Taking Pride in International Human Rights Litigation

Over the past 20 years, several dozen international human rights cases have been filed in US courts. Many have been dismissed; many are still pending. A small number have resulted in judgments against defendants accused of violations ranging from genocide and war crimes to torture and disappearances. While few money judgments have yet been collected, successful plaintiffs have expressed great satisfaction in the sense of justice and vindication they have obtained from participation in these lawsuits. What does Curtis Bradley find objectionable about this litigation?1 He asserts that this is a dangerous line of cases, expanding rapidly, without proper authorization from Congress. He views human rights claims litigation as a perversion of the proper role of our legal system and a threat to US foreign policy. Bradley lays blame for this serious misstep on almost all of the various actors involved in human rights litigation, challenging their motives and alleging improper manipulation of the system. I will argue that the litigation is neither dangerous, nor expanding rapidly-and that it has, in fact, been tacitly endorsed by a modern Congress. Indeed, most of these complaints have been raised for the past twenty years. Practice has shown them to be overblown, if not groundless. I. ROLE PLAYERS ON THE HUMAN RIGHTS STAGE A review of the actors involved in human rights litigation shows that all are playing their accustomed role in the US legal system, neither abusing their access to that system, nor neglecting their responsibilities to the overall pursuit of justice. The Plaintiffs: Human rights litigation, of course, begins with human rights abuses, or, more accurately, with the victims and survivors of such abuses. A woman escapes torture in Ethiopia only to find herself working at the same hotel in Atlanta as the man who tortured her.2 Burmese refugees are thrown out of their villages, tortured and enslaved by military officers working in tandem with a US oil corporation.3 Survivors of genocide in the mountains of Guatemala discover the general who directed the military campaign against them studying in the United States.4 In a more perfect world, none of these human rights victims would have chosen to file civil lawsuits in the United States. But the combined efforts of international and domestic legal systems offer very little in the way of enforcement or compensation to them or others like them around the world. More importantly, civil litigation in their home countries and criminal prosecution of those responsible are both clearly impossible. Faced with no other options, each has chosen to file a civil claim in US federal court. Moreover, each has had an additional reason to choose a US forum: the defendant was present here. While this is not true of all such litigation, the majority of lawsuits have involved US-based defendants. Of all of the players involved in human rights litigation, Bradley only refrains from criticizing the plaintiffs. He recognizes their limited options, and sympathizes with the choice they have made in the face of those limitations. This is an important concession: once the victims have chosen to become plaintiffs, the rest of the actors fall into their accustomed roles in our legal system. Plaints' Attorneys: Victims of human rights abuses, human rights organizations, and community activists regularly approach human rights litigators and tell horrendous stories of abuse at the hands of repressive governments and abusive individuals and corporations. More often than not, litigation is not an option, for one or more reasons. However, in a small number of cases, the abuse constitutes a violation of international law; the person, government, or corporation responsible for the abuse is subject to the personal jurisdiction of the US courts and is not entitled to immunity; the plaintiff wishes to proceed after a full understanding of the risks and realistic potential of the litigation; and attorneys are available to handle the case. …