FILARTIGA V. PENA-IRALA, COURT OF APPEALS, SECOND CIRCUIT, 30 JUNE 1980
OVERVIEW: On April 6, 1979, the suit was brought by an alien residing in the United States charging a former official of Paraguay then isiting the United States! "he complaint alleged torture of the plaintiff#s brother leading to his death! "he court of appeals ruled that deliberate torture perpetrated by a person inested with official authority was a iolation of customary law supporting the $urisdiction of the district courts oer %a ciil action by an alien for a tort only, committed in iolation of the law of nations!% "he court further declared that %indeed, for purposes of ciil liability, liability, the torturer has become li&e the pirate and slae trader before him hostis humani generis, generis, an enemy of all man&ind%! "he court found that torture perpetrated by a person inested with official authority iolates uniersally uniersally accepted human rights norms, regardless of the nationality of the parties! !
FACTS OF THE CASE: "he 'ilartiga are citi(ens of the )epublc of Paraguay! "hey alleged that their 17year old son *oelito was &idnapped and tortured to death b y +orberto Pena-rala in Paraguay! 'il.rtiga claims this was done in retaliation for his father#s political actiities and beliefs! 'il.rtiga brought a criminal case in Paraguayan court, but his attorney was arrested , threatened with death, and supposedly disbarred without $ust cause! 'our years later, another man confessed to the murder, claiming he found *oelito and his wife together, and said the crime was one of passion, but he was neer conicted, and also the eidence showed that *oelito#s death %was the result of professional methods of torture!% -n 197/, 0olly 'il.rtiga came to the US and applied for political asylum! hile Pe2a also entered the United States under a isitor3s isa but remained in the US beyond the term of their isas! 0olly learned of Pena and reported it to the -mmigration and +aturali(ation +aturali(ation Serice, Pe2a then was arrested for staying past the e4piration of his isa! hen Pe2a was ta&en to the 5roo&lyn +ay ard pending deportation, 0olly lodged a ciil complaint in U!S! courts for *oelito#s wrongful death by torture! "he 'ilartiga argued that Pe2a#s actions had iolated wrongful death statutes, the United +ations harter, the harter, the Uniersal 0eclaration of 8uman )ights, )ights , the American the American 0eclaration 0eclaration of the )ights and 0uties 0uties of an, and an, and other customary international law! Pe2a claimed the U!S! courts had $urisdiction to hear the case under the Alien "ort "ort Statute Statute,, which grants district courts original $urisdiction to hear tort claims brought by an alien that hae been %committed in iolation of the law of nations or a treaty of the United States%! Although the district court initially stayed Pe2a3s deportation, it ultimately granted Pe2a3s motion to dismiss the complaint and allowed his return to Paraguay, ruling that, although the proscription of tortur torture e had become become “a norm of customary international law,” the the court was bound to follow appellate precedents which narrowly limited the function of international law only to relations between states!
ISSUES: •
•
hether act of torture is part of international concern, thus, under the customary international law: hether a iolation of the law of nations arises only when there has been ; a iolation by one or more indiiduals of those standards, rules or customs if
or in dealing per se?
THE RULING OF THE COURT: Fir! I"#
"he ourt ruled that in light of the uniersal condemnation of torture in numerous international agreements, the renunciation of torture as an instrument of official policy by irtually all of the nations of the world
"he ourt emphasi(ed the ruling in The Paquete 8abana which reaffirmed that where there is no treaty, and no controlling e4ecutie or legislatie act or $udicial decision, resort must be had to the customs and usages of ciili(ed nations@ and as eidenced of these, to the wor&s of $urists and commentators, who by years of labor, research and e4perienced, hae made themseles peculiarly well acuainted with the sub$ects of which they treat! Such wor&s are resorted to by $udicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy eidence of what the law really is!
"he ourt ruled that although there is no uniersal agreement as to the precise e4tent of the human rights and fundamental freedoms guaranteed to all by the charter, there is at present no dissent from the iew that the guaranties include, at a bare minimum, the right to be free from torture! "his prohibition has become part of customary international law, as eidenced and defined by the Uniersal 0eclaration of 8uman )ights!
Bi&ewise, the ourt haing e4amined the sources from which customary international law is deried the usage of nations, $udicial opinion and the wor&s of $urists, the ourt concluded that official torture is now prohibited by the law of nations! "he prohibition is clear and unambiguous, and admits of no distinction between treatment of aliens and citi(ens!
S#$%&' I"#
"he ourt stated ;the sphere of domestic $urisdiction is not an irreducible sphere of rights which are somehow inherent, natural, or fundamental! -t does not create an impenetrable barrier to the deelopment of international law! atters of domestic $urisdiction are not those which are unregulated by international law, but those which are left by international law for regulation by States! "here are, therefore, no matters which are domestic by their ;nature?! All are susceptible of international regulation and may become the sub$ects of new rules of customary law of treaty obligations!?
