ETLJB 15 January 2009 SYDNEY - With the failure of the Indonesian ad hoc human rights courts to properly prosecute persons accused of committing human rights abuses and crimes against humanity in East Timor in 1999 and the reluctance of the international community to prosecute those crimes and abuses in an international criminal tribunal, it may yet be possible for survivors of atrocities in East Timor to bring actions against suspects in the courts of the United States pursuant to the Alien Tort Statute and the Torture Victim Protection Act.
The Alien Tort Statute (ATS), adopted in 1789, gives survivors of egregious human rights abuses, wherever committed, the right to sue persons responsible for the abuses in U.S. federal court. Since 1980, the law has been used successfully in cases involving torture (including rape), extrajudicial killing, crimes against humanity, war crimes, and arbitrary detention.
The Torture Victim Protection Act (TVPA), passed in 1991 and signed into law by President Bush in 1992, gives similar rights to U.S. citizens and non-citizens alike to bring claims for torture and extrajudicial killing committed in foreign countries. The perpetrator generally must be served with the lawsuit while they are present in the United States in order for the court to have jurisdiction.
The first case brought under the ATS for human rights abuses was Filartiga v. Pena-Irala. In 1976, the father of a young man who had been tortured and killed in Paraguay while in police custody saw the police inspector involved in his son's torture and killing walking the streets of Manhattan. The father called the INS, and the INS arrested the police inspector for overstaying his visitor's visa. The father and sister brought a claim against the inspector, and in 1980, the U.S. court in New York upheld their claims, opening the way for other claims using the Alien Tort Statute to be brought.
Recently, The 4th Circuit recently issued an important ruling in an Alien Tort Statute case involving a Somalian defendant brought by the Center for Justice & Accountability.
In Yousef v. Samantar, the plaintiffs sued Mohamed Ali Samantar (found living in Virginia) for alleged acts of torture and other human rights violations committed against them by government agents commanded by Samantar during the brutal regime of Mohamed Siad Barre.
The district court concluded that Samantar should enjoy immunity under the Foreign Sovereign Immunities Act, and dismissed the action for lack of subject matter jurisdiction. The 4th Circuit, bucking a contrary jurisprudential trend, recently concluded that the FSIA does not apply to individuals and reinstated the case.
A rule of limitation of 10 years applies under the Torture Victim Protection Act so time is fast running out for the 1999 East Timor cases.
Read the full texts of the Alien Tort Statute and the Torture Victim Protection Act