UNITED STATES DISTRICT COURT

EASTREN DISTRICT OF NEW YORK

DOLLY M.E. FILARTIGA and

DR. JOEL FILARTIGA,

    Plaintiffs,

-against

AMERICO N. PENA-IRALA, et al.,

Defendants

Civil Action 79 C 917 (EHN)

PLANTIFFS' MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS PENA-IRALA'S
    MOTION TO DISMISS COMPLAINT AND VACATE STAY

PETER WEISS RHONDA COPELON JOHN W. CORWIN JOSE ANTONIO LUGO c/o Center for Constitutional Rights 853 Broadway New York, New York 10003

MICHAEL MAGGIO

Goren  Maggio

1801 Columbia Road N.W.

Washington, D.C. 20009

Attorneys for Plantiffs

    POINT I

THIS COURT CLEARLY HAS

JURISDICTION TO

ENTERTAIN PLAINTIFFS' SUIT

UNDER 28 U S C. SEC. 1350

. .

It is somewhat difficult to follow defendant Pena's argument on this point. On p. 6 of his brief, defendant, referring to Sec. 2 Article III of the Constitution, asks

Where in this grant is the authority of Congress to confer upon the United States District Courts jurisdiction over "any civil action by an alien for a tort only, commited in violation of the law of nations...."?

The answer is simple: The authority lies in the grant conferred upon the judicial power, in the first clause of Sec. 2 of Article III, to deal with "all cases....arising under ...the laws of the United States". In the words of Judge Lord, in Valanga v. Metropolitan Life Insurance Company (E.D.Pa. 1966) 259 F.Supp.324,327

Once a tort can be considered to be in violation of the law ofnations, Sec. 1350 allows immediate access to a federal court. It thus functions as an independent grant of federal jurisdiction in situations where the conduct of the parties so offends the standards of conduct underpinning international relations that it can be considered to be a violation of the law of nations. In such a capacity and unencumbered with minimal requisite jurisdictional amounts as found in the diversity of citizenship grant of jurisdiction (28 U.S.C. Sec. 1332), Sec. 1350 serves as an extraordinary channel of federal jurisdiction.

If defendant's query is intended to impugn the constitutionality of Sec. 1350, he might have chosen a more forthright way to do so. An examination of the relatively few cases decided under Sec. 1350 in its long but desultory career fails to reveal a single case raising a question as to whether the Alien Tort Claims Act, as Sec. 1350 is sometimes called, comes within the purview of Sec. 2 Article III of the Constitution, nor has defendant cited any such case. Professor Moore lists Sec. 1350 as one of many statutes conferring statutory jurisdiction upon the federal courts based on "special federal questions". 1 Moore's Federal Practice Sec. 8.09(2) fn 14. If, then, there is no inherent defect in Sec. 1350, ir remains only to examine whether plaintiffs' complaint meets the two requirements of the section, i.e., that it allege (1) a tort only, (2) in violation of the law of nations. As to the first, there is no controversy between the parties. As to the second, defendant includes, on p. 12 of his brief, a long citation from Abdul-Rahman Omar Adra v. Clift, 195 F.Supp. 857 (D.Md. 1961), which he correctly describes as the only modern case in which 1350 jurisdiction has been sustained based on the law of nations. This, followed by the defendant's excerpt at pp. 12 and 13, of the Second Circuit's decision in ITT v. Vencap, Ltd., 519 F.2nd 1001 (2d Cir.1975), is intended to pave the way for defendant's conclusion, at p.13, that since the alleged wrongful killing of a Paraguayan in Paraguay is not a violation of a standard, rule or custom which both (a) affects the relationship between states or between an individual and a foreign state and (b) is used by those states for their common good or in dealing with one another, such a wrongful killing is not a tort in violation of the law of nations within the meaning of Sec.1350.

It is doubtful whether the two-part definition of the phrase "in violation of the law of nations", enunciated by Judge Van Dusen in Lopes v. Reederei Richard Schroder, 225 F. Supp. 292, 297 (E.D.Pa. 1963) and adopted by the Second Circuit in ITT v. Vencap, Ltd. is a complete statement of the law on the subject. Judge Van Dusen's conclusion is based on one eighteenth century commentator (Burlamaqui) and two from the nineteeth century (Kent and Story). As will be shown below, international law, which is but another name for "the law of nations", has undergone an explosive development in the decades following \vorld War II, particularly inthe area of individual rights and the relationship between individual rights and duties and international law. It is noteworthy that Judge Van Dusen himself, on p. 295 of Lopes, had this to say:

The court's examination of the phrase "the law of nations" must consider the words used as part of an "organic growth." See Romero v. International Term, Operating Co., 358 U.S. 354, 360,79 S.Ct. 468, BL.Ed.2d 368 (1959).

However, even the Lopes/Vencap standard is easily met by the facts alleged in the complaint. For as long as human beings have been in contact with each other on this earth, they have sought to formulate a set of principles or norms, which, depending upon the level of ambition of the framers, would be regarded as the minimum acceptable, or the maximum desirable, standard of human behavior.

Following the rise and fall of Nazism and Fascism, the Allied powers organized a series of war crimes trials, of which the Nuremberg trials were only the most spectacular part. These trials introduced into the law of nations new principles of personal accountability and of collective international responsibility for and jurisdiction over the grossest kinds of human rights violations. Shortly thereafter, these principles made their way into the United Nations Charter and, primarily under the impetus of Mrs. Eleanor Roosevelt, into the Universal Declaration of Human Rights. In the last three decades, a veritable flurry of conventions, treaties and declarations has firmly enshrined in international law the prohibition against inhuman and degrading treatment. These include:

The International Convenant on Civil and Political Rights

General Assembly Resolution 2200 (X1), 16 December 1966

The Proclamation of Teheran UN Doc. A/Conf.32/41, UN Publ. E.68.XIV.2, endorsed by General Assembly Resolution 2442 (XXIII) 19 December 1968

The American Declaration of the Rights and Duties of Man Resolution XXX, Ninth Internation Conference of American States, Boqota, Colombia 30 March - 2 May 1948.

The American Convention on Human Rights OAS Treaty Series No. 36, at 1-21, 1969 OAS

The European Convention for the Protection of Human Rights and Fundamental Freedoms, and Protocals Thereunder.

Council of Europe, European Convention on Human Rights: Collected Texts, Section 1, Doc.1 (1971)

As a result, it is now generally accepted by the United States and the vast majority of other member nations of the United Nations that gross violations of human rights are, as a matter of international law, a legitimate concern of the world community.

A natural consequence of this development is that the level of domestic performance in the field of human rights has become one of the touchstones of relations between nations.

The notion that human rights should serve as a central tenet of U. S. foreign policy was first espoused by President Carter in his inaugural address. Since then, the treatment of foreign nationals by their own governments has emerged as an important factor in U. S. foreign policy formulation and practice. See Human Rights and U. S Policy Issue, No. IB77056, Foreisn Affairs and National Defense Division, Consressional Research Service, Library of Congress, Dec. 9, 1977.

International law serves as the source of this policy. This view was lucidly expressed by Deputy Assistant Secretary of State for Human Rights Schneider, in testimony before Congress in October 1977:

We have teased our actions on our obligations under the United Nations Charter and other international commitments, on our responsibilities under domestic law, and on our belief that the people of this country want a foreign policy that is in accord with our values. We believe that a foreign policy that fails to reflect those values will not receive, nor deserve, the support of the American people.

To those who argue that our concern for the human rights of people in other lands constitutes intervention, we say look to the Charter of the United Nations, to the Universal Declaration of Human Rights, to the Helsinki Final Act, to the Declaration Against Torture adopted by the United Nations in 1975, and to similar regional instruments and resolutions. llo nation in the world today can hide torture, apartheid, arbitrary imprisonment, censorship, or other such violations of human rights behind assertions of sovereignty. The denial of internationally recognized human rights and fundamental freedoms is a matter of international concern. Human Rights and U. S. Foreign Policy: A Review of the Administration Record, Hearings before the Subco~nittee on International Organizations, 95th Congress, 1st Session, October 25. 1977.

Thus, it is clear that the human rights component of our foreign policy is based upon the emergence of a norm of customary international conduct `.;hich prohibits violations of basic human rights.

During the past few years Congress has passed legislation to limit economic and military assistance to countries which violate internationally recognized human rights standards. Sec. 32 of the Foreign Assistance Act of 1973 (P.L. 93-189); Sec. 46 of theForeign Assistance Act of 1974 (P.L. 93-559); Sec. 310 of the International Development and Food Assistance Act of 1975 (P.L. 94-161); Sec. 301 of the International Security Assistaneeand Arms Export Control Act (P.L. 94-329). See also Weissbrodt, Human Rights Legislation and U. S. Poreign Policy, Georgia Journal of Int. Comp. Law, v. 7, summer 1977: 231-287.

While Congress has not come forward with a specific definition of human rights, the legislation it has enacted relies on language that is frequently used in United Nations resolutions:

Consistent pattern of gross violations of internationally recocnized human rights, including torture or cruel, inhuman, or degrading treatment or punishment, prolonged detention without charges, or other flagrant denial of the right to life, liberty, and the security of person . . . Sec. 310 of the International Development and Food Assistance Act of 1975 (P.L. 94-161).

The International Security Assistance and Arms Control Act of 1976 also relies on criteria and standards that have been established by the international community. This act also declares that it is the policy of the United States .

to promote and encourage increased respect for human rights and fundamental freedoms for all . . . To this end, a principal goal of the foreign policy of the United States is to promote the increased observance of internationally recognized human rights by all countries.

Relations between the United States and numerous other nations have been directly affected by the incorporation of international standards of human rights into our foreign policy. For example, in February of 1977, Secretary of State Vance announced that the Carter Administration had decided to reduce the Security Assistant Program budget for Argentina for FY 1978 from the $32 million recommended by the Ford Administration to $15.7 million, explicitly linking the decision to violations of human rights by the Argentine regime. The military junta responded by announcing that it considered this action an interference in Argentina's internal affairs, and rejected the $15 million left in the Security Assistance Program for FY 1978. Human Rights Conditions for Selected Countries and the U. S. Responses, Prepared for the Subcommittee on International Organizations of the Committee on International Relations, U. S. House of Representatives, by the Foreign Affairs and Mational Defense Division, Congressional Research Service, Library of Congress, 95th Congress. 2d Session, July 25, 1978.

Relations between the United States and a host of other nations, including Brazil, Chile, the Soviet Union, Rhodesia (Zimbabwe), South Africa and the Philippines have also been affected by what has become a "standard rule and custom" in both U. S. foreign policy and the international comm.unity: respect for theright of the person, which includes the right to freedom from torture; from arbitrary arrest and imprisonment. and from invasion of the home. Id All of these rights were, according to the complaint, violated by defendant Pena-Irala.

Indeed, as this case proceeds, plaintiffs are confident that the developing record will show that the murder of Joelito Filartiga and its conseauences have directly and seriously affected relations between Paraguay and the United States and are continuing to do so.

For confirmation of the proposition that torture, which is the central tort alleged by plaintiffs, is a violation of the law of nations, they respectfully refer this Court to the respective affidavits of Professors Richard Anderson Falk, Thomas M. Franck, Richard L. Lillich and Llyres S. MacDougal, all emminent authorities in the field of international law. See also Note, "Torture Under the European Convention on Human Rights," 73 American Journal of International Law 267; Special Issue, "The Prevention and Suppression of Torture," 1977 Revue Internationale de Droit Penal, nos. 3 and 4; and John G. Humphrey, "The International Law of Human Rights in the Middle Twentieth Century," in "The Present State of International Law and Other Essays Written in Honor of the Centenary Celebration of The International Law Association," Kluwer, The Netherlands, 1973.

IF THIS COURT WERE TO DECLINE JURISDICTION UNDER THE DOCTRINE OF FORUM NON CONVENIENS, IT WOULD LEAVE PLAINTIFFS WITHOUT ANY REMEDY WHATSOEVER

Defendant's assertion that this Court should decline jurisdiction pursuant to the doctrine of forum non conveniens is without merit. The Supreme Court has described the doctrine

'...the dismissal of a case because the forum chosen by the plaintiff is so completely inappropriate and inconvenient that it is better to stop the litigation in the place where it is brought and let it start all over again somewhere else...'

Norwood v. Kirkpatrick 349 U.S. 29, 31 (1955) quoting All States Freight v. Modarelli 196 F.2 at 1011 (3rd Cir.1952) (emphasis added). Its application should be limited to those "rare cases" in which a plaintiff misuses general venue statutes, succun~ing to the "temptation to resort to a strategy of forcing the trial at a most inconvenient place for an adversary, even at some inconvenience to himself. Gulf Oil Corporation v. Gilbert 330 U.S. 501, 507, 509 (1947). It would be completely inappropriate for this court to decline jurisdiction on the ground of forum non conveniens when plaintiffs have moved forward in this Court because it alone offers the opportunity of a fair and just hearing of the merits of their complaint.

There is no precise formula for the Court to determine whether to grant or deny dismissal under forum non conveniens.

While issues of convenience, such as ease of access to sources of proof are relevant, "the more important question is whether the relinquishment of jurisdiction would best serve the ends of justice". Mobil Tankers Co. v. Mene Grande Oil Company, 363 F.2d 611 (3rd Cir. 1966). In that case the Court of Appeals reversed a District Court's dismissal on the ground of forum non conveniens, despite the fact that the balance of convenience favored the defendant, because the alternative forum, a Venezuelan court, followed more restrictive rules pertaining to discovery and presentation of expert testimony than would be available in United States Courts. The Court noted that the relinquishment of jurisdiction could result in serious detriment to (plaintiffs') causes of action. It would relegate the (plaintiffs) to a foreign forum in which the procedural remedies are far less conducive to the fair administration of justice than those available under our admiralty rules. The mode of trial, the lack of adequate pre-trial procedures, and the limitation on the manner in which expert testimony may be offered do not comport with our concepts of fairness.

363 F.2d. at 614. Plaintiffs will suffer similar detriment if they are forced to pursue their action under the procedures- available under Paraguayan law. See Affidavit of Jose Antonio Lugo. iloreover, the consequences of the Filartiga's prior attemtp to initiate proceedings against the defendant in Paraquay -- the arrest of plaintiff Dolly Filartiga and her mother; the arrest, beating and disbarment ot their attorney; and the continuing death threats against the plaintiffs -- make it evident that relinquishment of jurisdiction by this court would be an egregious act of injustice.

The political realities facing plaintiffs in foreign countries have been recognized by other courts in similar circumstances.

In Flota Maritima Browning v. The Ciudad de La Habana, 181 F.Supp. (D.Md. 1960) the court was asked to renounce its jurisdiction over suits in admiralty between Cuban corporations, based on contracts executed in Cuba and Canada pertaining to ships which were or had become part of the Cuban Merchant Marine and containing clauses assenting to the jurisdiction of the Havana courts and waiving all other jurisdictions. Recognizing that "these facts would ordinarily weigh heavily in favor of this court's refusing jurisdiction", the Court retained jurisdiction because it questioned the capacity of the Cuban courts to deal with the matter fairly. The Court observed that the situation in Cuba today, however, is very far from ordinary; it is very doubt'ul whether Libelant (sic) can hope to receive justice in Cuba. This is the dominant factor to be considered in every case when such doubt exists. At 311(emphasis added).

The most closely analogous recent case is Phoenix Canada Oil Co. Ltd. v. Texaco, Inc. 78 F.R.D.445 (D.Del.1978).

In that case, a Canadian corporation sued a number of international oil companies and their Ecuadorean subsidiaries for alleged tortious conduct involving oil exploration in Ecuador. In discussing defendants' forum non conveniens motion to dismiss, the court quoted as follows from Mobil Tankers, Supra, at 614:

"(T)he relinquishment of jurisdiction could result in serious detriment to (plaintiffs') causes of action. It would relegate the libellants to a foreign forum (Venezuela) in which the procedural remedies are far less conducive to the fair administration of justice than those available under our admiralty rules. The mode of trial, the lack of adequate pre-trial procedures, and the limitation on the manner in which expert testimony may be offered do not comport with our concects of fairness" and went on to state the law of forum non conveniens as follows:

"(N)ot only must an alternate forum exist, and not only must that forum provide relief for the actions alleged to violate United States law, but the alternate forum must also provide comparable procedural protections to those in the United States."

Applying this principle to the facts of the case, the court rejected the forum non conveniens motion both because of a number of procedural weaknesses inherent in the Ecuadorean procedure which would be applicable to the case at bar and because

Plaintiff has represented by affidavit that Ecuador is presently controlled by a military government which has "assumed the power of the executive and legislative branches and rules by fiat," "has specifically retained the right to veto or intervene in any judicial matter which the Military Government deems to involve matters of national concern," and "has absolute power over all branches of government." .At 455

That the above quoted language could be used, almost word for word, to describe the lack of independence of the judiciary in Paraguay will appear from the following excerpts from Exhibit I to the affidavit of plaintiff Dolly Filartiga s attached to to plaintiffs' Order To Show Cause And To Stay Deportation (Exhibit I being the report on an inquiry into human rights in Paraguav, conducted in September 1976 by Dr. Deputy Assistant Ben Stephansky, former/Secretary of State for Latin America, and Professor Robert Alexander of Rutgers University, on behal~ of the Internatior.al League for Human Rights):

One of the principal instruments of the Stroessner dictatorship has been the perpetual State of Siege . . . (U)nder Stroessner, the State of Siege has been a permanent feature of the regime, not an emeraency one.

(T)he state of siege permits the regime to hold people under arrest "at the pleasure of the President" for an indefinite neriod of time.

The factis that the rule of law does not exist in Paracuay. There is no independence of the judiciary. All judges must be members of the Colorado party. and are appointed by the Executive.

A year after the above report was written, Dr. Stephansky, together with Professor David Helfeld, former Dean of the School of Law, University of Puerto Rico, made another trip to Paraguay on behalf of the International League for Human Rights. Their report on this second mission, one of the principal purposes of which was to evaluate the legal system of Paraguay, has been submitted as an exhibit in response to defendant Pena's Motion to Dismiss. The Court's attention is respectfully directed to the sections entitled "Independence of the Judiciary" beginning on p. 29, and "Human Rights and the Legal Profession" beginning at p. 33, as well as to the following statement appearing on p. 35:

(N)either is a single case known of any governmental official who has been held responsible for Constitutional violations or in which the State has voluntarily indemnified persons or their families for deprivation of Constitutional rights.

In the light of these authoritative findings as to complete subservience of the Paraguayan judiciary to the military dictatorship ruling the country, and the highly political nature of this case, defendant's statements, at p. 23, that plaintiffs' "right to pursue their remedy for wrongful death exists in Paraguay" and "has been in no way infringed by Paracuayan courts," can only be described as an excursion into the wild blue yonder of free-wheeling fantasy. As to the alleged "confession" of Hugo Duarte-which leaves the torture wounds totally unexplained--and his immunity to compulsory process, this should present no problem at all. Compulsory process is not the only way to obtain testimony from a witness residing in a foreign country, and all indications are that Mr. Duarte is most anxious to assist his stepfather-in-law, Mr. Pena, in this matter. In sum, if the allegedly more convenient forum were Canada Japan or England, as in the Vanity Fair and Fitzgerald cases cited by defendant at pp. 23-25, plaintiffs would not be in this Court today. Had they lived in any of these countries, their son and brother would not have died as he did, and they would have no reason to seek the aid of the courts of this country for the redress of any wrongs which they might have suffered in their own.

CONCLUSION

For the foregoing reasons, plaintiffs respectfully urge this Court to deny defendant Pena-Irala's Motion to dismiss the complaint and vacate the stay.

Dated: New York, New York

May 11, 1979

Respectfully submitted,

PETER WEISS RHONDA COPELON JOHN W. CORWIN JOSE ANTONIO LUGO c/o Center for Constitutional Rights 853 Broadway New York, New York 10003

MICHAEL MAGGIO GOREN AND MAGGIO 1801 Columbia Rd. N.W. Suite 100 Washington, D. C.

Attorneys for Plaintiffs