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Civil Remedies for Gross Human Rights Violations
By Michael Ratner
Introduction
Over the last few years, many in the human rights community have focused on criminal remedies for punishing individual human rights abusers. U.N.-sponsored criminal courts are trying those who committed abuses in Rwanda and Bosnia, and the International Criminal Court (ICC) will soon be a reality. National courts, such as those of Spain and Belgium, are beginning to employ the concept of universal jurisdiction and the Convention Against Torture to bring perpetrators of human rights violations to justice. These are all very important developments, but even once there is an ICC, there will be a need for additional international remedies. Only a few of the worst abusers will be tried by the ICC or by national courts, and enforcement mechanisms for international law are likely to remain weak.
Criminal cases on both the national and international level require the cooperation of officials. While some such cases can be initiated by individuals, they cannot be fully prosecuted without prosecutors and/or investigating judges. All too frequently, political or other concerns prevent any prosecutions from going forward. The vast majority of violators will not be brought to justice; nor will their victims be compensated for their injuries.
For these reasons, civil remedies have an important role to play as a means of enforcing human rights norms. Courts in the United States have pioneered the use of civil remedies to sue human rights violators. Litigation under the Alien Tort Claims Act (ATCA or sec. 1350) and the Torture Victim Protection Act (TVPA) have resulted in billions of dollars in judgments, and have had an important impact on plaintiffs and human rights both in the United States and internationally. Such cases do not require official approval; they can be brought by individuals who have control over the lawsuits and thus are less subject to political vagaries.
Civil remedies include damage awards for injuries and punitive damages meant to deter future abusive conduct as well as send a message to others that such conduct is unacceptable. In addition to any money that can be collected, these cases are important to the victims and their families. Plaintiffs are allowed to tell their stories to a court, can often confront their abusers, and create an official record of their persecutions. This in turn could lead to a criminal prosecution. Filing these civil suits can empower the victims and give them a means of fighting back. It can also help them heal. One person who was in a center for torture victims described the importance to his psychological health of the filing of a civil suit against his torturer. Civil suits can also have consequences for the defendant aside from a monetary judgment. Hector Gramajo, a Guatemalan general, was barred from the United States after a court found him responsible for summarily executing and torturing Guatemalan Indians. The lawsuit may have also dashed his hopes of running for president of Guatemala. He has nowhere to hide.
An important aspect of civil suits is the annunciation of legal norms: courts declaring that torture and other abuses are violations of international law. These decisions have an effect internationally: a number of the Law Lords in the Pinochet decisions relied on ATCA and TVPA precedents.
The success of these civil suits is a remarkable chapter in American law. They have opened great future possibilities for the enforcement of international law and the bringing to justice of human rights abusers. To date, however, no other country appears to have adopted these civil remedies as a means of suing rights violators. Hopefully, the success of these cases in the United States will encourage others, and civil remedies against abusers will become commonplace.
About the Author
Michael Ratner is an attorney who works with, and is the vice-president of, the Center for Constitutional Rights. He is currently the Skelly Wright Fellow at Yale Law School, and a lecturer in law at Columbia law school. While he has worked at the Center for Constitutional Rights most of his 27 years of practice his other positions have included: Special Counsel to President Aristide to assist in the prosecution of human rights crimes (1995-1996); Instructor, Yale Law School, International Human Rights Law Clinic (1990-1994); Legal Director, Center for Constitutional Rights (1984-1990); President, National Lawyers Guild (1982-1983); Instructor, N.Y.U. Law School, Federal Civil Rights Litigation (1973-1974); Clerk, U.S. District Court, Judge Constance Baker Motley (1970-1971). He graduated from Columbia Law School in 1970, Kent Scholar, Magna Cum Laude.
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Torture Victims
Protection Act
Civil trials have an important role to play as a means of enforcing human rights norms. Such cases do not require official approval. They can be brought by individuals who have control over the lawsuits and thus are less subject to political vagaries. | |
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Command Responsibility 
Military commanders are responsible for the acts of their subordinates. If subordinates commit violations of the laws of war and their commanders fail to prevent or punish these crimes, then the commanders also can be held responsible. | |
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