lawsuits.Threaded among these problems is a more fundamental question pertaining to the nature of this action -- what kind of lawsuit is Filartiga? It is a claim under customary international law brought in a United States federal court. The claim is based on events which occurred in Paraguay for the death of Paraguayan at the hands of a Paraguayan official. Because of these unusual elements, the Filartiga action has been called many things: an international action, an action under federal common law, a transitory tor, a dedoublement fonctionnel action, an instance of universal jurisdiction, and an example of protective jurisdiction.
Filartiga cannot be all of these things. Some are mutually exclusive. Others are potential complements, such as the international action and federal common law, or the transitory tort and universal jurisdiction. Although these labels address different aspects of the Filartiga action, they are all interrelated. Each has legal implications for Filartiga's jurisdiction, choice of law, or both. It is therefore necessary to characterize -- or define -- the Filartiga action.
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