Translating Filartiga: A Comparative and International Law Analysis of Domestic Remedies For International Human Rights Violations

Abstract

The search for means to hold accountable those responsible for egregious human rights abuses has assumed central importance for policymakers as well as activists, politicians as well as scholars. In the absence of effective international enforcement mechanisms, domestic courts have played an important role in the effort to enforce international human rights norms. While most nations focus on criminal prosecutions, the United States has developed an elaborate doctrine of civil liability for violations of international law, through private lawsuits against individuals, corporations and States, known as the Filartiga doctrine. These two approaches have developed in virtual isolation,a result of a failure to understand their fundamental similarities. Both civil and criminal actions represent the translation into domestic legal systems of the international law principle of accountability for human rights violations. Differences in local procedures, as well as markedly different cultural responses to the purposes served by civil litigation, lead to wide variations in the implementation of accountability principles within domestic legal systems. But all respond to the international mandates to hold responsible perpetrators of human rights abuses, provide remedies for victims of those violations, and deter future abuses. An understanding of the common international law foundation underlying civil remedies in the United States and criminal human rights prosecutions abroad enables us to recognize that the assertion of jurisdiction over such actions is authorized by the international law principle of universal jurisdiction. The history and underlying logic of the doctrine demonstrate that it permits accountability through civil remedies as well as criminal prosecutions. As international negotiators press forward to draft an international convention governing civil jurisdiction and enforcement of judgments, it is crucial to the future of accountability that any resulting agreement recognize this principle.