- The Washington Times - Monday, March 17, 2003

Oscar Reyes remembers the terrible night 20 years ago as if it were yesterday. On July, 8, 1982, men wearing black ski masks and military fatigues ransacked his home in Honduras before dragging him and his wife, Gloria, away.
Mr. Reyes soon found himself naked, blindfolded, and hoisted into the air from his arms bound behind his back.
"The beat me like I was a pinata," said Mr. Reyes, remembering the fists, sticks and electric shock that eventually caused him to pass out. "I still have pain putting my arms up."
Accused of being leftist sympathizers during the height of the Central American wars of the 1980s, the Reyeses were held for six months before being sent into exile in Vienna, Va.
Now, with the help of a 2-century-old U.S. law drafted to battle pirates on the high seas, Mr. Reyes hopes to face his torturer, Col. Juan Lopez Grijalba, in an American court.
"We want the people who tortured us to be condemned for what they did," Mr. Reyes said in an interview recently. "It is important that someone is held responsible."
His weapon, the Alien Tort Claims Act (ATCA) of 1789, lies at the center of a legal maelstrom, with a broad assortment of activists eyeing it as a weapon to settle scores.
When Nazi victims used it to go after Swiss banks for laundering gold stolen from Jews who were on their way to German gas chambers, the case never made it to court. Instead, the Swiss coughed up billions of dollars in pretrial settlements.
To others, it offers a way to go after leaders and former leaders with blood on their hands from Cuba's Fidel Castro to Chile's Augusto Pinochet.
It is being used to sue corporations such as Coca-Cola and Del Monte by human-rights activists, campesinos in Latin America and torture victims in nations where big corporations do business with the government.
Legal struggle looms
"There is a looming fight. What is at stake is the last 20 years of jurisprudence and the way these statutes can hold human-rights violators accountable," said Elisa Massimino, D.C. director of the Laywers Committee for Human Rights.
Advocates on both sides are marshaling forces, meeting informally, mapping strategy and buttonholing lawmakers on Capitol Hill in hopes of either abolishing, preserving or changing the law.
With the most pro-business White House and Congress in decades, human-rights activists fear that corporate lawyers with plenty of money and clout will succeed in abolishing the law and thereby make the world a safer place for dictators, torturers and assorted human-rights abusers.
Terry Collingsworth, director of the International Labor Rights Fund and lead counsel in half-a-dozen of the most prominent cases, said business is working the issue hard.
"Business wants to be immunized from human-rights liability. There is an accelerated effort to repeal or modify the law. And with the Republicans in charge, they think they have a political 'moment.' … They are actively lobbying on the Hill," Mr. Collingsworth said.
Just days after the Republican victory in November 2000, about 50 corporate lawyers gathered for a closed meeting in Washington to discuss the law.
Stuart Eizenstat, best known for negotiating an $8 billion settlement for Holocaust victims against companies in Germany, Austria and Switzerland, was the principle speaker at the forum sponsored by USA Engage and the National Foreign Trade Council.
"It is on their radar screen," said Mr. Eizenstat, who advocates the creation of a voluntary set of guidelines for conducting business in authoritarian nations. He said many in his audience favored a frontal assault through Congress to change the law, a strategy Mr. Eizenstat advised against. He warned the lawyers to tread softly.
"Any time you open a statute with a strong human-rights component, there is a risk that it will be strengthened … and business will be seen as against human rights," Mr. Eizenstat said.
Violating 'law of nations'
The ATCA of 1789 says: "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 ATCA was originally written to assure Europe that the United States would not provide sanctuary for pirates who kidnapped or accosted diplomats on the open seas.
Its wording "violation of the law of nations" has been interpreted by U.S. federal courts since 1980 in the case of Filartiga v. Pena-Irala to include the violation of human rights.
Joelito Filartiga, the teenage son a prominent leader in the political opposition to Paraguay's military government under Gen. Alfredo Stroessner, was kidnapped and tortured to death in March 1976.
After being confronted with the boy's body and threatened by Americo Noberto Pena-Irala, the inspector general of the Asuncion police, the family left Paraguay and received political asylum in the United States, settling in New York.
In 1979, Joelito's sister Dolly discovered that Pena-Irala had also come to America and was living just around the corner.
Distraught that an admitted torturer and murderer could be comfortable and living freely so close by, Miss Filartiga and her father, Dr. Joel Filartiga, sought help.
They found it when Peter Weiss of the Center for Constitutional Rights (CCR) came upon the ATCA.
CCR lawyers hoped the law might be interpreted today to permit noncitizens of this country to bring a civil claim in the United States against other foreigners if a violation of the modern "law of nations" could be proved.
To have a court interpret the phrase "law of nations" to cover war crimes, crimes against humanity, genocide or torture seemed like a long shot at the time.
Test case reinstated
But after the case was first dismissed, the 2nd U.S. Circuit Court of Appeals in New York sided with the Filartigas and reinstated the suit. The case went forward, and the family eventually won a $10 million judgment against Pena-Irala.
Pena-Irala fled before the trial took place, and Dr. Filartiga has since returned to Paraguay. But human rights activists saw the ruling as a giant step in the evolution of human-rights law and a new weapon against war crimes, crimes against humanity, genocide and torture.
"No money has actually been collected," said Jennifer Green, one of the CCR attorneys who represented Dr. Filartiga and has spent the past 20 years pursuing rights abusers with this law.
"People say things like, 'At least someone believed me.' Their priority is on finding out what happened and holding someone responsible in court," she said.
Ms. Green said the law is used sparingly because it is fraught with restrictions on who, how, where and why the law can be used. It is rare that a case actually makes it to trial or, much less, is won. Only the most egregious abusers can be held accountable under current U.S. law.
But with the Filartiga victory, human-rights activists gained a legal precedent.
"Filartiga was the first time a U.S. court found a human-rights violation to be a part of customary international law, and the first time a human-rights victim was allowed to sue in U.S. courts for a human-rights violation," said Ms. Green.
"If a violator comes here, they bring their wrongs with them, and they can expect to be hauled into court," she added.
The case opened a new avenue for victims seeking to hold human-rights abusers, and more recently companies that do business with repressive regimes, accountable for their acts. Targets of pending lawsuits include Salvadoran military officers, Burmese government officials, Indonesian police and African dictators.
Heads of state 'immune'
Lawsuits have been filed against Cuban President Fidel Castro, Zimbabwe's Robert Mugabe and recently against China's outgoing President Jiang Zemin, for reputed government abuses against the Falun Gong.
But because heads of state have immunity while in office, those suits are routinely dismissed.
The first time Mr. Reyes encountered Col. Grijalba in the United States was at a State Department reception that Mr. Reyes attended as editor of El Pregonero, a Spanish-language Catholic newspaper, based in Hyattsville where he and his wife work today.
But as a military attache with the Honduran Embassy, Col. Grijalba had immunity at the time.
"A case usually starts when someone comes in and says: 'I was the victim of torture in 'X' country and I just saw the guy who did it, working down the street in the 7-Eleven," said Ms. Massimino, whose group is suing two Salvadoran generals now living in Florida over the 1980 rape and murder of four American churchwomen during that country's civil war.
What concerns U.S. corporations is that the ATCA is being used by activists to target companies for doing business with repressive regimes.
More than 100 U.S. businesses are being sued for their investments and business activities in South Africa during apartheid.
And dozens of other U.S. businesses, many in oil, mining or other "extraction" industries, that have done business in nations such as Burma, Nigeria, South Africa, Sudan, Ecuador, Indonesia, Haiti, Guatemala, India, Egypt, Mexico and Saudi Arabia are being sued in U.S. courts for aiding and abetting repressive governments.
Coca-Cola is accused of hiring military thugs in Colombia to terrorize union organizers.
Rodrigo Calderon, spokesman for Coca-Cola in Latin America, said the accusations have been investigated by two Colombian judges and found to be without merit. "The allegations are totally false," said Mr. Calderon, by telephone from Mexico City. "They are a shameless effort to generate publicity using the name of our company."
Federal stance varies
Fresh Del Monte Produce is accused of coordinating with Guatemalan security forces to destroy a union, which victims say led to torture, extrajudicial killing and crimes against humanity. Del Monte declined to comment.
Cuban-American activists are preparing cases against European and Canadian businesses working on the island.
The victims want U.S. and foreign-based companies held accountable in U.S. courts and to pay for human-rights violations committed by governments with which they have worked. Specialists on both sides say as many as 1,000 U.S. businesses could be brought into court.
The State Department is sometimes asked by the court to explain if a particular suit will have an impact on the U.S. government's ability to conduct foreign policy. In responding, the department has written briefs siding with victims, as in the Filartiga case, or with the plantiffs, asking that a case be dismissed.
The State Department sided against Korean "comfort women" forced into prostitution by the Japanese military because the United States had an agreement with Japan at the conclusion of World War II that superseded the victim's suit.
In a case against ExxonMobil, the State Department said in a July 29, 2002, letter that the suit "could potentially disrupt" the fight against terrorism and undermine Indonesia's economic stability, which is a U.S. interest, by scaring off foreign investment.
"The number of cases in which the State Department has intervened and the vociferousness of their arguments is novel. It signals a change," said Joshua Sondheimer, litigation director of the Center for Justice and Accountability in San Francisco, which represents Mr. Reyes.
The State Department said it would be inappropriate to comment on cases currently in litigation.
'Vicarious liability' at issue
Some members of Congress known for their support of human rights have written "friend-of-the-court" briefs to the U.S. Supreme Court in support of human-rights victims when corporate lawyers tried to get cases dismissed.
The ATCA "serves the useful function of discouraging 'rogue' state actors, or unscrupulous and sadistic dictators, from ignoring international treaties and universally accepted norms of international law," wrote Republican Reps. Christopher Smith of New Jersey and Ileana Ros-Lehtinen of Florida in one such court filing in support plaintiffs suing Royal Dutch Petroleum for human-rights abuses in Nigeria.
Big business disagrees.
"The issue is vicarious lability," said Daniel O'Flaherty, vice president of the National Foreign Trade Council, which represents U.S. exporters.
"They say, 'You were there. You paid taxes. You profited from police protection. You are vicariously liable.' We are concerned about the proliferation of lawsuits against U.S. companies for behavior over which they have no control," he said.
Thomas Niles, president of the U.S. Council of International Business, said that a lawsuit against more than 100 U.S. companies who did business in South Africa during apartheid undermines the good that business can do in authoritarian regimes.
"The U.S. government encouraged U.S. companies to do business with South Africa. It was called 'constructive engagement.' It was to fight apartheid from within," said Mr. Niles. "The companies being sued are companies that adhered to the Sullivan Principles. It is grossly unfair. They were there. They were encouraged by the U.S. government to remain. Does that 'aid and abet'? They were undermining apartheid as part of this country's policy."
Mr. O'Flaherty said business does not condone human rights abuses and, in fact, he said, U.S. business works overtime to mitigate rights repression abroad. But, he said there is a new breed of lawyers, unconcerned about the rights of victims and more interested in gouging giant settlements out of U.S. companies with deep pockets.
"China is where this whole thing is headed," he said. "Imagine trying to hold all the companies doing business in China liable for the human-rights abuses of the PRC. There is gold in them thar' hills."

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