Fulfilling the Promise of Filartiga: Litigating Human Rights Claims Against the Estate of Ferdinand Marcos

Abstract

In a recent confirmation that private liability may be imposed for public wrongs, an American jury held the estate of Ferdinand Marcos liable for human rights violations that occurred in the Philippines during the Marcos presidency. After six years of pre-trial maneuvering, multiple appeals to the Ninth Circuit, and two weeks of trial, the estate was found specifically liable to a class of ten thousand Filipinos and twenty-three named plaintiffs for torture, summary execution, disappearance, and prolonged arbitrary detention. In February 1994 the jury awarded $1.2 billion in exemplary damages. The Marcos verdict is the latest in a series of U.S. decisions holding former officials of foreign regimes liable for human rights violations committed abroad. Since 1980, when the Second Circuit rendered its decision in Filartiga v. Pefta-Irala, U.S. courts have increasingly awarded judgments against foreign policemen or military officers sued after their arrival in the United States. Human rights practitioners argue that these cases do not represent some aberration in American civil procedure, but rather conform entirely with U.S. statutory law, the ancient doctrine of transitory torts, and the traditional role of international law in domestic litigation. At the least, the Marcos cases demonstrate that the Nuremburg principles of criminal responsibility have left a civil legacy.