Article by William T. D'Zurilla
On March 29, 1976, Americo Norberto Pena-Irala (Pena), then Inspector General of Police in Asuncion, Paraguay, allegedly tortured and killed Joelito Filartiga. In 1978, Pena came to the United States on a visitor's visa. After discovering that Pena was living in Brooklyn, New York, Filartiga's father and sister commenced a wrongful death action against him in federal district court. The Filartigas invoked federal jurisdiction under 28 U.S.C. § 1350, which provides: "The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." The district court, finding that "the law of nations" does not govern a state's treatment of its own citizens, dismissed the complaint on jurisdictional grounds. In Filartiga v. Pena-Irala, the Second Circuit Court of Appeals reversed and held that Pena's alleged conduct contravened international law.
With respect to the international law issues, the Second Circuit's opinion, written by Judge Kaufman, is devoted exclusively to the question whether the use of torture is a violation of the law of nations. The court answered this question in the affirmative and held for the plaintiffs. In addition, however, there are two other crucial questions that the court should have addressed before reaching its conclusion: 1) Can an individual ever commit a violation of international law? Or are sovereign states the only entities subject to rights and obligations under this law? 2) If an individual is subject to international law in some instances, is this such an instance? In other words, is there individual liability for the use of torture under international law? If either of these questions must be answered in the negative, then the defendant's act was not "committed in violation of the law of nations" and the court's conclusion to the contrary is erroneous. This article will consider both of these difficult questions. After the conclusion is drawn that at present individuals are not subject to the international legal norm prohibiting torture, an alternative analysis that might sustain the result in Filartiga is suggested.
About the Author
William T. D'Zurilla. B.A. 1978, University of Southwestern Louisiana; J.D. 1981, Tulane University. Law Clerk for Judge Albert Tate, Jr., of the United States Court of Appeals for the Fifth Circuit.
Citation
56 Tul. L. Rev. 186 (1981)