Alerte Belance v. Front Pour L'Avancement - Plaintiff's Memorandum of Law
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
ALERTE BELANCE, )
)
Plaintiff, ) Civ. No. 94-2619
) (Judge Nickerson,
v. ) Magistrate Judge Go)
)
)
FRONT POUR L'AVANCEMENT ET )
LE PROGRES HAITIEN (FRAPH), )
an unincorporated association, )
)
Defendant. )
________________________________ )
PLAINTIFF'S MEMORANDUM OF LAW
IN SUPPORT OF MOTION FOR DEFAULT JUDGMENT
HAROLD HONGJU KOH BETH STEPHENS
RONALD SLYE MICHAEL RATNER [MR-335.7]
LOWENSTEIN INTERNATIONAL JENNIFER M. GREEN []G-3169]
HUMAN RIGHTS CLINIC MAHLON PERKINS
127 Wall Street MATTHEW CHACHERE [MC-2653]
New Haven, CT 06520 MARY BORESZ PIKE [MP-5703]
CENTER FOR CONSTITUTIONAL
RIGHTS
On the brief: 666 Broadway, 7th floor
Paige Chabora New York, NY 10012
Urs Cipolat
Adam Farlow
Alexander Kayne IRA KURZBAN
Daniyel Mueenuddin KURZBAN, KURZ BAN & WEINGER
Ariadne Staples 2650 S.W.27th Ave.,2nd floor
Tammy Sun Miami, FL 33133
Robert Tsai
--Lowenstein Clinic 1995
Swati Agrawal
Laura Dickinson Of Counsel:
Steven Parker PAUL HOFFMAN
Jon Wool LAW OFFICES OF PAUL HOFFMAN
Kenji Yoshino 100 Wilshire Blvd., #1000
--Lowenstein Clinic 1994 Santa Monica, CA 90401
Attorneys for Plaintiff TABLE OF CONTENTS
TABLE OF AUTHORITIES iii
INTRODUCTION 1
STATEMENT OF FACTS 3
A. Haiti: Background 3
B. Systematic Human Rights Abuses
Under the Military Regime 4
C. The Defendant: FRAPH 6
1. FRAPH Acted Under Color of Law 7
2. FRAPH was Responsible for Egregious
International Human Rights Violations 9
3. FRAPH was Present and Doing Business in the
Eastern District of New York in June 1994 11
D. Alerte Belance 12
1. Plaintiff's Ordeal 12
2. Plaintiff's Damages 16
E. The Judiciary System in Haiti 17
F. Conclusion 19
ARGUMENT 21
I. THIS COURT HAS JURISDICTION OVER PLAINTIFF'S
CLAIMS OF TORTURE, CRUEL, INHUMAN OR DEGRADING
TREATMENT, AND ARBITRARY DETENTION UNDER
THE ALIEN TORT CLAIMS ACT AND 28 U.S.C. 1331,
AND SUPPLEMENTAL JURISDICTION OVER PLAINTIFF'S
MUNICIPAL TORT CLAIMS 21
A. The Alien Tort Claims Act Provides Jurisdiction Over the Plaintiff's Claims21
1. The Violations Alleged by Plaintiff
Constitute Torts in Violation of the Law of
Nations 23
a. The Filartiga Standard and the Cause of
Action for Torture 23
I b. Cruel, Inhuman and Degrading Treatment 26
c. Arbitrary Detention 28
2. Defendant FRAPH Acted Under Color of Law and
Can Be Held Liable for Its Violations of
International Law 30
a. Acts Performed Under Color of Law of a
De Facto Regime Meet the State Action
Requirement of International Law 31
b. As a Nominally Private Party Acting in
Concert with the Military Regime, De-fendant FRAPH Acted Under Color of
Law33
B. 28 U.S.C. 1331 Provides Jurisdiction Over
Plaintiff's International Law Claims 40
C. This Court Has Supplemental Jurisdiction Over
Plaintiff's Municipal Law Claims 43
II. THIS CASE RAISES NO ISSUE OF FORUM NON CONVENIENS 43
III. PLAINTIFF IS ENTITLED TO COMPENSATORY AND PUNITIVE
DAMAGES FOR TORTURE, CRUEL, INHUMAN OR DEGRADING
TREATMENT AND ARBITRARY DETENTION 45
A. International Law and Federal Common Law
Govern the Damages Award 45
B. Plaintiff Is Entitled to Full Compensation
for All Injuries Proximately Caused by Defendant's Acts 48
C. Plaintiff Is Entitled to Punitive Damages 50
CONCLUSION 53
ii
TABLE OF AUTHORITIES
CASES
Abebe-Jiri v. Negewo, No. 90-2010 (N.D. Ga. Aug. 20, 1993),
appeal argued, No. 93-9133 (11th Cir. Jan. 10, 1995) . . passim
Adickes v. Kress & Co., 398 U.S. 144 (1969) . . . . . . 34, 39
Amerada Hess Shipping Corp. v. Argentine Republic, 830 F.2d
421 (2d Cir. 1987), rev'd 488 U.S. 428 (1989) . . . . . 21, 30
Aquinda v. Texaco, 93 Civ. 7527, 1994 U.S. Dist. LEXIS 4718
(S.D.N.Y. April 11, 1994) 23
Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964) 41
Bass v. Wallenstein, 769 F.2d 1173 (7th Cir. 1985) . . . . 51
Berhanu v. Metzger, 119 Ore. App. 175, 850 P.2d 373 (1993),
cert denied, 114 S. Ct. 2100 (1993) . . . . . . . . . 22
Booker v. City of Atlanta, 776 F.2d 272 (11th Cir. 1985) 37
Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961) 37
Chan v. City of New York, 803 F. Supp. 710 (S.D.N.Y. 1992),
aff'd 1 F.3d 96 (1993) . . . . . . . . . . . . . . . . . . 38
Chuidian v. Philippine Nat'l Bank, 912 F.2d 1095(9th Cir. 1990)32
Commercial Casualty Ins. Co. v. Consolidated Stone Co.,
278 U.S. 177 (1929) . . . . . . . . . . . . . . . . . . 44
Committee of U.S. Citizens Living in Nicaragua v. Reagan,
859 F.2d 929 (D.C. Cir. 1988) 25
Cooper v. Molko, 512 F. Supp. 563 (N.D. Cal. 1981) . . . . . 40
Dennis v. Sparks, 449 U.S. 24 (1980 . . . . . . . . . . 35
De Sanchez v. Banco Central De Nicaragua, 770 F.2d 1385(5th Cir.
1985) 29
Donald v. United Klans of America, No. 84-725 (S.D. Ala.,
Feb. 12, 1987) . . . . . . . . . . . . . . . . . . 22
Evans v. Newton, 382 U.S. 296 (1966) . . . . . . . . 36
Fernandez v. Diversified Info. Sys.,762 F. Supp. 1544,
aff'd 957 F.2d 44 (1st Cir. 1992). . . . . . . . . . 36
iii Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980) passim
Filartiga v. Pena-Irala, 577 F. Supp. 860 E.D.N.Y.
1984) passim
Forti v. Suarez-Mason, 672 F. Supp. 1531 (N. D. Cal . 1987)
modified by 694 F. Supp. 707 (N.D. Cal 1988) . . passim
Forti v. Suarez-Mason, No. 87-2058 (N.D. Cal. Apr. 25, 1990)
(final judgment) 49, 51
Goldschmidt v. Patchett, 686 F.2d 582 (7th Cir. 1982) . . 35, 39
Graseck v. Mauceri, 582 F.2d 203 (2d Cir. 1978),
cert. denied, 39 U.S. 1129 (1979) . . . . . . . . . . . . 38
Greco v Guss, 775 F.2d 161, 168 (7th Cir. 1985) . . . . . . 37
Hadges v. Yonkers Racing Corp., 918 F.2d 1079 (2d. Cir.
1990), cert. denied, 499 U.S. 960 (1991) . . . . . . . . . . 38
Harris v. City of Roseburg, 664 F.2d 1121 (9th Cir. 1981) . . 37
Henderson v. Fisher, 631 F.2d 1115 (3d Cir. 1980) . . . . . 36
Hilao v. Marcos, 25 F.3d 1467 (9th Cir. 1994),
cert. denied, 115 S Ct 934 (1995) . . . 22, 25
Hoffman v. Blaski, 363 U.S. 335 (1960) . . . . . . . . . . . 43
Hughes v. Benevolent Patrolmen's Assoc., 850 F.2d 876(2d
Cir.1988) 39
Illinois v. Milwaukee, 406 U.S. 91 (1972) . . . . . . . . passim
In re "Agent Orange" Product Liab. Litig., 635 F.2d 987
(2d Cir. 1980), cert. denied, 454 U.S. 1128 (1981) . . . . 41
In re Estate of Marcos Litigation, D. C. No. MDL 840
(D. Haw. Feb. 3, 1995), appeal docketed, No. 95-15779
(9th Cir. May 5, 1995) 25
In re Jackson/Lockdown Cases, 568 F. Supp. 869
(E.D. Mich. 1983) . . . . . . . . 40
Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974) . . . 38
Jatoi v. Hurst-Eutess-Beford Hosp. Auth., 807 F.2d
1214, modified on denial of refuting 819 F.2d 545 (5th Cir.
1987), cert. denied, 108 S. Ct. 709 (1988) . . . . . . 38
Kadic v. Karadzic,___ F.3d ,____ 1995 U.S. App. Lexis
28826 (2d Cir. Oct. 13, 1995). . . . . . . . . . passim
Klinahoffer v. S.N.C. Achille Lauro, 937 F.2d 44
(2d Cir. 1991) . . . . . . . . . . . . . . . . . . . . 22, 31
Lafontant v. Aristide, 844 F. Supp. 128 (E.D.N.Y. 1994) . 33,33
Leahy v. Board of Trustees of Community College District
No. 508, 912 F.2d 917 (7th Cir. 1990) . . . . . . . . 39
Letelier v. Republic of Chile, 488 F. Supp. 665 (D.D.C.
1980) 32
Lugar v. Edmondson Oil, 457 U.S. 922 (1982). . . . . . . . 34
Malak v. Associated Physicians Inc., 784 F.2d 277 (7th Cir.
1986) 39
Martinez-Baca v. Suarez-Mason, No. 87-2057 (N.D. Cal.
Apr. 22, 1988) . . . . . . . . . . . . . . . . . . . . .passim
NCAA v. Tarkanian, 488 U.S. 42 (1988) . . . . . . . . . . . . 35
Neirbo Co. v. Bethlehem Shipbuildina Corp. Ltd.,
308 U.S. 165 (1939) 44
The Nereide, 13 U.S. (9 Cranch) 388 (1815) . . . . . . . 40
Nordlicht v. New York Tel. Co., 799 F.2d 859 (2d Cir. 1986),
cert. denied, 479 U.S. 1055 (1987) . . . . . . . . . . . 41
The Paquete Habana, 175 U.S. 677 (1900) . . . . . . . . . 40, 42
Paul v. Avril, 812 F. Supp. 207 (S.D. Fla. 1993) . . . . . . 22
Paul v. Avril, 901 F. Supp. 330 (S.D. Fla. 1994) . . . . passim
Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981) . . . . . . 44
Pope v. United States, 323 U.S. 1 (1944) . . . . . . . . . . . 2
President & Directors of Georqetown College v. Hughes,
130 F.2d 810, 812 (D.C. Cir. 1942) . . . . . . . . . . . . . 23
Quiros de Rapaport v. Suarez-Mason, No. 87-2266 (N.D. Cal.
Apr. 11, 1989) passim
Republic of the Philippines v. Marcos, 806 F.2d 344
(2d Cir. 1986) . . . . . . . . . . . . . 41
v Rodriquez-Fernandez v. Wilkinson, 654 F.2d 1382
(lOth Cir. 1981) 28
Rojas v. Alexander's Dept. Store, 924 F.2d 406 (2d Cir. 1990) 36
Ropy v. Skupien, 758 F. Supp. 471 (N.D. Ill. 1991) . . . . 36
San Francisco Arts & Athletics. Inc. v. United States Olympic
Comm., 483 U.S. 522 (1987) . . . . . . . . . . . . . 39
Scheetz v. Morning Call, 747 F. Supp. 1515(E.D. Pa. 1990) . 39
Siderman v. Republic of Argentina, 965 F.2d 699(9th Cir. 1992)
cert. denied 113 S. Ct 1812 (1993) . . . 25, 47
Smith v. United States, 723 F. Supp. 1300, aff'd 964 F.2d
630 (7th Cir. 1992), cert. denied, 113 S. Ct. 1015 (1993) . 39
Smith v. Wade, 461 U.S. 30 (1983) . . . . . . . . . . . . 52
Soldal v. County of Cook, 942 F.2d 1073 (7th Cir. 1991) 37
Textile Workers Union v. Lincoln Mills of Alabama, 353 U.S.
448 (1957) 41, 43
Todd v. Panjaitan, No. 92-12255 (D. Mass. Oct. 26, 1994),
1994 WL 827111 passim
Tralano v. Marcos, 978 F.2d 493 (9th Cir. 1992),cert. denied,
113 S. Ct. 2960 (1993) . . . . . . . . . . passim
Traiano v. Marcos, No. 86-0207 (D. Haw. May 19, 1991) . . . . 47
United Food and Commercial Workers Union v. Centermark
Properties Meriden, 30 F.3d 298 (2d Cir. 1994) . . . .. . 2
United States v. Classic, 313 U.S. 299 (1941) . . . . . . . . 35
West v. Atkins, 487 U.S 42 (1988) . . . . . . . . . . . 35, 36
Wyatt v. Cole, 504 U.S. 158 (1992) . . . . . . . . . . . . . 35
Xuncax v. Gramalo, 866 F. Supp. 162 (D. Mass. 1995) . . . passim
STATUTES
28 U.S.C. 1331 40, 41
28 U.S.C. 1350 . . . . . . . . . . . . . . . . . . . . passim
vi 28 U.S.C. 1367 . . . . . . . . . . . . . . . . . . . . . . 43
28 U.S.C. 1603 . . . . . . . . . . . . . . . . . . . . . . 31
42 U.S.C. 1983 passim
INTERNATIONAL DECISIONS AND INSTRUMENTS
African Charter on Human and Peoples' Rights,
adopted June 27, 1981, O.A.U. Doc. CAB/LEG/67/3 Rev.
5, 21 I.L.M. 58 (1982) 26, 28
American Convention on Human Rights, opened for
signature Nov. 22, 1969, O.A.S.T.S. No. 36, at 1,
O.A.S. Doc. OEA/Ser. L/V/II.50, doe. 6 at 27 (1980) . . 26, 28
Case Concerning the Chorzow Factory (Germany v. Poland)
1928 P.C.I.J. (Ser. A), No. 17, at 47 . . . . . . . 49
Convention Against Torture and Other Cruel, Inhuman,
or Degrading Treatment or Punishment, adopted Dec. 10,
1984, G.A. Res. 39/46, 39 U.N. GAOR Supp. (No. 51)
at 197, U.N. Doc. A/39/51 (1984) . . . . . . . . . . passim
Declaration of Tehran, Final Act of the International
Conference on Human Rights, 3, 23, G.A.O.R., U.N. Dock
A/CONF. 32/41 (1968) 26
Declaration on the Protection of All Persons From Being
Subjected to Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, adopted Dec. 9, 1975, G.A. Res.
3452, 30 U.N. GAOR Supp. (No. 34) at 91, U.N. Doc. A/1034
(1975) 26, 50
European Convention for the Protection of Human Rights
and Fundamental Freedoms, art. 3, opened for signature
Nov. 4, 1950, 213 U.N.T.S. 222 . . . . . . . . . . . . . 26, 28
Hostages Case, 1980 I.C.J. 3, at 91 . . . . . . . . 28
I'm Alone Case (Canned v. U.S.), Jan. 5, 1935,
29 A.J. 331 [1935]) . . . . . . . . . . . . . . . . . 51
International Covenant on Civil and Political Rights,
adopted Dec. 16, 1966, G.A. Res. 2200, 21 U.N. GAOR Supp.
(No.16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 717 26, 28
The Universal Declaration of Human Rights, adopted Dec.
10, 1948, G.A. Res. 217A (III), U.N. Doc. A/810, at 71
(1948) 28
vii Velasquez-Rodriguez Case, IACourtHR, Judgment of July 21,
1989, 25, 11 Hum. Rts. L.J. 127 (1989) . . . . . . . . 48
Winterwerp Case, 33 Eur. Ct. H.R., (ser. A), at 39
(1979) . . . . . . . . . . . . . . . . . . . . . . . . . 28
MISCELLANEOUS
Americas Watch/National Coalition for Haitian Refugees,
Haiti: Security compromised (Mar. 1995) . . . . . . . . . . 17
Americas Watch/National Coalition for Haitian Refugees,
Rape in Haiti: A Weapon of Terror (July 1994) . . . . . . . . 6
Americas Watch/National Coalition for Haitian Refugees,
Silencing the People: The Destruction of Civil Society in
Haiti (Feb. 1993) 5
Americas Watch/National Coalition for Haitian Refugees,
Terror Prevails in Haiti: Human Rights Violation and Failed
Diplomacy (Apr. 1994) . . . . . . . . . . . . . . . . . . 6, 8
Amnesty International, Haiti: Amnesty International's Current
Concerns (Nov. 1988) 4
Benesch, Susan, Haitian Death-Probe Panel has Yet to
Begin its Work, N.Y. Times, July 16, 1995, at A28 . . . . . 19
Derian, Human Rights in United States Foreign Policy--The
Executive Perspective, in International Human Rights Law
and Practice 183 (J. Tuttle ed. 1978) . . . . . . . . . . . 28
Fraser, Human Rights and United States Foreign Policy--The
Congressional Perspective, in International Human Rights
Law and Practice 173 (J. Tuttle ed. 1978) . . . . . . . . .
. 28
Garcia-Amador, 2 The Changing Law of International Claims . . 51
Inter-American Commission on Human Rights, Press Release
No. 11/94 (May 20, 1994) 11
Lillich, Richard B., Damages for Gross Violations of
International Human Rights Awarded by U.S. Courts,
15 Hum. Rts. Q. 207 (1993) 45
Maass, Harold, Haitian Commission Seeks the Truth, Dallas Morning
News, Oct. 27, 1995, at 41A . . . . . . . . . . . . . . . . . 19
Oppenheim, International Law (Lauterpacht 8th ed. 1955) . . . 51
viii
-
Organization of American States, Report on the Situation of Human
Rights in Haiti (1993) . . . . . . . . . . . . . passim
Organization of American States, Report on the Situation of Human
Rights in Haiti (1994) . . . . . . . . . . . . . passim
organization of American States, Report on the Situation of Human
Rights in Haiti (1995) . . . . . . . . . . . . . passim
Randall, Kenneth C., Further Inquiries Into the Alien Tort
Statute and a Recommendation, 18 Int'l L. & Poll 473,
501 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . 23
Report on the Human Rights Situation in Haiti, U.N. Doc.
E/CN.4/1992/50 (Jan. 31, 1992) . . . . . . . . . . . . . . . 18
Restatement (Third) of the Foreign Relations Law of the
United States (1987) passim
Schneebaum, Steven M., The Enforceability of Customary
Norms of Public International Law, 8 Brooklyn J. Int'l
L. 289 (1982) 43
Taft-Morales, Maureen, Haiti: The Straggle for Democracy and
Congressional Concerns in 1994, Congressional Research
Service (1994) . . . . . . . . . . . . . . . . . . . . . . . . 4
U.N./O.A.S. International Civilian Mission in Haiti,
Press Release, Ref. CP/94/11 (Mar. 30, 1994) . . . . . . . . 10
13 C. Wright, A. Miller, & B. Cooper, Federal Practice and
Procedure , 3563 at 61-63 (2d ed. 1984) . . . . . . . . . . 41
Yearbook of the United Nations (1993) . . . . . . . . . . . . . 6
DOCUMENTS
Constant, Emmanuel, Excerpts from Deposition (Ex. B) . . . . . 2
FRAPH, Miscellaneous Documents (Ex. F) . . . . . . . . . . . . 3
U.S. State Department and U.S. Embassy/Haiti,
Miscellaneous Documents (Ex. G) . . . . . . . . . . . . . passim
1X
INTRODUCTION
In the early morning hours of October 16, 1993, 32-year-old
Alerte Belance, a market vendor and supporter of then-exiled
Haitian President Jean-Bertrand Aristide, was dragged from her
home by armed members of the Defendant Front Pour L'Avancement et
Le Progres [hereinafter FRAPH]. Ms. Belance was taken to an area
outside Port-au-Prince known as "Titanyen," (a "killing field"),
where she was brutally tortured: slashed repeatedly on her head,
neck and arms with a machete, thrown under a bush and left for
dead.
Miraculously, Ms. Belance survived, despite deep gashes in
her head, mouth and neck, and despite losing her right forearm,
parts of her tongue, and the hearing in her severed right ear.
Having obtained political asylum, she now lives with her husband
and their three children in New Jersey.
The attack against Alerte Belance was perpetrated by four
members of the paramilitary group FRAPH, as part of FRAPH's
pattern of organized and systematic violence against real and
perceived opponents of the military regime. FRAPH was created and
financed by the Haitian security forces. It committed egregious
and widespread human rights abuses with complete impunity during
the military regime, operating under the direction and control
of, and in close coordination with, the Haitian army and police.
At the time Alerte Belance filed and served her complaint,
FRAPH was present and doing business as an unincorporated
association in New York State, and had an office in the Eastern
District of New York. Plaintiff served the complaint on Lyonel
Sterling, the managing agent of FRAPH's New York office, on June
1, 1994. Defendant having failed to appear in this action,
Plaintiff seeks judgment by default on her claims pursuant to
Federal Rules of Civil Procedure 55(b)(2).
On motion for default judgment, the Court must take as true
all issues of fact as averred in the complaint. Pope v. United
States, 323 U.S. 1, 12 (1944). After confirming that it has
subject matter jurisdiction over this suit, this Court must
determine the award of compensatory and punitive damages to which
Plaintiff is entitled. United Food & Commercial Workers Union v.
Centermark Properties Meriden, 30 F.3d 298, 301 (2d Cir. 1994).
This motion is based upon the allegations of the complaint,
this memorandum of law and the following exhibits, which include
documents obtained from the U.S. government in response to third
party subpoenas, issued by the plaintiff:
Exhibit A: Declaration of Plaintiff Alerte Belance
Exhibit B: Excerpts from June 7, 1995 and December
28-29, 1995, Depositions of Emmanuel Constant
Exhibit C: Declaration of Anne Fuller, expert on human
rights in Haiti and on Defendant FRAPH
Exhibit D: Declaration of William O'Neill, expert on
Haitian law
Exhibit E: List of representative human rights abuses
committed by FRAPH
Exhibits F1-F8:FRAPH, miscellaneous documents
Exhibits G1-G17: U.S. government documents concerning FRAPH
Exhibit H: Affidavit of International Law Scholars,
submitted in Ortiz v. Gramajo, No. 91-11612,
decided sub nom. Xuncax v. Gramajo, 886 F.
Supp. 162 (D. Mass. 1995)
Exhibit I: Summary of damage awards in prior Alien Tort Claims Act cases
Based on this submission, Plaintiff asks this Court to award
substantial compensatory and punitive damages, sufficient to
remedy-- at least in some measure -- the harm suffered by Ms.
Belance and to punish and deter the egregious human rights abuses
committed by Defendant FRAPH.
STATEMENT OF FACTS
A. Haiti: Background
Haiti has been the scene of decades of brutal human rights
abuses. U.S. occupation forces withdrew in 1934, after a 20-year
occupation, leaving behind an oppressive security apparatus that
ruled Haiti for over fifty years, under the control of a series
of dictators, including Francois Duvalier (1957-71) and his son
Jean-
Claude Duvalier (1971-86). Ex. C, Declaration of Anne Fuller 8
[hereinafter Fuller Decl.]. Post-Duvalier democratic elections
were scheduled for November 1987, but had to be postponed because
of internal turmoil.
Pro-democratic forces seemed to have finally triumphed over
the military with the December 1990 election of Father Jean-
Bertrand Aristide as Haiti's first democratically elected
president in history. Aristide took office in February 1991. Only
six months later, however, a military junta led by the
Commander-in-Chief of the Haitian Armed Forces, Lt. Gen. Raoul
Cedras, overthrew President Aristide and installed a regime
characterized by systematic human rights abuses, violence, and
corruption. Fuller Decl. 9.
The overthrow of President Aristide was widely condemned.
Under the auspices of the Security Council, the international
community first fiercely protested, then negotiated, and finally
intervened with military power in order to restore President
Aristide to power. Fuller Decl. 10-13.
B. Systematic Human Rights Abuses Under the Military
Regime
After the coup, Amnesty International reported that the
security forces and the thousands of civilians acting
in collusion with them carry out a wide range of abuses
with total impunity. The old repressive structures,
which the deposed Aristide government had partly
succeeded in dismantling, are back in place.
4
Several human rights groups based in Haiti estimated that between
October 1991 and August 1992 more than 3,000 extra-judicial
executions took place, 90 percent of them in Port-au-Prince.
Fuller Decl. 15. They characterized the military regime as
massively abusive of human rights, an accusation which was
confirmed by official international human rights missions to
Haiti. Id. For instance, the Organization of American States
reported:
In May [1992], extra-judicial executions increased.
Military, accompanied by armed civilians, made
late-night incursions into poor neighborhoods of
Port-au-Prince, searching houses and beating and
shooting their inhabitants.
Organization of American States, Report on the Situation of Human
Rights in Haiti (1993) at 21 [hereinafter O.A.S. Report 1993].
The U.S. State Department also reported that violent repression
by the army, the police, and paramilitary groups acting under
color of law were characteristic of General Cedras' rule. Ex. G1,
pp. 3-4. Numerous cases of extrajudicial execution,
disappearance, arbitrary detention, rape and other torture,
extortion, assaults, and intimidation are listed in the reports
of official human rights missions, non-governmental human rights
groups and the press. Women were subjected to sexual and other
violence because of the activities of family members, as well as
their own political activities. See. e.g., O.A.S. Report 1993;
Organization of American States, Report on the Situation of Human
Rights in Haiti 1994 [hereinafter O.A.S. Report 1994]: Americas
Watch/National Coalition for Haitian Refugees, Silencing a
People: The Destruction of Civil Society in Haiti (1993); Human
Rights Watch/National
5 Coalition for Haitian Refugees, Terror Prevails in Haiti (April
1994); Human Rights Watch/National Coalition for Haitian
Refugees, Rape in Haiti: A Weapon of Terror (July 1994).
As noted in the 1993 Yearbook of the United Nations,
The most serious and greatest incidence of human rights
violations observed by the [U.N.] Mission included
violations of the right to physical integrity and
individual security, intended primarily to restrict or
prohibit freedom of expression, of assembly and of
peaceful association; . . . systematic beatings and
torture; deaths in detention following torture;
enforced disappearances, . . . and arbitrary
executions, perpetrated by "zenglendos" (criminal
recruits operating at night in the slums and
working-class districts),paramilitary groups, bands of
delinquents or State agents.
Yearbook of the United Nations (1993) at 340.
Violations of human rights dramatically increased after the
signing of the Governors Island Agreement in July 1993. Fuller
Decl. 16. The O.A.S. Report 1993 observes,
many people have been unlawfully detained, summarily
executed, mistreated and tortured by members of the
Armed Forces, the Police and civilian collaborators. In
the majority of cases, the victims have been followers
of the deposed President Jean-Bertrand Aristide; in
other cases, the victims are people who were simply
suspected of being Aristide supporters.
O.A.S. Report 1993 at 17.
C. The Defendant: FRAPH
The Front Pour L'Avancement et Le Progres Haitians (Haitian
Front for Advancement and Progress, FRAPH) was created in
September 1993. Fuller Decl. 16; Ex. B, Deposition of Emmanuel
Constant, December 28-29, 1995, Vol. I at 46 [hereinafter Second
Constant Depo.]; Ex. B, Deposition of Emmanuel Constant, June 7,
1995, at 91, 92. [Hereinafter First Constant Depo.] FRAPH soon
grew to be a strong presence throughout Haiti. First Constant Depo., at 91,
92. The State Department observed that "[t]he emergence of FRAPH,
which operated in conjunction with the Fad' H [Haitian Armed
Forces] in numerous localities, had aggravated the situation" in
Haiti. Ex. G2, p. 5. This conclusion is underscored in the O.A.S
Report 1994 which confirmed that after the signing of the
Governors Island Agreement, "violations [were] being committed
not only by section chiefs and their associates, but also by new
'militia' recently created by the Army to continue the
repression." O.A.S. Report 1994 at 2.
1. FRAPH Acted Under Color of Law
FRAPH was formed by "high-level military officials," Ex. G3,
p. 2, and was from its creation "an army-created phenomenon." Ex.
G4, p. 2. Operating with the support -- tacit and open -- of the
Haitian military, Fuller Decl. 16, FRAPH's purpose was to serve
as "the vehicle and 'political cover' for the opposition among
police, military and Duvalierist leaders to the Governors Island
Accord . . . and the return of President Aristide." Ex. G5, p. 1.
The U.S. government recognized FRAPH as nothing more than a
"renta-mob group financed by the military," without "an
independent ideology or base," designed to implement the
military's most brutal and nefarious acts of violent political
repression. Fuller Decl. 17; Ex. G6, p. 1.
FRAPH's leaders, Louis Jodel Chamblain and Emmanuel
Constant, were both "prominent attache chieftains with close
links to military figures like police chief Michel Francois and
Duvalierist 'old guard' figures." Ex. G5, p. 2. Further persons
closely connected to FRAPH were army chief of staff General
Biamby and Cedras' wife. Fuller Decl. 17; EX. G6, p. 1.
FRAPH was supported by and cooperated with the Haitian Armed
Forces. Id. Americas Watch and the National Coalition for Haitian
Refugees wrote in April 1994: "FRAPH, which sounds like the
French word for 'hit,' has been nurtured by the military since
its emergence in September 1993." Americas Watch/National
Coalition for Haitian Refugees, Terror Prevails in Haiti (April
1994) at 5. FRAPH members carried identification cards issued by
the Haitian Armed Forces. Fuller Decl. 17; see Ex. F1. They
"consistently operated, often violently, in support of the Cedras
regime." Fuller Decl. 17; Ex. G6, p. 1.
FRAPH claimed to be a political party but never registered
as such in Haiti and did not participate in the Haitian political
process. The de jure government of President Aristide, the U.S.
Department of State, and the U.S. Embassy in Port-au-Prince all
regarded FRAPH as an "illegitimate paramilitary organization."
Fuller Decl. 17; Ex. G7, p. 6. Although the Haitian
Constitution prohibits the existence of any armed organization
apart from the Haitian Armed Forces and the police, art. 263,
1, neither the Armed Forces nor the police made any attempt to
block FRAPH's illegal activities. O.A.S. Report 1994 at 13,163. To the contrary, the military government clearly supported FRAPH. Id. at
161. FRAPH also enjoyed the favor of the police, whose permission
was necessary for all public demonstrations and marches. The U.S.
Embassy in Haiti observed that "FRAPH demonstrations always have
police officers assigned to accompany and provide crowd and
traffic control." Ex. G5, p. 2. FRAPH used its "monopoly of power
for financial gain as well as to subjugate and abuse the
populace." Fuller Decl. 18.
2. FRAPH was Responsible for Egregious
International Human Rights Violations
FRAPH's thugs employed brutal violence in support of the
repressive policies of the de facto government of General Cedras.
In their systematic raids against suspected supporters of
President Aristide, FRAPH cooperated with the police or the Armed
Forces, and acted with the protection and assistance of those
forces. Fuller Decl. 20-21; Organization of American States,
Report on the Situation of Human Rights in Haiti (1995) at 33
[hereinafter O.A.S. Report 1995]. Exhibit E lists a sampling of
just a small number of the violent human rights abuses for which
FRAPH was responsible between its emergence in September 1993 and
the restoration of President Aristide in September 1994, all
committed under the authority of the de facto military regime.
As the list indicates, FRAPH was responsible for widespread
murders, committed through arson as well as through
disappearances and illegal detentions followed by killings. In
nightly raids, members of FRAPH kidnapped Aristide supporters
from poor neighborhoods and executed them. For example, on April
22, 1994,
9 a raid on the Raboteau neighborhood by armed soldiers and members
-of FRAPH left at least 23 persons dead. Fuller Decl. 20: Ex.
G8, p. 2; O.A.S. Report 1995 at 52.
Rapes by FRAPH members were also widespread. The O.A.S.
Report 1995 found that,
The primary instruments of the repression inflicted on
women and children in Haiti have been rapes . . .
committed by members of the army and police forces,
their armed civilian auxiliaries, the attaches,
paramilitary groups, and members of FRAPH, acting with
complete impunity. . . . It always happens in the same
way: armed men, frequently soldiers or FRAPH members,
violently enter the house of a political militant to
arrest him. When he is not there and the family cannot
say where he is, the intruders turn against his wife,
sister, daughter, or cousin.
O.A.S. Report 1995 at 39-40; Fuller Decl. 23. The O.A.S.
specifically found that the rapes in Haiti constituted torture
under international law. O.A.S. Report 1995 at 43-44.FRAPH also
engaged in large-scale military operations, attacking villages,
beating and otherwise abusing the inhabitants, and destroying
their homes and possessions. Neighborhoods thought to be
sympathetic to Aristide were invaded and besieged. Fuller
Decl. 21: U.N./O.A.S. International Civilian Mission in Haiti,
Press Release, Ref. CP/94/11 (March 30, 1994). Many of those who
were not killed were detained and tortured. The Inter-American
Commission on Human Rights wrote after its visit to Haiti in May
1994:
The delegation . . . received numerous reports of
arbitrary detention, routinely accompanied by torture
and brutal beating by agents of the Armed Forces of
Haiti and paramilitary groups, especially members of
the Revolutionary Front for Advancement and Progress in
Haiti (FRAPH), who act in concert with the Armed Forces
and Police.
10 Inter-American Commission on Human Rights, Press Release No.
11/94 (May 20 1994); Fuller Decl. 22. FRAPH's targets included,
among others, international observers, local human rights
advocates, the U.S.S. Harlan County (as it tried to land carrying
a contingent of U.N. peacekeepers), and Haitian government
ministers trying to restore civilian rule.
In summary, FRAPH was responsible for hundreds of egregious
violations of the most fundamental human rights. FRAPH
"systematically perpetrated the most heinous human rights
violations on the people of Haiti. Hundreds of instances . . .
have been documented by human rights organizations and the
international press alike." Fuller Decl. at 4, Summary of
Conclusions. By so effectively intimidating those who sought the
return of President Aristide -- including the United States
government and international advocates, as well as the Haitian
people -- FRAPH also bears responsibility for prolonging military
rule in Haiti, thus contributing to thousands of additional human
rights violations.
3. FRAPH was Present and Doing Business in the
Eastern District of New York in June 1994
FRAPH was present and doing business in New York State at
the time the complaint was filed. It maintained two offices, in
Brooklyn and Far Rockaway, along with post office boxes in both
communities. Complaint 8. At least three people represented
FRAPH in New York: Lyonel Sterling, General Coordinator and
managing agent of FRAPH New York; Rigaud Noel, Assistant General
Coordinator of the local group; and Sylvestre Jean-Leger, a
political organizer. Id.
11 FRAPH's activities included frequent media interviews by
FRAPH representatives, as well as a stream of faxes, letters and
paid advertisements to nongovernmental organizations, the U.S.
media, U.S. government officials, and the United Nations.
Complaint q 8; see Ex. F2-F8 (samples of FRAPH documents). FRAPH
organized public demonstrations in New York.
FRAPH's political activities in New York were carried out in
support of FRAPH's policies in Haiti. Its political statements
were clearly anti-Aristide, pro-military government, in keeping
with FRAPH's focus on discrediting the elected civilian
government and bolstering the illegal military regime. See Ex.
F2-F8.
D. Alerte Belance
1. Plaintiff's Ordeal
Alerte Belance lived with her husband, an ironworker, and
their three children in Carrefour, Haiti. She sold rice in the
market. Belance was an active supporter of Father Aristide during
the election campaign in late 1990 and early 1991. Complaint
14; Ex. A, Declaration of Alerte Belance, 2 [hereinafter
Belance Decl.]. Her husband was both an active supporter of
Aristide and a member of the Front National pour Le Changement et
la Democratie (National Front for Change and Democracy), a
coalition of groups campaigning for Aristide s election.
After the military coup, Belance, her family, her neighbors,
and her colleagues in the market began to experience intense
political repression. People she knew were killed or disappeared.
Members of FRAPH harassed small groups of people who gathered
near
12 their home to discuss politics. Her husband was repeatedly
threatened by FRAPH, and at one point members of FRAPH came to
their home and stole his tools. Complaint 14; Belance Decl. 4.
Belance and her family left their home for several months to
escape the threats, then returned to their home in order to
support themselves financially. Id.
On October 16, 1993, at about 1:00 a.m., Belance and her
husband were awakened by gunshots and banging at their door, as
four armed men broke into the house. Complaint 15; Belance Decl.
5. They were the same FRAPH members who had come to the house
previously and stolen her husband's tools. Belance Decl. 5. Both
Belance and her husband assumed that the intruders were hunting
for her husband: they had been "half-expecting, half-dreading"
such a FRAPH attack. Id. Her husband dressed hurriedly and left
through a secret window at the rear of the house that they had
built for just such an emergency. Complaint 15; Belance Decl.
5.
The intruders asked for her husband, and told her they were
from FRAPH. Complaint 16; Belance Decl. 6. Belance told them
that her husband was not at home and insisted that she did not
know where to locate him. One of the men asked her whether her
husband was out celebrating the imminent return of his "father."
Id. Two of the men then grabbed her by the legs, pulled her out
of the
13 house and threw her into a car. Both were armed, one with a
machete, the other with a machine gun. Id.
The men drove Belance to a field outside of Port-au-Prince
named Titanyen and known as the "killing field" because the
bodies of murdered opponents of the military government were
regularly dumped there by their killers. Belance was pulled out
of the car. She stood on her feet. One of the kidnappers
approached her with a machete and began to torture her, striking
her across the face and slicing through her ear. With a second
blow to her face, he sliced across her nose, cutting her tongue
and gums. Complaint 17; Belance Decl. 7. Belance threw herself
to the ground and tried to protect her head with her arms; the
assailant continued to strike her repeatedly with the machete.
One blow sliced through her arm, almost severing it below the
elbow. Complaint 17; Belance Decl. 8. She heard another of her
torturers ask, "Are you done yet? Are you sure she's dead?" The
attacker responded, "She must be dead." Complaint 17; Belance
Decl. 9. They pulled her body toward some bushes, and left.
Belance lost consciousness.
Belance regained consciousness the next morning. She managed
to drag herself to the edge of the highway. A passing truck took
her to the hospital, where a doctor predicted that she would not
survive. Complaint 18; Belance Decl. 10. Her arm, hanging only
by the skin, was amputated below the elbow and deep wounds to her
neck, head, face, and mouth were treated. Complaint 18; Belance
Decl. 11.
14 Members of FRAPH came to the hospital and asked the hospital
staff about Belance's whereabouts. She was forced to hide within
the hospital for several days to evade FRAPH, then slipped out of
the hospital. Complaint 19; Belance Decl. 12. The doctors who
had helped her also went into hiding, fearing that FRAPH would
attack them because they had helped Belance. Belance Decl. 12.
FRAPH continued to threaten to kill Belance, and she went into
hiding to escape their threats. Complaint 19; Belance Decl.
12.
Three months after the attack, Belance obtained political
asylum in the United States and flew with her husband and
children to Newark, New Jersey. They spent two months in a
homeless shelter, then obtained a place to live. Complaint 20;
Belance Decl. 13.
Human rights expert Anne Fuller notes the attack on Alerte
Belance by members of FRAPH is typical of FRAPH's pattern of
human rights violations:
Plaintiff Alerte Belance's account of the vicious
attack she was subjected to by members of FRAPH is
consistent in every respect with those reported by
hundreds of other victims and documented by
international observers. Belance's situation is
exceptional only to the extent of her miraculous
survival. There are many documented examples of
individuals kidnapped by men, whom witnesses have
recognized as members of FRAPH, individuals whose
bodies were later discovered mutilated by machetes.
Fuller Decl. at pp. 4-5, Summary of Conclusions. Indeed, the
FRAPH members who tortured Ms. Belance thought that they had
succeeded in killing her as well.
15 2. Plaintiff's Damages
Belance continues to suffer chronic pain as a result of her
physical injuries. She has difficulty sleeping. Her head and neck
hurt; she is often dizzy and suffers from severe headaches. Some
of her wounds became infected and were untreated for many months;
as a result, they have not healed properly and remain painful.
Complaint 20; Belance Decl. 15.
Belance is now deaf in her right ear as a consequence of the
attack. The doctors in Haiti reattached her severed ear, but were
unable to restore her hearing in that ear. The ear becomes
infected frequently and fills with pus. Belance Decl. 16. She
is missing her right hand and part of her right arm (she was
right-handed before the attack), and wears a prosthetic arm. Id.,
17. She also lost one finger and part of another on her left
hand, and is unable to fully move that hand. Id., 19. She is
missing the upper part of her mouth and all of her upper teeth,
and can only eat soft or liquid food, because she is unable to
chew. Id., 20. Her left eye was damaged by the machete blows;
she cannot close it properly and it waters uncontrollably. Id.,
21.
As a result of her injuries, Belance is unable to dress or
bathe herself, to work, to perform household chores, or to care
for her family as she would like. The family has no steady
income. They sold all their belongings to pay for Belance's
medical care. Id., 22.
Belance and her family, including her husband and children,
suffer from deep psychological scars as a result of their ordeal.
16 Compl. 20. Her children are unhappy in the United States and
have had difficulty adjusting to life here. All three children
are in poor health. Her 13-year-old son is beaten at school, and
is homesick for Haiti and his life there. Belance Decl. 22.
Belance herself is embarrassed by her physical appearance and her
poverty. Id., 24. She dreams of returning to Haiti, but is
uncertain about how her family would survive. Id., 26.
E. The Judiciary System in Haiti
Since September 19, 1994, when multinational forces were
deployed, the human rights situation in Haiti has vastly
improved. Fuller Decl. 26. Nevertheless, the situation is still
very fragile. Human Rights Watch--Americas/National Coalition for
Haitian Refugees, Haiti: Security Compromised (March 1995).
Paramilitary networks are no longer visible, but most of the
weapons of FRAPH and similar groups have remained uncollected.
Ex. G2, p. 11. Human rights violators are still at large. Fuller
Decl. 26. There has been a noticeable increase in crime. Id.;
Ex. G1, p. 4. Criminals arrested by the police are released
because of difficulties with the courts. Fuller Decl. 27.
The problems with Haiti's administration of justice date
back to the Duvalier regime, Fuller Decl. 28; Ex. G9, p. 4, and
continued through the pre-Aristide governments. O.A.S. Report
1993 at 45, 55. During Aristide's first period in office, he was
unable to make headway against the inadequacies of the judicial
system. A U.N. expert reported in January 1992: "The current
state of the administration of justice is disturbing. Despite the
good will
17 expressed by the Ministers in President Aristide's Government . .
. the judicial system is still manifestly inadequate and
corruption is widespread." Report on the Human Rights Situation
in Haiti, U.N. Doc. E/CN.4/1992/50 (Jan. 31, 1992) at 3. The U.N.
expert found that civil justice was virtually non-existent, and
that "Haitian lawyers were afraid to represent their clients and
were subject to intimidation. Generally speaking, people have no
faith in lawyers, the courts or proceedings." Id. at 32. Under
the Cedras regime, the judiciary completely collapsed. Ex. G9, p.
4; O.A.S. Report 1995 at 84. The O.A.S. delegation noted in May
1994 the "total absence" of functioning judicial institutions,
which resulted in complete impunity for those committing human
rights abuses. Ex. G10, p. 3.
Since Aristide was restored to power, little progress has
been made in rebuilding the judiciary.
The Duvaliers and subsequent military dictatorships
intentionally undermined the rule of law and kept the
legal system weak and ineffective. . . . Although the
Aristide government and its principal international
backers, especially the United States, have made legal
reform a high priority, deep structural weaknesses in a
justice system cannot be erased over night.
Fuller Decl. 28. The U.S. State Department concurs in this
evaluation of the Haitian judiciary:
The [Haitian] constitution provides for an independent
judiciary and the right to a fair public trial.
However, this right is widely and severely abridged,
primarily because the judicial system is poorly
organized and virtually moribund after years of
governmental neglect and popular contempt dating back
to the Duvalier era. Political figures across the
spectrum recognize reform of the judicial system as
critical; it is understaffed and its members lack
training and adequate compensation. . . Although the
government has asserted it will select
18 judges in accordance with the constitution, the
parliament has not yet adopted legislation establishing
the mechanisms necessary for selection of judicial
personnel.
Ex. Gll, p. 10 (emphasis added). In its 1995 report on the
situation in Haiti, the O.A.S. also found that "[i]n the present
situation, there is no court that inspires confidence in the
Haitian people that their civil or penal disputes can be
settled." O.A.S. Report 1995 at 86. The Truth Commission created
by President Aristide to investigate thousands of killings during
his three years of exile is not expected to issue a report until
sometime in 1996 and is empowered only to investigate, not to
prosecute abuses.
The frustrating situation of the Haitian justice system was
captured in September 1995 by President Aristide as he dedicated
a monument to victims of human rights abuses during the Cedras
regime. Explaining why the dedication ceremony took place in the
middle of the night, President Aristide said: "We chose . . . the
middle of the night because we are still in the night of
injustice." Fuller Decl. 29.
F. Conclusion
Plaintiff Alerte Belance was horribly mutilated in the
attack upon her by FRAPH. That attack forms the basis for this
complaint. Ms. Belance views both her survival and the fact that
the doctors were able to reattach her tongue as miracles. Belance
Decl. at
19 27. She now feels that she was allowed to live and to speak so
that she can "speak for the dead who cannot talk for themselves."
Id., 30.
It is a miracle that the doctors have been able to give
my tongue back to me. I believe that it is so I can
tell the rest of the world what is being done to my
people. God left me alive as proof that this really
happened in Haiti. Many people are not as lucky as I am
and they die. God let it happen, but God left me alive
to be proof of what goes on in Haiti so the carnage
would stop.
Id., 26.
Ms. Belance asks this Court for an award of substantial
compensatory damages, adequate to restore -- if only through
economic compensation -- some small portion of that which was
taken from her in the attack upon her by FRAPH. She also asks for
an award of substantial punitive damages to express the
international community's outrage and revulsion at the egregious
abuse she suffered, along with so many other Haitians, and to
deter other individuals and paramilitary organizations from
committing such abuses in the future.
20 ARGUMENT
I. THIS COURT HAS JURISDICTION OVER PLAINTIFF'S CLAIMS OF
TORTURE, CRUEL, INHUMAN OR DEGRADING TREATMENT, AND
ARBITRARY DETENTION UNDER THE ALIEN TORT CLAIMS ACT AND
28 U.S.C. 1331. AND SUPPLEMENTAL JURISDICTION OVER
PLAINTIFF'S MUNICIPAL TORT CLAIMS
A. The Alien Tort Claims Act Provides Jurisdiction
Over Plaintiff's Claims
The Alien Tort Claims Act, 28 U.S.C. 1350 [hereinafter
ATCA or 1350], 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.
This action meets the three statutory criteria for jurisdiction:
(1) Plaintiff is an alien seeking damages for (2) a tort
committed by the Defendant which (3) violates established norms
of international law.
Every federal court that has considered claims similar to
those raised by Plaintiff has found that the Alien Tort Claims
Act grants federal courts jurisdiction over such an action. The
Second Circuit, which initiated the modern line of cases under
the ATCA with its landmark decision in Filartiga v. Pena-Irala,
630 F.2d 876 (2d Cir. 1980), has twice reiterated its views, in
Amerada Hess Shipping Corp. v. Argentine Republic, 830 F.2d 421
(2d Cir. 1987), rev'd on other grounds, 488 U.S. 428 (1989), and,
most recently, in Kadic v. Karadzic,____ F.3d ____ , 1995 U.S.
App. Lexis 28826 (2d Cir. Oct. 13, 1995). As the Court held in
Amerada Hess, "[T]he Tort Statute means what it says. If an alien
brings a suit, for a tort only, that sufficiently alleges a
violation of the law of nations, then the district court has jurisdiction." 830 F.2d at
425.
The Second Circuit's interpretation of the ATCA has been
followed by every court that has considered analogous claims,
including the Ninth Circuit, Hilao v. Marcos, 25 F.3d 1467 (9th
Cir. 1994), cert. denied, 115 S. Ct. 934 (1995); Trajano v.
Marcos, 978 F.2d 493 (9th Cir. 1992), cert. denied, 113 S. Ct.
2960 (1993), and district courts around the country.
As in Filartiga, Kadic, and the cases in other
jurisdictions, Plaintiff Alerte Belance is an alien suing for
torts committed in violation of the law of nations. This court
has jurisdiction over her claims of torture, cruel, inhuman or
degrading treatment, and arbitrary detention committed by a
nominally private organization operating under color of law of
the de facto military regime in Haiti.
22 1. The Violations Alleged by Plaintiff Constitute Torts in
Violation of the Law of Nations.
a. The Filartiga Standard and the Cause of Action for
Torture
The Filartiga court established the standard for determining
whether a particular human rights violation constitutes a tort
"in violation of the law of nations" within the meaning of the
ATCA. The appropriate inquiry was summarized by the Kadic court
as follows:
Filartiga established that courts ascertaining the
content of the law of nations "must interpret
international law not as it was in 1789, but as it has
evolved and exists among the nations of the world
today." Id. at 881; see also Amerada Hess, 830 F.2d at
425. We find the norms of contemporary international
law by "'consulting the works of jurists, writing
professedly on public law; or by the general usage and
practice of nations; or by judicial decisions
recognizing and enforcing that law."' Filartiga, 630
F.2d at 880(quoting United States v. Smith, 18 U.S. (5
Wheat.) 153,160-61, 5 L. Ed. 57 (1820)). If this
inquiry discloses that the defendant's alleged conduct
violates
23 "well-established, universally recognized norms of
international law," 630 F.2d at 888, as opposed to
"idiosyncratic legal rules," id. at 881, then federal
jurisdiction exists under the Alien Tort Act.
Kadic, slip op. at 9-10. In articulating the controlling
standard, the Filartiga court found that torture triggers
jurisdiction under the ATCA. There can be little doubt that that
which was inflicted on Plaintiff Belance was torture and fits
within the international definition of that tort., Torture as
defined by international law encompasses
any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a
person for such purposes as obtaining from [her] or a
third person information or a confession, punishing
[the victim] for an act [she] or a third person has
committed or is suspected of having committed, or
intimidating or coercing [her] or a third person, or
for any reason based on discrimination of any kind....
Convention Against Torture and Other Cruel or Inhuman or
Degrading Treatment or Punishment, art. 1, adopted Dec. 10, 1984,
G.A. Res. 39/46, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc.
A/39/51 (1984). See Ex. H, Affidavit of International Law
Scholars Affidavit, submitted in Ortiz v. Gramajo, No. 91-11612,
decided sub nom. Xuncax v. Gramajo, 886 F. Supp. 162 (D. Mass.
1995) [hereinafter Int'1 Law Scholars Aff.] at 26. In this case,
severe pain and suffering was inflicted on Alerte Belance in
order to punish and intimidate her, her husband, and other
supporters of
24 exiled President Aristide. This abuse constituted torture under
international law and within the jurisdiction of the ATCA.
Torture, of course, does not exhaust the list of violations
encompassed within the ATCA. In Kadic, the Second Circuit
asserted ATCA jurisdiction over claims of genocide and war crimes
(whether committed by private or state actors) and over summary
execution, as well as torture. Slip op. at 16-22. Other federal
courts in several jurisdictions have both adopted the Second
Circuit's analysis and extended it to encompass a broad range of
offenses. Plaintiff's claims of cruel, inhuman or degrading
treatment and arbitrary detention likewise fall within the
jurisdiction of the ATCA.
25 b. Cruel, Inhuman or Degrading Treatment
The international norm prohibiting cruel, inhuman or
degrading treatment is universally recognized by both declaratory
and customary international law. The Universal Declaration of
Human Rights, art. 5, adopted Dec. 10, 1948, G.A. Res. 217A
(III), U.N. Doc. A/810, at 71 (1948), provides: "No one shall be
subjected to torture or to cruel, inhuman or degrading treatment
or punishment." All of the major human rights instruments treat
this prohibition on equal footing with the prohibition against
torture. Moreover, the prohibition against cruel, inhuman, or
degrading treatment has been received into customary
international law. International law scholars view cruel,
inhuman or degrading treatment as a universal, obligatory, and
definable international law violation, which triggers
jurisdiction under the ATCA. See Ex. H, Int'l Law
26 Scholars Aff. at 28-35. Several recent decisions have accepted
ATCA jurisdiction over claims of cruel, inhuman or degrading
treatment. Xuncax v. Gramajo, 866 F. Supp. at 185-89; Paul v.
Avril, 901 F. Supp. 330 (final judgment); Abebe-Jiri v. Negewo,
No.90-2010 (N.D. Ga. Aug. 20, 1993). The Xuncax court, in an
extended analysis, concluded that there is a universal consensus
as to a core set of conduct which violates the norm against
cruel. inhuman or degrading treatment. 866 F. Supp. at 187. The
United States has tied this definition to U.S. constitutional
standards. Id. at 186-87. Acts which fall within the agreed-upon
core constitute cruel, inhuman or degrading treatment:
Accordingly, any act by the defendant which is
proscribed by the Constitution of the United States and
by a cognizable principle of international law plainly
falls within the rubric of "cruel, inhuman or degrading
treatment" and is actionable before this Court under
1350.
Id. at 187. Plaintiff's cause of action for cruel, inhuman or
degrading treatment thus states a claim within the jurisdiction
of the ATCA.
27 c. Arbitrary Detention
Arbitrary detention is prohibited by numerous international
human rights instruments, and international judicial decisions
and recognized as an international law violation by all branches
of the U.S. government. The federal courts have declared that
"[n]o principle of international law is more fundamental than the
concept that human beings should be free from arbitrary
imprisonment." Rodriguez-Fernandez v. Wilkinson, 654 F.2d 1382,
1388 (lOth Cir.
28 1981). The International Law Scholars Affidavit defines an
arbitrary detention as occurring "when a person is detained
without warrant, probable cause, articulable suspicion or notice
of charges and is not brought to trial." Ex. H, Int'1 Law
Scholars Aff., at 38. The Restatement (Third) of the Foreian
Relations Law of the United States (1987) [hereinafter
Restatement (Third)] labels a detention arbitrary "if it is
incompatible with the principles of justice or with the dignity
of the human person." 702 cmt. h.
Although an issue of first impression within this Circuit,
other courts have routinely asserted ATCA jurisdiction over
claims of arbitrary detention. See Xuncax v. Gramaio, 886 F.
Supp. at 184-85; Forti v. Suarez-Mason, 672 F. Supp. at 1541-42;
Paul v. Avril, 901 F. Supp. 330 (final judgment); Abebe-Jiri v.
Negewo, No. 90-2010 (N.D. Ga. Aug. 20, 1993); Martinez-Baca v.
Suarez-Mason, No. 87-2057 (N.D. Cal. Apr. 22, 1987). The
International Law Scholars Affidavit defines the tort without
reference to the length or place of the detention. Such claims
have been allowed for arbitrary detentions ranging from less than
a day to two months or longer. See, e.g., Avril, Xuncax
decisions. Plaintiff's cause of
29 action for arbitrary detention states a claim within the
jurisdiction of the ATCA.
2. Defendant FRAPH Acted Under Color of Law and can
be Held Liable for its Violations of International
Law
Some, but not all, international law violations require state
action, Kadic v. Karadzic, slip op. at 22-23, including the
claims alleged by Plaintiff: torture, cruel, inhuman or degrading
treatment, and arbitrary detention. The state action requirement
is met in this case because FRAPH, a nominally "private" group,
was created, financed and directed by the Haitian military
government, and acted at its behest.
The Filartiga court held on the facts before it that
"deliberate torture perpetrated under color of official authority
violates universally accepted norms of the international law of
human rights." 630 F.2d at 878. The court was not called upon to
define the outer limits of the "color of official authority" for
purposes of liability under the ATCA. As noted above, however,
Filartiga did articulate a standard for determining which norms
of international law state claims under the ATCA. The
determination as to who can violate established norms of
international law must be made under the same analysis: "The
evolving standards of international law govern who is within the
[Alien Tort] statute's jurisdictional grant as clearly as they
govern what conduct creates jurisdiction." Amerada Hess, 830 F.2d
at 425. a. Acts Performed Under Color of Law of a De
FactoRegime Meet the State Action Requirement
of International Law
In Kadic, the Second Circuit directly addressed the issue of
whether an actor who was not a representative of a recognized
government could be held to have violated international law. The
Court held that political recognition by the United States was
not a dispositive issue in determining the liability of non-state
or quasi-state actors. Indeed the Court said,
It would be anomalous indeed if non-recognition by the
United States, which typically reflects disfavor with a
foreign regime -- sometimes due to human rights abuses
-had the perverse effect of shielding officials of the
unrecognized regime from liability for those violations
of international law norms that apply only to state
actors.
Id., slip op. at 25-26. The Court adopted the standard of the
Restatement (Third) 201: "Under international law a state is an
entity that has a defined territory and a permanent population,
under the control of its own government, and that engages in, or
has the capacity to engage in, formal relations with other such
entities." Accord Klinghoffer v. S.N.C. Achille Lauro, 937 F.2d
44, 47 (2d Cir. 1991). The Cedras regime, having seized the reins of government from President Aristide's lawful government,
clearly met this definition of a de facto regime. The regime
exercised control over the defined territory and permanent
population of Haiti. It had the capacity to enter into agreements
with other states.
In addition, the Kadic court recognized that far less would
probably meet the requirements of state action under
international law:
Moreover, it is likely that the state action concept,
where applicable for some violations like "official"
torture, requires merely the semblance of official
authority. The inquiry after all, is whether a person
purporting to wield official power has exceeded
internationally recognized standards of civilized
conduct, not whether statehood in all its formal
aspects exists.
Id. at 26. Clearly, the illegal military regime in Haiti acted with far more than the "semblance of official authority," and
wielded "official power" in a manner that far exceeded any norms
of "civilized conduct." As such, the actions of that regime and
of its agents constitute "state action" within the meaning of
international law and trigger jurisdiction under the ATCA.
The illegal military regime of Gen. Cedras, of which FRAPH
was an agent, satisfied the standard for state action necessary
to be held liable for the international torts alleged in this
case. Thus, individuals or other entities acting under color of
law of that regime can be held liable for their violations of
international law.
b. As a Nominally Private Party Acting in
Concert with the Military Regime, Defendant
FRAPH Acted Under Color of Law
FRAPH, a nominally private association, violated
international law because its activities were performed under
color of state authority. International law obligations extend to
acts performed by an "agent of the government" acting "under
color of [state] authority." 207(c) (1987). This state action
requirement is analogous to the color of law requirement found in
42 U.S.C. 1983. Id., 207 note 4. Indeed, the Restatement (Third)
invokes the U.S. Supreme Court's "broad interpretation" of 1983
as a guide to understanding the state action requirement of
international law. Id. This link between the domestic and
international color of law requirements has been endorsed by
judicial interpretation of the Alien Tort Claims Act and by
Congress, in the legislative history accompanying the Torture
Victim Protection Act: both the Senate and the House reports
direct the courts to look to principles of liability under 42
U.S.C. 1983. S. Rep. No. 249, 102d Cong. 1st Sess. 8 (1992); H.R.
Rep. No. 367, 102d Cong. 1st Sess. 5 (1992).
U.S. law has recognized that nominally private parties act
under color of law in a broad range of circumstances. See. e.g.,
Lugar v. Edmondson Oil., 457 U.S. 922, 941 (1982). An otherwise
private actor acts under color of law if "he has acted with or
has obtained significant aid from state officials, or because his
conduct is otherwise chargeable to the State." Id. at 937.
Several tests have been used to determine whether a private actor
is acting "under color of" state law for purposes of 1983
liability, including evidence that the state has delegated a
state function to the private actor, or the existence of a
symbiotic relationship, close nexus, or conspiracy between the private actor and the
state. Each of these tests is met here, where FRAPH was created
by the military to serve as its agent in imposing violent
repression on the civilian population. An "army-created
phenomenon," according to the U.S. Department of State, FRAPH's
purpose and function was to suppress political opposition to the
Cedras regime and to eliminate supporters of President Aristide.
FRAPH clearly acted under color of law.
This case concerns a vicious paramilitary group created and
financed by the state to terrorize the civilian population.
Without belaboring the obvious, a quick survey of 1983
precedents demonstrates that such acts constitute violations
committed under color of law--in this case, by the de facto military regime in
Haiti.
The delegation of state functions to private actors
transforms otherwise private action into state action. West v.
Atkins, 487 U.S. 42, 54 (1988) (private physician who contracted
with a state prison to treat inmates held to be state actor);
Evans v. Newton, 382 U.S. 296, 299 (1966) ("[W]hen private
individuals or groups are endowed by the State with powers or
functions governmental in nature, they become agencies or
instrumentalities of the State and subject to its constitutional
limitations"); Rojas v. Alexander's Dep't Store, 924 F.2d 406,
408 (2d Cir. 1990) (store security guard considered state actor
because granted special powers under state law), cert. denied,
502 U.S. 809 (1991); Henderson v. Fisher, 631 F.2d 1115, 1118-19
(3d Cir. 1980), on remand, 506 F. Supp 579 (state action exists
where private campus police were delegated state police power);
Fernandez v. Diversified Info. Sys., 762 F. Supp. 1544, 1546
(D.P.R. 1991), aff'd, 957 F.2d 44 (1st Cir. 1992) (symbiotic
relationship exists when defendant performs a traditionally
public function); Ropy v. Skupien, 758 F. Supp. 471, 473 (N.D.
Ill. 1991) (railroad police officer a state actor because
police powers delegated by state).
FRAPH operated with the explicit and tacit cooperation of
the Haitian police and security forces. In their systematic raids
against suspected supporters of President Aristide, FRAPH
frequently detained people, working in close cooperation with the
police and the armed forces. Fuller Decl. 20-21; O.A.S. Report 1995 at 33. The Cedras regime, by arming, organizing, and
financing FRAPH, effectively delegated police power to a private
party. FRAPH is therefore liable for the use or misuse of such
authority. In effect, FRAPH served as the unofficial military
police for the Cedras regime. By fulfilling and abusing a
"traditional public function," i.e., exercising police power to
maintain order throughout Haiti, FRAPH acted under the color of
law.
The interrelationship between FRAPH and the Haitian military
regime meets each of the other tests for state action under
1983. For example, private action is transformed into state
action when "the State has so far insinuated itself into a
position of interdependence with [the private party] that it must
be recognized as a joint participant in the challenged activity."
Burton v. Wilmington Parking Auth., 365 U.S. 715, 725 (1961);
Chan v. City of New York, 803 F. Supp. 710, 718 (S.D.N.Y. 1992), aff'd, 1 F.3d
96, (2d Cir. 1993); cert. denied, 114 S. Ct. 472 (1993); Hadaes
v. Yonkers Racing Corp., 918 F.2d 1079, 1081 (2d Cir. 1990),
cert. denied, 499 U.S. 960 (1991). FRAPH satisfies this
"symbiotic relationship" test because (1) the military regime in
Haiti provided FRAPH with financial and military support; (2)
the Cedras regime gained politically and economically from the
program of terrorism embarked upon by FRAPH; and (3) state
officials founded FRAPH, coordinated their activities and
provided FRAPH with police protection, issued FRAPH members
military identification cards, and bore full responsibility for
the acts of torture and summary execution of Haitian civilians
committed by FRAPH members.
In addition, FRAPH satisfies the governmental nexus test,
which holds that private action is performed "under color of
state law" when there is a sufficiently "close nexus" between
"the State and the challenged action of the regulated entity so
that the action of the latter may be fairly treated as that of
the State itself." Jackson v. Metropolitan Edison Co., 419 U.S.
345, 351 (1974); Graseck v. Mauceri, 582 F.2d 203, 209 (2d Cir.
1978), cert. denied, 439 U.S. 1129 (1979); Chan v. City of New
York, 803 F. Supp. 710 (S.D.N.Y. 1992), aff'd, 1 F.3d 96 (1993).
A close nexus exists when there is "significant encouragement, either overt or
covert, [so] that the choice must in law be deemed to be that of
the government." Chan, 803 F. Supp. at 720, quoting San Francisco
Arts & Athletics. Inc. v. United States Olympic Comm., 483 U.S.
522, 546 (1987).
The facts indicate that the requisite close nexus existed,
in that FRAPH engaged in its program of terror with the overt
military and financial support of the Cedras regime. The
abduction, assault, and attempted murder of Alerte Belance was
not a random, isolated act of violence, but a calculated act of
political terror organized and supported by the military
dictatorship under Cedras.
Evidence of conspiracy also satisfies the state action
requirement of 1983: a private party conspiring with a
government official to violate an individual's civil rights acts
under color of law and is liable. Adickes v. Kress & Co., 398
U.S. at 152; United States v. Price, 383 U.S. 787, 794 (1966);
Hughes v. Benevolent Patrolmen's Assoc., 850 F.2d 876, 880 (2d
Cir. 1988); Goldschmidt v. Patchett, 686 F.2d at 585; Smith v.
United States,723 F. Supp. 1300, 1306, aff'd 964 F.2d 630 (7th
Cir. 1992), cert.denied, 113 S.Ct. 1015 (1993). See. e.a., Leahy
v. Board of Trustees of Communitv College District No. 508, 912
F.2d 917, 921 (7th Cir. 1990) (private union may act under color
of law if it willfully participates in joint action with state
agents); Malak v.Associated Physicians. Inc., 784 F.2d 277, 281
(7th Cir. 1986);Scheetz v. Mornina Call Inc., 747 F. Supp. 1515,
1520 (E.D. Pa.1990) (state action may be found if police conspire
with newspaper to publish police reports); In re Jackson/Lockdown Cases, 568 F.
Supp. 869, 877 (E.D. Mich. 1983) (characterizing private union,
in conspiracy with prison guards to deprive prisoners of rights,
as state actor).
The cooperation between the military regime and FRAPH show
the necessary conspiracy to support a finding of state action:
FRAPH was an "army-created phenomenon," Fuller Decl. 16,
supported and financed by the Haitian armed forces. Fuller Decl.
17.
B. 28 U.8.C. 1331 Provides Jurisdiction Over
Plaintiffts International Law Claims
This Court has also subject matter jurisdiction over
Plaintiff's claims of international law violations under federal
question jurisdiction, 28 U.S.C. 1331, which provides
jurisdiction over "all civil actions arising under the
constitution, laws, or treaties of the United States."
The Supreme Court has repeatedly held that fundamental norms
of international law are incorporated into U.S. law as federal
common law. The principle was set forth long ago by Chief Justice
Marshall, who held in The Nereide that U.S. courts are "bound by
the law of nations which is a part of the law of the land." 13
U.S. (9 Cranch) 388, 423 (1815); accord The Paquete Habana, 175
U.S. at 700. More recently, the Supreme Court directed federal
courts to apply international law norms as part of the federal
common law in a series of expropriation cases commencing with
Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964). The
principle is similarly well-established in this Circuit's
jurisprudence:
The law of nations forms an integral part of the common
law, and a review of the history surrounding the
adoption of the Constitution demonstrates that it
became a part of the common law of the United States
upon the adoption of the Constitution.
Filartiga, 630 F.2d at 886 (emphasis in original). The Supreme
Court has also stated unequivocally that 1331 jurisdiction
"will support claims founded on federal common law as well as
those of a statutory origin." Illinois v. Milwaukee, 406 U.S. 91,
100 (1972). Any other reading of 1331, as the Court has held,
would fail to give the word "laws" in the jurisdictional statute
its "natural meaning," for the federal common law is assuredly a
part of the "law . . . of the United States." Id.; 28 U.S.C.
1331.
Cases which present claims grounded in customary
international law -- and thereby federal common law -- "arise
under" U.S. law for purposes of federal question jurisdiction.
Indeed, in Filartiga this Circuit noted that jurisdiction could
have been sustained under 1331 as well as 1350:
We recognize that our reasoning might also sustain
jurisdiction under the general federal question
provision, 28 U.S.C. 1331. We prefer, however, to rest
our decision upon the Alien Tort Statute, in light of
that provision's close coincidence with the
jurisdictional facts presented in this case.
630 F.2d at 887 n.22. A number of district courts have relied
upon 1331 jurisdiction in cases alleging violations of
internationally protected human rights.33
Precedents from the nineteenth century prize cases to the
twentieth century expropriation cases clearly establish the
direct enforceability of customary international law in United
States courts. See e.g., The Paquete Habana, 175 U.S. at 700
(ordering an award of damages to owners of fishing vessels seized
during the Spanish-American war in violation of international
law); Sabbatino, 376 U.S. at 427-437. The Martinez-Baca, Forti,
and Abebe-Jiri rulings that 28 U.S.C. 1331 confers jurisdiction
over claims for torture and murder in violation of customary
international law follow naturally from these property rights
cases. Indeed, it would be perverse if United States courts were
open to protect property rights but not to vindicate personal
rights. Section 1331 provides jurisdiction over Plaintiff's claims.
C. This Court has 8upDlemental Jurisdiction over
Plaintiff's Municipal Law Claims
The supplemental jurisdiction statute, 28 U.S.C. 1367,
provides jurisdiction over Plaintiff's municipal law claims for
assault and battery, kidnapping, and intentional infliction of
emotional distress. Where the federal court has original
jurisdiction over a claim, it also has jurisdiction over related
non-federal claims, provided the "other claims are so related to
claims within such original jurisdiction that they form part of
the same case or controversy under Article III of the United
States Constitution." Id. 1367(a). Plaintiff's
non-international claims arise out of the same conduct and the
same abuses as her international tort claims, and therefore
trigger this Court's supplemental jurisdiction.
II. THIS CASE RAISES NO ISSUE OF FORUM NON COVENIENS
Defendant has waived any forum non conveniens claim by its
default for failure to plead or otherwise defend. As the Supreme
Court has repeatedly held, if a defendant is properly served with
process by a court with subject matter jurisdiction, the
defendant waives all claims of venue by defaulting. Hoffman v.
Blaski, 363 U.S. 335, 343 (1960); see also Commercial Casualty Ins. Co. v.
Consolidated Stone Co., 278 U.S. 177 (1929); Neirbo Co. v.
Bethlehem Shipbuilding Corp.. Ltd., 308 U.S. 165 (1939).
Even if the court were to determine that it should explore
the issue of forum non conveniens despite the default, no grounds
exist for a dismissal in the instant case. While determining
whether a plaintiff's choice of forum is a proper one usually
turns upon a balancing of many public and private interests, a
necessary first test is the availability of an adeauate
alternative venue. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254
n.22 (1981). In this case, no adequate alternative forum is
available. Although conditions in Haiti have vastly improved
since the restoration of the civilian government, the Haitian
judicial system is still "virtually moribund," according to the
U.S. State Department. Ex.G 11, p. 10. The Organization of
American States reached the same conclusion: "[T]here is no court
that inspires confidence in the Haitian people that their civil
or penal disputes can be settled." O.A.S. Report 1995 at 86. Ongoing violence in Haiti also
makes it dangerous for
Plaintiff to litigate in that country. While FRAPH has been
disbanded, its members continue at large and have been allowed to
maintain their weapons. Having suffered so much in Haiti,
Plaintiff should not be forced to return to that country,
endangering her safety, in order to litigate her claims.
Plaintiff's choice of this forum should not be disturbed.
III. PLAINTIFF IS ENTITLED TO COMPENSATORY AND PUNITIVE
DAMAGES FOR TORTURE, CRUEL, INHUMAN OR DEGRADING
TREATMENT, AND ARBITRARY DETENTION
The defendant has violated fundamental international norms
that bar torture, cruel, inhuman or degrading treatment, and
arbitrary detention. International law and federal common law
mandate that Plaintiff Alerte Belance be awarded damages to
compensate for all pecuniary and non-pecuniary injuries resulting
from Defendant's egregious violations of her internationally
protected rights. Under international and federal common law,
punitive damages are also necessary to punish and deter such
egregious trespasses of international law.
A. International Law and Federal Common Law Govern
the Damaqes Award
The classic framework for determining damages under the ATCA
was articulated by Judge Nickerson in the decision on remand in
Filartiqa v. Pena-Irala, 577 F. Supp. 860, 863 (E.D.N.Y. 1984).
Filartiqa's exposition of damages has been espoused and applied
by courts around the country in granting damages under the ATCA
and the TVPA. It remains "the most thoughtful" treatment of the
law to be applied in determining damages, and is generally
applied by courts deciding similar cases.
Judge Nickerson noted that the "tort" that is the subject of the
Alien Tort Claims Act is a wrong "in violation of the law of
nations," not merely "a wrong actionable under the law of the
appropriate sovereign state." Id. at 862-63. Thus, the court
"should determine the substantive principles to be applied by
looking to international law," which was incorporated into the
common law of the United States upon the ratification of the
Constitution. Id.
Following international choice of law principles, Judge
Nickerson looked first to Paraguayan damage rules, but found that
Paraguayan law did not permit punitive damages. Id. at 863-64.
The court determined that "it is essential and proper to grant
the remedy of punitive damages in order to give effect to the
manifest objectives of the international prohibition against
torture." Id. at 865. Invoking its common-law powers under
1350, the court explicitly applied international law:
The international law prohibiting torture established
the standard and referred to the national states the
task of enforcing it. By enacting Section 1350,
Congress entrusted that task to the federal courts and
gave them power to choose and develop federal remedies
to effectuate the purposes of the international law
incorporated into the United States common law.
Id. at 863.
No court adjudicating a claim under the Alien Tort Claims
Act has applied a different measure of damages. See Ex. I,
Judgments in Prior ATCA and TVPA Cases. Following the Filartica
district court's lead, federal courts have consistently applied
international law, as incorporated in federal common law, to
assess compensatory and punitive damages. In Martinez-Baca v. Suarez-
Mason, No. 87-2057 (N.D. Cal. Apr. 22, 1988) the court expressed
the reasoning underlying this approach, holding that
"[i]nternational law principles, as incorporated in United States
common law, provide the proper rules for calculating the damages
to be awarded . . . ." Id. at 4. Every ATCA case against a
defendant charged with gross human rights violations has awarded
punitive and compensatory damages to the plaintiffs, regardless
of the law of the country in which the human rights violations
were committed. Indeed, in the interest of developing a uniform
federal law of damages governing ATCA and TVPA claims, many
courts have declined to consult local law, looking directly to
federal common law.
In this case, Haitian law affords judges discretion in
deciding damage awards. Ex. D, Declaration of William O'Neill,
Haitian law expert, 10, 13. Haitian law provides for full
compensatory damages for injuries, medical expenses, and all
other related expenses related to the deterioration of a victim's
health, as well as pain and suffering. Id., 11. Although
Haitian law does not expressly provide for punitive damages as
understood in U.S. law, its definition of compensatory damages incorporates a
moral component that encompasses many of the concepts understood
as "punitive" in U.S. law, including malice, the brutal nature of
defendant's acts, and the financial situation of the defendant.
Id., 12. Thus, under Haitian law, this court could make an
award of quasi-punitive damages. A better approach, however,
would be to look directly to international law, as incorporated
into federal common law, to guarantee a full punitive damages
award as well as to fully vindicate the international concerns
underlying the ATCA, and to contribute to the development of a
uniform law of damages in these cases.
B. Plaintiff is Entitled to Full Compensation for All
Injuries Proximately Caused by Defendant's Acts
The federal common law of damages echoes the fundamental
international standard that provides a victim compensation for
all injuries caused by defendant's wrongful acts: "It is a
principle of international law . . . that every violation of an
international obligation which results in harm creates a duty to
make adequate reparation." Velasquez-Rodriouez Case, IACourtHR,
Judgment of July 21, 1989, 25, 11 Hum. Rts. L.J. 127 (1989)
(awarding the family of a disappeared person damages for loss of
earnings and psychological injuries). Under international law,
reparations are conceived in terms meant to restore the victim to
her status quo ante as far as is possible. To this end, the
Permanent Court of International Justice defined reparation to
include not only immediate and actual losses, but consequential
injuries as well: Reparation must, so far as possible, wipe out all the
consequences of the illegal act and reestablish the
situation which would, in all probability, have existed
if that act had not been committed.
Case Concerning the Chorzow Factory (Germany v. Poland), 1928
P.C.I.J. (Ser. A), No. 17, at 47.
Federal courts have awarded damages under the Alien Tort
Claims Act for a broad range of physical, emotional and social
harms comparable to the damages requested by Plaintiff in this
case. In Filartiga, the court awarded the decedent's father and
sister $375,000 for pain and suffering, loss of companionship,
disruption of family life, funeral expenses, medical expenses,
future medical expenses for treatment of psychological injuries,
and lost income. 577 F. Supp. at 865. See also Paul v. Avril, 901
F. Supp. 330 (awarding six victims of torture and arbitrary
detention between $2,500,000 and $3,500,000 in compensatory
damages each); Xuncax v. Gramajo, 886 F. Supp. at 197-98 ($14
million in compensatory damages awarded to plaintiffs for pain,
suffering and emotional distress related to summary execution,
disappearance, torture, arbitrary detention and cruel, inhuman or
degrading treatment); Todd v. Panjaitan, 1994 WL 827111 (D. Mass.
1994) (awarding $4 million in compensatory damages to mother and
victim's estate for summary execution and pain and suffering);
Forti v. Suarez-Mason, No. 87-2058 (N.D. Cal. Apr. 20, 1990) ($4
million in compensatory damages awarded against an Argentine
general for injuries suffered by two plaintiffs and their
relatives). In this case, Plaintiff's request for compensatory damages
of $4 million for torture, cruel, inhuman or degrading treatment,
and arbitrary detention is comparable to those awarded in prior
cases. Plaintiff's physical suffering and emotional terror at
being forcibly taken away from her home and severely tortured
with a machete must be compensated. Plaintiff must also be
compensated for the subsequent costs of escaping from Haiti and
piecing together her life and that of her family, burdened, as
she was, by physical handicaps and psychological trauma.
C. Plaintiff is Entitled to Punitive Damaces
Torture is universally condemned as a violation of
fundamental human rights. Filartica v. Pena-Irala, 630 F.2d at
883-85. However, because the international community has few
mechanisms of its own to punish violations such as those
committed by FRAPH, domestic courts are called upon to enforce
the international prohibition through the use of damage awards.
See. e.g., Declaration on the Protection of All Persons from
Being Subjected to Torture, art. 11, G.A. Res. 3452, 30 U.N.
G.A.O.R. Supp. (No. 34), 91 U.N. Doc. A/1034 (1975) (states
should provide compensation to victims of torture).
In this case, the Plaintiff looks to a U.S. federal court,
and thus U.S. federal common law. The Filartiga opinion forms the
bedrock of federal common law regarding punitive damages for
human rights abuses: "[T]he objective of international law making
torture punishable as a crime can only be vindicated by imposing
punitive damages." Filartica, 577 F. Supp. at 863-64. Federal courts entering judgments in subsequent
international human rights cases have all followed Filartiga and
awarded punitive damages. See Exhibit I, Damage awards in prior
cases. See. e.g., Xuncax v. Gramajo 886 F. Supp. 162 (D. Mass.
1995) ($5 million punitive damages for summary execution, $2
million for torture); Todd v. Panjaitan 1994 WL827111 (D. Mass.
1994) ($10 million punitive damages for summary execution); Forti
v. Suarez-Mason, No. 87-2058 (N.D. Cal. Apr. 25, lg90) ($4
million in punitive damages); Ouiros de Rapanort v. Suarez-Mason,
No. 87-2266, (N.D. Cal. Apr. 11, 1989) ($30 million in punitive
damages). No federal court has ever held that punitive damages
could not be awarded in a case against an individual responsible
for intentional human rights abuses.
Punitive damages are likewise proper by analogy to similar
actions under federal common law. See~ e.o;, Bass v. Wallenstein,
769 F.2d 1173, ll90 (7th Cir. 1985) (punitive damages for
wrongful death in a civil rights action permitted as matter of
federal common law). A second analogous body of law has arisen
under 42 U.S.C. 1983, which can be likened to a domestic
counterpart to international human rights law. The Supreme Court
has consistently held that punitive damages are appropriate under
1983 when the defendant's conduct was deemed willful, wanton,
and malicious. Smith v. Wade, 461 U.S. 30, 51 (1983). The amount of punitive
damages should correspond to both the seriousness of the wrong
and the injury to the plaintiff:
In ascertaining [damages] the jury may consider all the
facts which relate to the wrongful act of the
defendant, and its consequences to the plaintiff; but
they are not at liberty to go farther, unless it was
done willfully, or was the result of that reckless
indifference to the rights of others . . . . In that
case, the jury is authorized, for the sake of example,
to give such additional damages as the circumstances
require. The tort is aggravated by the evil motive, and
on this rests the rule of exemplary damages.
Id. at 42, quoting Milwaukee & St. Paul Rv. Co. v. Arms, 91 U.S.
489, 493 (1876).
The defendant organization FRAPH unquestionably had an "evil
motive" in torturing Alerte Belance with a machete and leaving
her to die in the killing field. As in Filartiqa, a punitive
damage award is necessary "for the sake of public example":
Punitive damages are designed not merely to teach a
defendant not to repeat his conduct but to deter others
from following his example. To accomplish that purpose
this court must make clear the depth of the
international revulsion against torture and measure the
award in accordance with the enormity of the offense.
Thereby the judgment may perhaps have some deterrent
effect.
Filartiga, 577 F. Supp. at 866 (citation omitted). The Filartiga
court awarded $10 million in punitive damages against an
individual policeman guilty of an apparently isolated, albeit
vicious, incident of torture. The present case demands a
correspondingly large punitive damages award, since Defendant
committed uncountable similar violations.
The nature and scope of the Defendant's acts, Defendant's
evil motive, and the need for deterring such acts in the future
all place Plaintiff's prayer for at least $9 million in punitive
damages squarely in line with the awards that federal courts
regularly give in cases involving "far less reprehensible"
conduct than that of this defendant. A punitive award of at least
$9 million is thus both reasonable and appropriate.
CONCLUSION
Alerte Belance, the victim of horrific acts of torture and
other abuses, is entitled to substantial compensatory and
punitive damages commensurate with the egregious nature of the
human rights violation committed by defendant FRAPH and with the
horrible injuries the defendant organization inflicted upon her. Respectfully submitted,
HAROLD HONGJU KOH BETH\STETHENS
RONALD SLYE MICHAEL RATNER [MR-3357]
LOWENSTEIN INTERNATIONAL JENNIFER M. GREEN [3G-3169]
HUMAN RIGHTS CLINIC MAHLON PERKINS
127 Wall Street MATTHEW CHACHERE [MC-2653]
New Haven, CT 06520 MARY BORESZ PIKE [MP-5703]
CENTER FOR CONSTITUTIONAL RIGHTS
On the brief: 666 Broadway, 7th floor
Paige Chabora New York, NY 10012
Urs Cipolat 212-614-6431
Adam Farlow
Alexander Kayne
Daniyel Mueenuddin IRA KURZBAN
Ariadne Staples KURZBAN, KURZBAN & WEINGER
Tammy Sun 2650 S.W. 27th Ave., 2nd floor
Robert Tsai Miami, FL 33133
--Lowenstein Clinic 1995
Swati Agrawal
Laura Dickinson Of Counsel:
Steven Parker PAUL HOFFMAN
Jon Wool LAW OFFICES OF PAUL HOFFMAN
Kenji Yoshino 100 Wilshire Blvd., #1000
--Lowenstein Clinic 1994 Santa Monica, CA 90401
Attorneys for Plaintiff
Dated: January 9, 1995
New York, New York
1.Although not a party to this action, Mr. Sterling filed a
purported "answer" in his individual capacity, but specified that
he was not acting on behalf of Defendant FRAPH. (Paragraph 1 of
Sterling's "answer" states: "Respondent is answering the
complaint because a copy of same was served on him, but he is not
a party to the case in litigation.") Since the submission of that
document, neither he nor anyone else appeared at this Court's
October 1994 hearing and no one filed anything further.
2.Plaintiff also refers for general background to human rights
reports prepared by the U.S. Congress and other organizations;
manyof these documents were drafted with the participation of
Plaintiff's experts Anne Fuller and William O'Neill.
3.As set forth in Plaintiff's Motion to Hold Decision in
Abeyance, Plaintiff asks this Court to delay its decision pending
full compliance by the U.S. government with Plaintiff's third
party subpoenas. See Motion to Hold Decision in Abeyance and
accompanying Declaration of Jennifer M. Green.
4.Amnesty International, Haiti: Amnesty International's Current
Concerns (Nov. 1988) at 2.
5.Amnesty International, quoted in Maureen Taft-Morales, Haiti:
The Struggle for Democracy and Congressional Concerns in 1994,
Congressional Research Service (1994) at 9.
6.Constant acknowledges that he and Chamblain were founders and
leaders of FRAPH and that he himself was "an advisor" to General
Cedras. Second Constant Depo., Vol. I, at 40-41, 101, 113-16,
Vol. II at 16, 21, 72.
7.I.e., President Aristide, who is often addressed as "Father
Aristide." Under the Governors Island Agreement, negotiated in
July 1993 but never implemented, President Aristide was scheduled
to return to Haiti on October 30, 1993.
8.Harold Maass, Haitian Commission Seeks the Truth, Dallas
Morning News, Oct. 27, 1995, at 41A; see Susan Benesch, Haitian
Death-Probe Panel has Yet to Begin its Work, N. Y. Times, July
16, 1995, at A28.
9.See. e.g., Xuncax v. Gramajo, 886 F. Supp. 162 (D. Mass. 1995);
Paul v. Avril, 812 F. Supp. 207 (S.D. Fla. 1993) (decision
denying motion to dismiss); 901 F. Supp. 330 Forti v.
Suarez-Mason, 672 F. Supp. 1531 (N.D. Cal. 1987), modified, 694
F. Supp. 707 (N.D. Cal. 1988); Todd v. Panjaitan, No. 92-12255
(D. Mass. Oct. 26, 1994), 1994 WL 827111; Abebe-Jiri v. Negewo,
No. 90-2010 (N.D. Ga. Aug. 20, 1993), appeal araued, No. 93-9133
(llth Cir. Jan. 10, 1995); Quiros de Ranaport v. Suarez-Mason,
No. 87-2266 (N.D. Cal. Apr. 11, 1989); Martinez-Baca v.
Suarez-Mason, No. 87-2057 (N.D. Cal. Apr. 22, 1987).
The unpublished decisions in Todd, Abebe-Jiri, Ouiros de
Rapaport and Martinez-Baca are reproduced in Ex. I.
10.Rather than pursue her claim for "attempted summary
execution," Plaintiff views the attempt to kill her -- which came
agonizingly close to success -- as part of the torture she
endured. In addition to her physical pain, Plaintiff suffered the
psychological torture of hearing her torturers debate whether or
not they had yet killed her.
11.Hilao v. Marcos, 25 F.3d 1467 (summary execution, torture);
Traiano v. Marcos, 978 F.2d 493 (summary execution, torture);
Xuncax v. Gramaio, 886 F. Supp. 162 (summary execution,
disappearance, torture, arbitrary detention, cruel, inhuman or
degrading treatment); Forti v. Suarez-Mason, 672 F. Supp. 1531,
modified by 694 F. Supp. 707 (summary execution, disappearance,
torture, prolonged arbitrary detention); In re Estate of Marcos
Litication, D.C. No. MDL 840 (D. Haw. Feb. 3, 1995), appeal
docketed, No. 95-15779 (9th Cir. May 5, 1995) (summary execution,
torture, disappearance); Todd v. Panjaitan, 1994 WL 827111 (D.
Mass. 1994) (summary execution, torture); Paul v. Avril, 901 F.
Supp. 330 (S.D. Fla. 1994) (final judgment) (torture, cruel,
inhuman or degrading treatment, arbitrary detention); Abebe-Jiri
v. Neaewo, No. 90-2010 (N.D. Ga. Aug. 20, 1993), appeal argued,
No. 93-9133 (llth Cir. Jan. 10, 1995) (torture, cruel, inhuman or
degrading treatment, prolonged arbitrary detention); Ouiros de
Rapaport v. Suarez-Mason, No. 87-2266 (N.D. Cal. Apr. 11, 1989)
(summary execution); Martinez-Baca v. Suarez-Mason, No. 87-2057
(N.D. Cal. Apr. 22, 1987) (torture, prolonged arbitrary
detention). See analysis of the status of torture under
international law in Siderman de Blake v. Republic of Araentina,
965 F.2d 699, 713-719 (9th Cir. 1992), cert. denied, 113 S. Ct.
1812 (1993); Committee of U.S. Citizens Living in Nicaragua v.
Reagan, 859 F.2d 929, 941-42 (D.C. Cir. 1988).
The unpublished decisions in Todd, Abebe-Jiri, Ouiros de
Rananort and Martinez-Baca are reproduced in Ex. I.
12.Hilao v. Marcos, 25 F.3d 1467 (summary execution, torture);
Traiano v. Marcos, 978 F.2d 493 (summary execution, torture);
Xuncax v. Gramaio, 886 F. Supp. 162 (summary execution,
disappearance, torture, arbitrary detention, cruel, inhuman or
degrading treatment); Forti v. Suarez-Mason, 672 F. Supp. 1531,
modified by 694 F. Supp. 707 (summary execution, disappearance,
torture, prolonged arbitrary detention); In re Estate of Marcos
Litication, D.C. No. MDL 840 (D. Haw. Feb. 3, 1995), appeal
docketed, No. 95-15779 (9th Cir. May 5, 1995) (summary execution,
torture, disappearance); Todd v. Panjaitan, 1994 WL 827111 (D.
Mass. 1994) (summary execution, torture); Paul v. Avril, 901 F.
Supp. 330 (S.D. Fla. 1994) (final judgment) (torture, cruel,
inhuman or degrading treatment, arbitrary detention); Abebe-Jiri
v. Neaewo, No. 90-2010 (N.D. Ga. Aug. 20, 1993), appeal argued,
No. 93-9133 (llth Cir. Jan. 10, 1995) (torture, cruel, inhuman or
degrading treatment, prolonged arbitrary detention); Ouiros de
Rapaport v. Suarez-Mason, No. 87-2266 (N.D. Cal. Apr. 11, 1989)
(summary execution); Martinez-Baca v. Suarez-Mason, No. 87-2057
(N.D. Cal. Apr. 22, 1987) (torture, prolonged arbitrary
detention). See analysis of the status of torture under
international law in Siderman de Blake v. Republic of Araentina,
965 F.2d 699, 713-719 (9th Cir. 1992), cert. denied, 113 S. Ct.
1812 (1993); Committee of U.S. Citizens Living in Nicaragua v.
Reagan, 859 F.2d 929, 941-42 (D.C. Cir. 1988).
The unpublished decisions in Todd, Abebe-Jiri, Ouiros de
Rananort and Martinez-Baca are reproduced in Ex. I.
13.See Convention Against Torture and Other Cruel, Inhuman, or
Degrading Treatment or Punishment, art. 16; European Convention
for the Protection of Human Rights and Fundamental Freedoms, art.
3, opened for signature Nov. 4, 1950, 213 U.N.T.S. 222; the
American Convention on Human Rights, art. 5, opened for signature
Nov. 22, 1969, O.A.S.T.S. No. 36, at 1, O.A.S. Doc. OEA/Ser.
L/V/II.50, doe. 6 at 27 (1980); International Covenant on Civil
and Political Rights, art. 7, adopted Dec. 16, 1966, G.A. Res.
2200, 21 U.N. GAOR Supp. (No.16) at 52, U.N. Doc. A/6316 (1966),
999 U.N.T.S. 717; African Charter on Human and Peoples' Rights,
art. 5, adopted June 27, 1981, O.A.U.
Doc. CAB/LEG/67/3 Rev. 5, 21 I.L.M. 58 (1982). See also
Declaration on the Protection of All Persons From Being Subjected
to Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, art. 2, adopted Dec. 9, 1975, G.A. Res. 3452, 30 U.N.
GAOR Supp. (No. 34) at 91, U.N. Doc. A/1034 (1975).
14.See. e.g., Declaration of Tehran, Final Act of the
International Conference on Human Rights 3, at 4, pare. 2, 23
GAOR, U.N. Doc. A/CONF. 32/41 (1968) (noting status of Universal
Declaration of Human Rights, including prohibition against cruel,
inhuman or degrading treatment, as customary international law).
15.The unpublished Abebe-Jiri decision is reproduced in Ex. I.
16.The Xuncax court thus rejected earlier concerns about the
definability of cruel, inhuman or degrading treatment raised in
Forti, 694 F. Supp. at 712.
It is not necessary that every aspect of what might
comprise a standard such as "cruel, inhuman or
degrading treatment" be fully defined and universally
agreed upon before a given action meriting the label is
clearly proscribed under international law, any more
than it is necessary to define all acts that may
constitute "torture" or "arbitrary detention" in order
to recognize certain conduct as actionable misconduct
under that rubric.
Xuncax at 187.
17.See Universal Declaration of Human Rights, arts. 3 & 9,
adopted Dec. 10, 1948, G.A. Res. 217A (III), U.N. Doc. A/810, at
71 tl948); American Convention on Human Rights, art. 7(3), opened
for signature Nov. 22, 1969, O.A.S.T.S. No. 36, at 1, O.A.S. Doc.
OEA/Ser. L/V/II.50, doe. 6 at 27 (1980); International Covenant
on Civil and Political Rights, art. 9, adopted Dec. 16, 1966,
G.A. Res. 2200, 21 U.N. GAOR Supp. (No.16), at 52, U.N. Doc.
A/6316 (1966), 999 U.N.T.S. 171; European Convention for the
Protection of Human Rights and Fundamental Freedoms, art. 5,
opened for signature Nov. 4, 1950, 213 U.N.T.S. 222; African
Charter on Human and Peoples' Rights, art. 6, adopted June 27,
1981, O.A.U. Doc. CAB/LEG/67/3 Rev. 5, 21 I.L.M. 58 (1982).
18.See, e.g.. Hostages Case, 1980 I.C.J. 3, at pare. 91
("Wrongfully to deprive human beings of their freedom and to
subject them to physical constraint in conditions of hardship is
in itself manifestly incompatible with the principles of the
Charter of the United Nations, as well as with the fundamental
principles enunciated in the Universal Declaration of Human
Rights."); Winterwerp Case, 33 Eur. Ct. H.R., (ser. A), at pare.
39 (1979) ("[N]o detention that is arbitrary can ever be regarded
as 'lawful. "').
19.See. e.g., Derian, Human Richts in United States Foreign
Policy--The Executive Perspective, in International Human Rights
Law and Practice 183 (J. Tuttle ed. 1978) (Assistant Secretary of
State for Human Rights and Humanitarian Affairs, Patricia M.
Derian, describing U.S. human rights policy as seeking "greater
observation of all governments of the rights of the person
including freedom from torture and cruel and inhuman treatment,
freedom from the fear of security forces breaking down doors and
kidnapping citizens from their homes, and freedom from arbitrary
detention"); Fraser, Human Rights and United States Foreign
Policy-The Congressional Perspective, in Tuttle, supra, at 173,
176. 20.See also Forti v. Suarez-Mason, 672 F.Supp. at 1541 ("There is
case law finding sufficient consensus to evince a customary
international human rights norm against arbitrary detention.");
De Sanchez v. Banco Central De Nicaragua, 770 F.2d 1385, 1397
(5th Cir. 1985) ("[T]he standards of human rights that have been
generally accepted -- and hence incorporated into the law of-
nations -- . . . encompass . . . such basic rights as the right
not to be murdered, tortured, or otherwise subjected to cruel,
inhuman or degrading punishment; . . . and the right not to be
arbitrarily detained.").
21.The unpublished decisions in Abebe-Jiri and Martinez-Baca are
reproduced in Ex. I.
22.FRAPH may not claim sovereign immunity under the Foreign
Sovereign Immunities Act, 28 U.S.C. 1603 (a) and (b) (FSIA).
The Cedras regime was refused recognition as the lawful
governmentof Haiti not only by the United States but also by the
consensus of international opinion, while exiled President
Aristide was universally recognized as Haiti's lawful leader. See
Lafontant v.Aristide, 844 F. Supp. 128, 130 (E.D.N.Y. 1994) ("The
United States government has consistently recognized
Jean-Bertrand Aristide as the current lawful head-of-state of the
Republic of Haiti."). Thus, neither the military regime nor its
agencies and instrumentalities may claim sovereign immunity.
A finding of liability under the ATCA, based on the fact
that the Cedras regime functioned as the de facto government of
Haiti,does not confer sovereign immunity. A regime acts with
sufficient authority to trigger the state action requirement of
international law if it in fact exercises control of people and
territory. Kadic v. Karadzic, slip op. at 24-26. Indeed, the
Kadic court indicated that a regime could meet the state action
test if it acted with "merely the semblance of official
authority." Kadic, slip op. at 26. In contrast, immunity is a
privilege afforded by the various nations of the world to other
sovereign states as an act of comity. An illegal de facto regime
has no claim to FSIA immunities.
Finally, even if FRAPH had acted on behalf of a lawful state
entitled to FSIA protection, such immunity would be forfeited
where the acts alleged were outside the scope of the lawful
authority of the defendant. Letelier v. Republic of Chile, 488 F.
Supp. 665 (D.D.C. 1980) (egregious human rights violations are
not activities within the lawful authority of the executive);
Chuidian v. Philipoine Nat'1 Bank, 912 F.2d 1095, 1106 (9th Cir.
1990) (sovereign immunity will not shield an official who acts
beyond the scope of his authority). Accord Tra~ano v. Marcos, 978
F.2d at 497. FRAPH's activities fall squarely within these
holdings. To paraphrase the Second Circuit's language in Kadic,
"the [defendant] has not had the temerity to assert in this Court
that the acts [it] allegedly committed are the officially
approved policy of a state." Slip op. at 40.
23.With the passage of the Torture Victim Protection Act,
codified at 28 U.S.C. 1350 (Note) (TVPA), in 1992, Congress
indicated approval of such a definition of "state action." The
TVPA provides a remedy for torture or summary execution committed
by individuals acting "under apparent authority or color of law,"
a standard similar to the Kadic Court's discussion of the
"semblance of authority." Since the TVPA represents, in part, a
codification of the holding in Filartiga, see Lafontant v.
Aristide, 844 F. Supp. 128, 138 (E.D.N.Y. 1994), its language is
a useful guide to the meaning of the ATCA.
24.Section 1983 reaches conduct performed "under color of" state
law. 42 U.S.C. 1983; Adickes v. Kress & Co, 398 U.S. 144, 150,
166 (1969).
25.Forti v. Suarez-Mason, 672 F. Supp. at 1546 ("Claims for
tortious conduct of government officials under 28 U.S.C. 1350
may be analogized to domestic lawsuits brought under 42 U.S.C.
1983, where plaintiffs must allege both deprivation of a
federally protected right and action 'under color of' state
law.").
26.The Supreme Court has phrased the state action test in
several different ways. The Court has said that a person acts
under color of state law when exercising power "possessed by
virtue of state law and made possible only because the wrongdoer
is clothed with the authority of state law . . . ." United States
v. Classic, 313 U.S. 299, 326 (1941). The Supreme Court has also
explained that a party's conduct may be considered state action
where the state 1) creates the legal framework governing the
conduct, 2) delegates its authority to the private actor, e.g.,
West v. Atkins, 487 U.S. 42 (1988) or, 3) knowingly accepts the
benefits derived from the unconstitutional behavior. NCAA v.
Tarkanian, 488 U.S. 179 (1988).
27.Although private actors who become state actors by virtue of
their use of government authority are within the scope of
liability under 1983, the immunity enjoyed by a state official
does not attach to a private conspirator. See. e.g., Wyatt v.
Cole, 504 U.S. 158, 166 (1992) (denying good faith immunity to
private persons who conspire with state officials to violate
constitutional rights); Dennis v. Sparks, 449 U.S. 24, 31-32
(1980) (conspirator acting with state judge acted under color of
law, but judge's absolute immunity did not apply to private
party); Goldschmidt v. Patchett, 686 F.2d 582, 585 (7th Cir.
1982) (immunity of prosecutor does not extend to those who
conspire with him to violate civil rights of others). Thus even
if the Cedras regime were a duly recognized, legitimate regime
and therefore eligible for any immunity, FRAPH itself would not
be immunized.
28. The mere participation of law enforcement officers may
constitute state action. See. e.g., Soldal v. County of Cook, 942
F.2d 1073, 1075 (7th Cir. 1991) (en bane), rev'd on other
grounds, 113 S. Ct. 538, 543-44 n.6 (1992) (state action for
purposes of 1983 possible when deputies stand by to preclude
owner from opposing eviction); Booker v. City of Atlanta, 776
F.2d 272, 274 (llth Cir. 1985) (presence of police officer at
repossession could show "intervention and aid" necessary to find
state action by giving repossession "a cachet of legality");
Greco v. Guss, 775 F.2d 161, 168 (7th Cir. 1985) (state action
present when deputy served warrant); Harris v. City of Roseburg,
664 F.2d 1121, 1127 (9th Cir. 1981) (police intervention and
assistance during repossession constituted state action).
Many of the violations committed by FRAPH involved the
participation of the Haitian policy and the armed forces. See Ex.
E. On one occasion, witnesses reported that two known FRAPH
members, a soldier, and two police auxiliaries abducted Dady
Pierre, an Aristide sympathizer. Pierre was subsequently
discovered dead, his face disfigured with a machete. See Fuller
Decl. 17, 20.
29.Courts have found a symbiotic relationship where a close
financial relationship exists between the private party and the
state. Jatoi v. Hurst-Eutess-Bedford Hosp. Auth., 807 F.2d 1214,
1221-22, modified on denial of reh'g, 819 F.2d 545 (5th Cir.
1987),cert. denied, 484 U.S. 1010 (1988) ("The private defendants
cannot receive public funds, utilize public facilities, and serve
a public purpose, yet insist that their private status forestalls
any correction of a violation . . . .").
30.In addition, the 1987 Haitian Constitution requires the
dissolution of any armed corps besides the army and the police.
O.A.S. Report 1994 at 30. Nevertheless, the Haitian armed forces
and Cedras' de facto government acquiesced in FRAPH's illegal
activities. Id. at 161. The failure to stop FRAPH's unauthorized
use of violence is tantamount to an implicit conspiracy to commit
these brutal acts. See Cooper v. Molko, 512 F. Supp. 563, 568
(N.D. Cal. 1981) (conspiracies between states and private parties
may occur via implicit agreements).
31.See also Textile Workers Union v. Lincoln Mills of Alabama,
353 U.S. 448, 451 (1957); In re "Agent Oranae" Product Liab.
Litig., 635 F.2d 987, 989 n.4 (2d Cir. 1980), cert. denied, 454
U.S. 1128 (1981) ("A cause of action which is founded on federal
common law 'arises under' the laws of the United States within he
meaning of 1331(a)"); Republic of the Philippines v. Marcos,
806 F.2d 344, 353 (2d Cir. 1986); Nordlicht v. New York Tel. Co.,
799 F.2d 859, 862 (2d Cir. 1986), cert. denied, 47g U.S. 1055
(1987); 13 C. Wright, A. Miller, & B. Cooper, Federal Practice
andProcedure, 3563 at 61-63 (2d ed. 1984).
32.In Kadic, the Second Circuit once again recognized the
possibility of 1331 jurisdiction, but declined to reach the
issue. Slip op. at 28-30.
33.Martinez-Baca, No. 87-2266, slip op. at 4-5 (N.D. Cal. Apr.
11, 1989) (case brought by U.S. citizen, who could not invoke
ATCA jurisdiction, sustained under 1331); Forti, 672 F. Supp.
at 1544; Abebe-Jiri v. Negewo, No. 90-2010 (N.D. Ga. Aug. 20,
1993).
34.That no independently given right of action is necessary to
vindicate federal common law rights is inherent in Illinois v.
Milwaukee, 406 U.S. at 103, and its progeny. As the Supreme Court
noted in Illinois v. Milwaukee, "It is not uncommon for federal
courts to fashion federal law where federal rights are
concerned." Id., quoting Textile Workers Union v. Lincoln Mills,
353 U.S. 448, 457 (1957). "[E]nforceability [of the right] is
established by the existence of an individual right such a cause
would seek to vindicate." Steven M. Schneebaum, The
Enforceability of Customary Norms of Public International Law, 8
Brooklyn J. Int'1 L. 289, 305(1982).
35.See Xuncax v. Gramajo, 886 F. Supp. 162; Paul v. Avril, 901
F. Supp. 330 (final judgment); Todd v. Panjaitan, 1994 WL 827111
(D. Mass. 1994); Martinez-Baca v. Suarez-Mason, No. 87-2057 (N.D.
Cal. Apr. 22, 1988).
The unpublished decisions in Todd and Martinez-Baca are
reproduced in Ex. I.
36.Richard B. Lillich, Damages for Gross Violations of
International Human Riqhts Awarded by U.S. Courts, 15 Hum. Rts.
Q. 207, 210 (1993).
37.In Trajano v. Marcos, No. 86-0207 (D. Haw. May 19, 1991)
(final judgment awarding damages), where Philippine law allowed
punitive damages, the court applied that law. In all other cases,
courts have applied a federal common law/international law
measure of punitive damages, often without even referring to
local law. The judgments in Quiros de Rapaport and Forti, for
example, awarded punitive damages despite the lack of provisions
for punitive damages under Argentine law. The judgment in
Abebe-Jiri awarded punitive damages without reference to
Ethiopian law. Siderman, the only case where punitive damages
were not awarded, involved an action under the Foreign Sovereign
Immunities Act against an internationally recognized foreign
government. These judgments are summarized and reproduced in Ex.
I.
38.The unpublished decisions in Forti and Todd are reproduced in
Ex. I, as is a summary of all damage awards in prior Alien Tort
Claims Act cases.
39.See Garcia-Amador, 2 The Changing Law of International Claims
593-596; Oppenheim, International Law 354-55 (Lauterpacht 8th ed.
1955) (citing Janes' Case, Annual Digest, 1925-26, Case No. 158,
Decision of the Council of the League, Dec. 14, 1925, Off. J. 7
[1926]; I'm Alone Case (Canned v. U.S.), Jan. 5, 1935, 29 A.J.
331 [1935]).
