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Mission for Establishment of Human Rights in
Iran (MEHR IRAN) THE OPTIONS AVAILABLE FOR PURSUING HUMAN RIGHTS VIOLATORS THIS DOCUMENT IS
PREPARED BY MEHR’S LAWYERS TO PROVIDE AN OVERVIEW OF THE OPTIONS AVAILABLE
FOR PURSUING HUMAN RIGHTS VIOLATORS WHO RESIDE IN, HAVE ASSETS IN, OR ARE
PASSING THROUGH THE UNITED STATES, AND TO COMMENT UPON HOW THE U.S. IS DOING
IN MEETING ITS OBLIGATIONS UNDER THE CONVENTION AGAINST TORTURE. THERE ARE ALSO COMMENTS UPON PROPOSALS FOR
EXPANDING THE ARSENAL OF LAWS IN THE U.S. TO FACILITATE ACTION AGAINST
PERPETRATORS. THERE ARE A VARIETY
OF POTENTIAL STRATEGIES AVAILABLE FOR PURSUING HUMAN RIGHTS VIOLATORS IN THE
U.S.: 1. EXTRADITION FOR PROSECUTION, OR
PROSECUTION IN U.S. COURTS (AS MOST OF YOU ARE AWARE, ART. 7.1 OF THE
CONVENTION AGAINST TORTURE CREATES AN AFFIRMATIVE DUTY OF STATES PARTIES TO
THE C.A.T. TO INVESTIGATE AND PROSECUTE OR EXTRADITE FOR PROSECUTION ALLEGED
TORTURERS ON U.S. SOIL). PROSECUTION
OR EXTRADITION SHOULD BE THE FIRST CHOICE OF OFFICIALS, IN ORDER TO MEET ART.
7 OBLIGATIONS. (SINCE THE REAGAN ADMINISTRATION FIRST BEGAN DISCUSSION THE
U.S. POSITION VIS-À-VIS THE C.A.T., U.S. GOVERNMENT OFFICIALS HAVE MADE CLEAR
THAT THERE IS A STRONG PREFERENCE FOR EXTRADITION, TURNING TO PROSECUTIONS IN
THE U.S. ONLY WHEN EXTRADITION IS NOT AN ADEQUATE ALTERNATIVE.) EXTRADITION
CAN BE TO COUNTRY WHERE THE VIOLATION OCCURRED, OR OTHER COUNTRIES SEEKING TO PROSECUTE. 2. THE U.S. IS ALSO BOUND TO PROVIDE
ASSISTANCE IN INVESTIGATIONS AND PROSECUTIONS OF ALLEGED TORTURERS WHICH ARE
BEING PURSUED IN OTHER COUNTRIES (UNDER ART. 9). 3. A THIRD OPTION AREA IS DEPORTATION OR
REMOVAL – A STRATEGY WHICH HISTORICALLY HAS BEEN ADOPTED FOR CASES INVOLVING
ALLEGED WAR CRIMINALS IN THE U.S., THROUGH THE OFFICE OF SPECIAL
INVESTIGATIONS AT THE D.O.J. ALTHOUGH
IT CAN BE “EASIER,” STRATEGIES PURSUING DEPORTATION OR REMOVAL ARE NOT
OPTIMAL REMEDIES, FOR A NUMBER OF REASONS: -
NO GUARANTEE THAT THE INDIVIDUAL WILL BE PROSECUTED IF DEPORTED; MAY RETURN
TO COMMIT ADDITIONAL CRIMES WITH IMPUNITY/MERE INCONVIENCE -
MAY BE PROBLEMS WITH FOREIGN PROSECUTION; MAY NOT RECEIVE FULL DUE PROCESS
PROTECTIONS WHICH ATTACH IN EXTRADITION OR U.S. PROSECUTIONS; MAY BE
SUBJECTED TO TORTURE OR OTHER VIOLATIONS HIMSELF -
POLICY INVOLVING PRIMARILY IMMIGRATION STRATEGIES FOR PURSUING TORTURERS IN
THE U.S. WOULD VIOLATE U.S. OBLIGATION TO PROSECUTE OR EXTRADITE UNDER THE
C.A.T. HOWEVER,
THERE ARE CLEARLY MANY CASES IN WHICH EXTRADITION IS NOT AN OPTION (E.G.,
WHERE THERE IS NO TREATY) AND WHERE PROSECUTORS WILL NOT PROSECUTE, AND I
WOULD NOT ARGUE THAT DEPORTATION SHOULD NOT BE CONSIDERED IF
EXTRADITION/PROSECUTION ARE NOT VIABLE OPTIONS. 4. A FOURTH OPTION AREA FOR PURSUING HUMAN
RIGHTS VIOLATORS IN THE U.S. INVOLVES PURSUING CIVIL REMEDIES UNDER THE ALIEN
TORT CLAIMS ACT, ONE OF THE FIRST LAWS PASSED BY U.S. CONGRESS – WAY BACK IN
1789 – OR UNDER THE TORTURE VICTIM PROTECTION ACT. THESE U.S. STATUTES, CODIFIED AT 28 U.S.C. 1350, ALLOW CASES TO
BE BROUGHT IN U.S. FEDERAL COURTS AGAINST INDIVIDUAL
PERPETRATORS WITH DIRECT INVOLVEMENT IN THE TORTURE (E.G., NIKOLA
VUCKOVIC OR PENA IRALA), OR THOSE WITH COMMAND
RESPONSIBILITY (E.G., THOSE WHO
KNEW OR SHOULD HAVE KNOWN THAT THEIR SUBORDINATES HAD COMMITTED, OR WERE
ABOUT TO COMMIT, ABUSES, AND FAILED TO TAKE “REASONABLE AND NECESSARY”
MEASURES TO PREVENT THOSE ACTS OR TO PUNISH THE SUBORDINATES. (E.G, GENLS
VIDES CASANOVA AND GARCIA, SALVADORAN MINISTERS OF DEFENSE CHALLENGED IN THE
CHURCHWOMEN CASE AND IN A CASE BY FOUR SALVADORAN TORTURE SURVIVORS NOW
LIVING IN THE U.S., WHICH GOES TO TRIAL IN MAY; OR CASE INVOLVING THE THIRD-RANKING
MEMBER OF THE INDONESIAN MILITARY, GENERAL JOHNY LUMINTANG, WHICH GOES TO
DEFAULT TRIAL HERE IN WASHINGTON TOMORROW MORNING BEFORE FEDERAL JUDGE ALLEN
KAY, 3RD AND CONSTITUTION/JUDICIARY SQUARE). THE ATCA WAS
PASSED TO ALLOW SUITES TO BE FILED IN U.S. COURTS FOR TORTS COMMITTED ABROAD,
E.G., PIRACY, BUT WENT VIRTUALLY UNUSED UNTIL THE LATE 1970s, WHEN LAW
STUDENTS AND ATTORNEYS AT CCR IN NEW YORK TRIED USING THE STATUTE TO ALLOW
THE FAMILIES OF JOELITO FILARTIGA TO BRING SUIT AGAINST ONE OF THE PARAGUAYAN
POLICEMEN WHO WAS ALLEGEDLY INVOLVED IN JOELITO’S TORTURE AND SUBSEQUENT
DEATH. THE FED. DIST. CT. JUDGE WHO INITIALLY RECEIVED THE CASE DISMISSED THE
COMPLAINT, STATING THAT THE ATCA WAS NOT INTENDED TO CONFER JURISDICTION FOR
ACTS OF TORTURE COMMITTED OVERSEAS.
ON APPEAL, HOWEVER, THESECOND CIRCUIT REVERSED, HOLDING THAT THE ATCA
AFFORDS TORTURE VICTIMS OR THEIR SURVIVORS BOTH A FORUM AND A RIGHT TO
COMPENSATION UNDER U.S. LAW: “FOR THE PURPOSES OF CIVIL LIABILITY, THE
TORTURER HAS BECOME, LIKE THE PIRATE AND THE SLAVE TRADER BEFORE HIM, HOSTIS
HUMANI GENERIS, AN ENEMY OF ALL MANKIND.” IN A SERIES OF
SUBSEQUENT CASES, THE FEDERAL COURTS HAVE CONFIRMED THAT THE ATCA GRANTS
JURISDICTION TO FEDERAL COURTS TO CONSIDER CLAIMS FOR VIOLATIONS OF FUNDAMENTAL
NORMS OF INTERNATIONAL LAW, SUCH AS TORTURE, SUMMARY EXECUTION,
DISAPPEARANCE, ARBITRARY DETENTION, CRUEL, INHUMAN AND DEGRADING TREATMENT,
CRIMES AGAINST HUMANITY AND WAR CRIMES. IN 1992, THE
U.S. CONGRESS GAVE ITS MODERN-DAY STAMP OF APPROVAL TO THE USE OF THE ATCA TO
PROVIDE REDRESS IN U.S. COURTS FOR HUMAN RIGHTS VIOLATIONS COMMITTED OUTSIDE
THE U.S., SPECIFICALLY LEAVING THE ATCA IN PLACE BUT PASSING THE TORTURE
VICTIM PROTECTION ACT (TVPA), WHICH REMEDIES A PRIOR DRAWBACK OF THE ATCA BY
ALLOWING U.S. CITIZENS AS WELL AS ALIENS TO BRING SUIT IN CASES INVOLVING
TORTURE AND SUMMARY EXECUTION (ONLY ALIENS/NON-CITIZENS CAN BRING SUIT UNDER
THE ATCA). THE TVPA CREATES
A FEDERAL CAUSE OF ACTION FOR TORTURE AND EXECUTION COMMITTED ANYWHERE IN THE
WORLD, BY INDIVIDUALS WHO,
WITH ACTUAL OR APPARENT AUTHORITY, OR UNDER COLOR OF LAW, OF ANY FOREIGN
NATION, (1) SUBJECTS AN INDIVIDUAL TO TORTURE OR (2) SUBJECTS AN INDIVIDUAL
TO EXTRAJUDICIAL KILLING, SHALL, IN A CIVIL ACTION, BE HELD LIABLE FOR
DAMAGES TO THAT INDIVIDUAL OR THE INDIVIDUAL’S LEGAL REPRESENTATIVE. (COURTS ALSO
HAVE “FEDERAL QUESTION” JURISDICTION IN THESE CASES PURSUANT TO 28 USC 1331,
WHICH PROVIDES FEDERAL SUBJECT MATTER JURISDICTION IN CASES “ARISING UNDER”
U.S. LAW (CUSTOMY INTERNATIONAL LAW IS PART OF FEDERAL COMMON LAW.) TO EXAMINE
WHETHER THE U.S. IS FALLING SHORT OF ITS OBLIGATIONS TO HOLD PERPETRATORS
ACCOUNTABLE, LET’S LOOK AT SEVERAL CASES WHICH CRY OUT FOR ATTENTION: · CASE OF KELBASSA NEGAWA, AN ETHIOPIAN
LIVING IN ATLANTA WHO WAS HELD CIVILLY LIABLE IN 1993 FOR HIS DIRECT
INVOLVEMENT IN ACTS CONSTITUTING TORTURE AND CRUEL, INHUMAN AND DEGRADING
TREATMENT, THEN GRANTED CITIZENSHIP IN THE U.S.; · CASE OF ARMANDO FERNANDEZ LARIOS, A
CHILEAN NOW LIVING IN MIAMI WHO IS AN EX-DINA MEMBER WHO ENTERED A PLEA
BARGAIN IN THE LETELIER MOFFITT BOMBING WHICH RESULTED IN ONLY A FEW MONTHS
OF JAIL TIME, AND WAS ALSO A MEMBER OF THE HELICOPTER-BORNE DEATH SQUAD
ALLEGEDLY RESPONSIBLE FOR THE CARAVAN OF DEATH KILLINGS IN CHILE IN 1973,
WHOSE EXTRADITION WAS REQUESTED BY JUDGE GUZMAN OVER A YEAR AGO, BUT HAS NOT
– TO MY KNOWLEDGE – BEEN ACTED UPON; · CASE OF NICOLA VUCKOVIC, ALSO LIVING IN
THE ATLANTA AREA, A MEMBER OF THE BOSNIAN SERB ARMY ALLEGED TO HAVE BEEN
DIRECTLY INVOLVED IN TORTURING BOSNIAN MUSLIMS IN NORTHERN BOSNIA IN 1992,
TWO OF WHOM ARE NOW LIVING IN THE U.S. · CASE OF TOTO CONSTANT OF HAITI, LIVING
OPENLY AND NOTORIOUSLY IN NEW YORK; · CASE OF TOMAS RICARDO ANDERSON KOHATSU, A
PERUVIAN INTELLIGENCE OFFICIAL LINKED TO THE TORTURE AND DISMEMBERMENT OF ONE FELLOW INTELLIGENCE
OFFICER AND TO THE TORTURE AND PARALYSIS OF ANOTHER (JOSE MIGUEL VIVANCO IS
TO TALK FURTHER ABOUT THIS CASE). IN ALL OF THESE
CASES, AND MANY OTHERS WHICH HAVE BEEN REFERRED TO GOVERNMENT AUTHORITIES --
SOME OF WHICH AROSE PRIOR TO U.S. RATIFICATION OF THE C.A.T. IN 1994, SOME
SINCE – NO DISCERNABLE ACTION HAS BEEN TAKEN TO EXTRADITE, PROSECUTE, OR
APPLY AVAILABLE IMMIGRATION REMEDIES. GRANTED, THERE
MUST BE SOME LATITUDE GIVEN TO THE GOVERNMENT IN THAT C.A.T.’S ART. 7.1 DOES
NOT REQUIRE PROSECUTION AND/OR EXTRADITION IN EVERY REPORTED CASE. THE DECISION TO PROSECUTE OR TO EXTRADITE
ENTAILS A JUDGEMENT AS TO WHETHER A SUFFICIENT LEGAL AND FACTUAL BASIS EXISTS
FOR SUCH AN ACTION. AND, THE DOJ HAS
TAKEN SEVERAL STEPS TOWARD ACTION, E.G., IN THE ANDERSON KOHATSU CASE (BEFORE
THE STATE DEPARTMENT STEPPED IN AND CLAIMED THAT ANDERSON KOHATSU HAD
DIPLOMATIC IMMUNITY AND COULD NOT BE ARRESTED), AND IN EXECUTING “OPERATION
HOME RUN” (A TACTICAL OPERATION
DESIGNED TO LOCATE, DETAIN AND DEPORT 14 ALLEGED PERPETRATORS LIVING IN
SOUTHERN FLORIDA WHO ARE ALLEGED TO HAVE COMMITTED HUMAN RIGHTS ABUSES IN
ANGOLA, HAITI AND PERU), AND WE KNOW THAT THEY ARE ACTIVELY INVESTIGATING
OTHER CASES. THE DOJ IS
SIGNIFICANTLY RESTRICTING POTENTIAL CASES WHICH MIGHT BE PURSUED, HOWEVER, IN
THAT ACCORDING TO ITS ANALYSIS, INDIVIDUALS CANNOT BE PROSECUTED OR
EXTRADITED FROM THE U.S. IF THE CRIMES INVOLVED WERE COMMITTED BEFORE THE
U.S. RATIFIED THE CONVENTION AGAINST TORTURE IN NOVEMBER OF 1994 AND ADOPTED
IMPLEMENTING LEGISLATION AT 18 USC 2340A IN THE CRIMINAL CODE; SINCE,
ACCORDING TO THIS ANALYSIS, SUCH CRIMINAL PROSECUTION WOULD PURPORTEDLY
VIOLATE THE EX-POST FACTO PROHIBITION IN THE U.S. CONSTITUTION. MANY SCHOLARS
WOULD CHALLENGE THIS POSITION, HOWEVER, IN THAT THE EX POST FACTO ISSUE
REVOLVES AROUND THE ACCUSED’S RIGHT TO FAIR WARNING AND FAIR TREATMENT. INTERNATIONAL LAW AND OTHER SOURCES MAY
ESTABLISH THIS FAIR WARNING EVEN BEFORE THESE SOURCES ARE CODIFIED IN FEDERAL
STATUTE. CHANGES IN LAWS
WHICH AFFECT MATTERS OF JUDICIAL PROCEDURE, INCLUDING THE PLACE OF
TRIAL, GENERALLY DO NOT OFFEND THE EX
POST FACTO CLAUSE (SEE, FOR EXAMPLE, POST V. U.S., 161 U.S. 583 (1896), OR
GUT V. STATE, 76 U.S. 35 (1870), OR COOK V. U.S., 138 U.S. 157 (1891), BECAUSE
CONCERNS OVER FAIR WARNING AND NOTICE ARE NOT EVIDENT. NO ONE CAN
REASONABLY ARGUE THAT ACTS OF TORTURE ARE NOT UNIVERSALLY CONDEMNED AND
THEREFORE, THAT THEY WERE UNAWARE OF THE ILLEGALITY OF COMMITTING SUCH
ACTS. 18 USC 2340A DOES NOT
CRIMINALIZE WHAT HAD ONCE BEEN INNOCENT CONDUCT. TORTURE HAS LONG BEEN
RECOGNIZED TO BE A VIOLATION OF BOTH NATIONAL AND INTERNATIONAL LAW, AND NO
COUNTRY PURPORTS TO LEGALIZE ACTS OF TORTURE. CONCLUSIONS: · US DOJ SHOULD RECONSIDER ITS POSITION
REGARDING THE INAPPLICABILITY OF 2340A TO CASES ARISING PRIOR TO 1994. · US STATE DEPARTMENT MUST BE EDUCATED,
ALONGSIDE THE DOJ/INS, REGARDING U.S. OBLIGATIONS UNDER THE C.A.T. · US DOJ AND OTHER DEPARTMENTS SHOULD ACT
TO ACTIVELY FACILITATE EXTRADITION (IF NOT TO THE COUNTRY WHERE THE VIOLATION
OCCURRED, THEN TO OTHER COUNTRIES WITH AN INTEREST IN PROSECUTING THE CASE),
AND THEY MUST MORE ACTIVELY PROMOTE INVESTIGATIVE ASSISTANCE IN CASES
INVOLVING TORTURE AND EXTRAJUDICIAL EXECUTION · EVEN WHEN IT MAY BE EMBARRASSING OR
AWKWARD TO DO SO DUE TO PAST (OR PRESENT) U.S. SUPPORT OF THOSE ALLEGED TO BE
RESPONSIBLE · THE GOVERNMENT SHOULD BE COMMENDED FOR
ITS PASSAGE OF THE TVPA AND TVRA, AND ADDITIONAL APPROPRIATEIONS FOR
REHABILITATION AND TREATMENT OF TORTURE VICTIMS AND THEIR FAMILIES SHOULD BE
MADE AVAILABLE. · GOVERNMENT SHOULD BE ENCOURAGED TO
PROVIDE POSSIBLE ASSISTANCE IN ENFORCING MONETARY JUDGMENTS AGAINST HUMAN RIGHTS VIOLATORS. · CONGRESS SHOULD ACT TO CLOSE GAPS IN
EXISTING LAWS AND TO PROVIDE ADDITIONAL MECHANISMS FOR HOLDING HUMAN RIGHTS
VIOLATORS ACCOUNTABLE FOR THEIR CRIMES – BUT NOT BY PURSUING EXCLUSIVELY
IMMIGRATION-ORIENTED REMEDIES SUCH AS THE ANTI-ATROCITY ALIEN DEPORTATION ACT
WHICH FOCUSED EXCLUSIVELY ON IMMIGRATION REMEDIES – PURSUING IMMIGRATION
REMEDIES ALONE WOULD VIOLATE U.S. OBLIGATIONS UNDER ART. 7.1 OF THE C.A.T.,
AND MAY RESULT IN SELECTIVE, DISCRIMINATORY ENFORCEMENT OF THOSE PERPETRATORS
FROM COUNTRIES THE U.S. IS NOT AFRAID OF OFFENDING. |