The Case That
NEWSLETTER, Aug, 2004
Silence, The Case That Changed The Face of Human Rights,
by Richard Alan White
A Review By ACS Member Richard Pierre Claude
This is a book about a landmark international law case written from a participant-observer point of view by an historian who was involved in a human rights tragedy at every stage of its development. The focal point of the book is the famous case of Filártiga v. Pena-Irala [630 F.2d 876, 2d Cir.,1980] which for the first time, imported internationally defined human rights norms into U.S. jurisprudence.
The Filártiga principle, as now understood, stands for the proposition that torture is a tort within the meaning of U.S. law informed by the standards of the Universal Declaration of Human Rights as a component of international customary law. As such, the Alien Tort Claims Act, part of the first judiciary Act of 1789, applies so as to authorize civil law suits by an alien residing in the United States against another alien for torture, recognized as among the most serious of all human rights violations. In consequence, deposed dictators, death squad leaders, rapists and torturers from overseas should expect no safe haven from the reach of civil justice in the United States.
White's book merits inclusion among thought-provoking works of humanistic literature. To clarify why the Filártiga family could the doctrine of "forum non conveniens" and therefor not secure justice in Paraguay, the author's use of dialogue and dramatic action are worth sampling here as typical of his writing style. He explains that once proceedings in Paraguay were shown to be hopeless and after the Filártiga law suit in the United States commenced, President Stroessner sent an emissary to the physician's clinic. The dictator's interlocutor told Dr. Filártiga:
"I have come with an offer of comfort for you and your family. The government is under a lot of pressure and desires to find a solution for your situation. There were six people who killed Joelito, and we are prepared to deliver you their corpses. All of them. We only ask that you drop the suit in the United States, and remain silent."
The more he talked, the more Filártiga wanted to know. Excitedly, he peppered the agent with questions. "Who are these people? How could I be sure they are the ones?"
"Because I was there. I saw."
"Where was Joelito killed? Investigaciones? The Sajonia police station?"
"I can't tell you that."
"Why, were you there?"
"That also I am not at liberty to say. I swear that I did not personally harm your son, but I was one of the first to touch his corpse."
"I want the names. Who else besides Peña? Chief Domingo Galeano? The other police on duty that night in Sajonia?
"I can't tell you that either. But what I can assure you is that this world can be a beautiful place for you and your family. You only must stop everything here and in the United States. And the bodies of the men who killed Joelito will be brought to you. All of them. The death of your son will have been avenged. You can feel at peace."
Is this peace and justice? The sensitivity and humanity that speak to the reader about the hallmarks of justice in Breaking Silence supply a useful reference for the broad study of jurisprudence and philosophy of law because in rare and subtle ways, the book contributes to a narrative understanding of moral and legal complexities.
Breaking Silence bears comparison to Anthony Lewis' Gideon's Trumpet. That is, it reads like a novel, the kind that is difficult to put down because it is well written and slakes the thirst for justice. The torture-murder of a teenaged boy gives the fearsome episode great poignancy and makes clear why the author's use of "fictionalized non-fiction" is such a fortuitous choice of treatment for the breath-taking elements of the Caso Filártiga.
From my standpoint as a human rights educator, Breaking Silence is a
triple winner: a highly readable and gripping dramatic thriller, a true story
by an historian who witnessed the development of the landmark case from its
tragic beginning to triumphant ending, and a book which puts the human into
the study of human rights.
Richard Pierre Claude is the Founding Editor, Human Rights Quarterly and author of Science in the Service of Human Rights winner of the American Political Science Association "2003 Award for Best Book on Human Rights."
Copyright © 2005 by the President and Fellows of Harvard College
Breaking Silence: The Case that Changed the Face of Human Rights. By Richard
Alan White. Washington, D.C.: Georgetown University Press, 2004. Pp. 300. $26.95,
Though many human rights attorneys know the outcome of Filartiga v. Pena-Irala—the precedent-setting legal case that paved the way for enforcing international human rights in U.S. courts—few may be aware of its genesis. The story of this tragic case began in March 1976 when seventeen-year-old Joelito Filartiga was tortured and killed under official state orders by a police inspector named Americo Norberto Pena-Irala. Breaking Silence is a dramatic chronicle of the Filartiga family’s journey to find justice, which ultimately led to the arrest and trial of Pena in New York and a $10 million damages award. Author Richard Alan White provides this account from his intimate perspective as a longtime family friend who returned to Paraguay to travel with the Filartigas on their pursuit for justice.
A death such as Joelito’s was not unusual under the Paraguayan military dictatorship of General Alfredo Stroessner, who routinely used mass arrests, torture, and extrajudicial executions as tools of political repression. Joelito’s father, Joel Filartiga, was an educated doctor from Paraguay’s aristocracy who had devoted his life to running a clinic for the poor in the rural Ybycui village. In another country his work may have been deemed an inspiration, but in Paraguay his sympathies for the impoverished were quickly targeted by the right-wing government as evidence of communist subversion. Joelito’s torture and death were part of a state kidnapping meant to intimidate his influential father.
Under Stroessner’s reign of terror, it was the unwavering refusal of the Filartiga family quietly to bury the truth of Joelito’s murder that distinguishes this story from countless unknown others. With the attention to documentation that underpins his historian’s training, White traces the story from the Filartigas’ futile struggle to bring the perpetrator to justice in Paraguay, to the redress that they finally found in U.S. courts by relying on an almost forgotten statute enacted in 1789.
This statute, the Alien Tort Claims Act (“ATCA”), allows certain civil suits arising in tort to be heard in U.S. district courts, even if both the plaintiff and defendant are non-American and the action in question occurred abroad. In the Filartiga case, the Second Circuit Court of Appeals was the first appellate court to rule that violations of internationally recognized human rights law, such as the state-sanctioned torture, constitute torts that fall within the meaning of ATCA. Since then, the Filartiga precedent has enabled foreign human rights victims to force their tormentors—their identities ranging from deposed dictators to rapists to multinational companies—to defend their actions in U.S. courts.
Breaking Silence is not only a gripping personal story, but also a powerful counterargument to critics who say that U.S. courts are an improper forum for adjudicating crimes perpetrated in other countries. White illustrates through
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the Filartiga case how U.S. courts may, in certain cases, be the victim’s sole hope for redress. Since Pena received Stroessner’s full protection, a fair trial in Paraguay was impossible. After being beaten by state agents, Pena’s relative Hugo Duarte testified to killing Joelito in a concocted crime-of-passion story. Witnesses sympathetic to the Filartigas mysteriously disappeared. The coroner’s reports omitted any reference to the electric shock and beating marks found on Joelito’s body. Outside the courtroom Joelito’s supporters became political targets. The Filartigas’ attorney was disbarred for filing detrimental motions against the government. The family received frequent death threats, and mother Nidia and daughter Dolly were imprisoned in the police’s attempt to intimidate the family into dropping their suit.
Human rights practitioners will also find the book to be a fascinating case study of advocacy in practice. As an active participant in the international movement to support the Filartigas, White shares his insights into the relationships, strategies, and even mistakes of the advocacy community—traced from Amnesty International’s first campaign to the final verdict won by attorneys at the Center for Constitutional Rights.
White’s unique access to the plaintiffs enables him to portray in rich detail the institutional and personal politics that shaped the legal strategies and arguments of the case as it progressed through the U.S. courts. The reader may desire, amidst White’s colorful retelling of the plaintiff’s position, an equally detailed account of the defendant’s perspective. The meticulous chronicle of the complicated context of the case not only underscores the Filartigas’ difficult journey, but also provides what may be one of the book’s most important legal insights: human rights law should be understood in relation to the process involved as much as it is understood in relation to the outcome.
White himself warns that “[a]mong activists it is not uncommon to get lost in the cause, fighting for humanity while overlooking human beings.” His account of the Filartigas’ unusual path to justice is a valuable addition to human rights literature, reminding the reader, in riveting style, that the urgency of recognizing human rights lies not as idealized abstraction, but as a lived reality for individuals.
Over thirty years after Joelito’s murder, Breaking Silence arrives at a highly relevant time. As recently as 2004, the Supreme Court has sought to limit substantially the application of the Filartiga principle and the reach of ATCA in Sosa v. Alverez-Machain. Perhaps there is no better occasion to revisit the Filartigas’ story.
Human Rights and Human Welfare
The Promise and Limitations of International Human Rights Activism
By Rebecca Evans
International human rights doctrine and international law have increasingly
come to recognize
that the international community has an interest in and responsibility to uphold fundamental human
rights. This recognition means that states have come under increasing scrutiny for the way in which
they treat their own citizens. Although some scholars continue to maintain that universal human
rights do not challenge national sovereignty or state control (for example, see Krasner 2001), the
immunity that state officials enjoyed from external interference in their domestic affairs has eroded
quite significantly over the past fifteen years. As Andrea Bianchi notes, “while state sovereignty
remains one of the pillars on which the system hinges, its actual content has undergone a gradual
process of erosion. Matters which once indisputably belonged to the domestic jurisdiction of states,
such as the way a state treats persons under its jurisdiction, nowadays may be the object of
international scrutiny” (Bianchi 1999: 117). While realists dismiss such scrutiny as meaningless and
ineffectual, they fail to recognize that casting a spotlight on violations of internationally recognized
human rights is the first step in holding violators accountable for their actions. Although it
ultimately remains the responsibility of national governments to make respect for human rights
effective, the international human rights community wields significant power in its ability to “name
and shame” violators. This “power to embarrass” is significant because “no government wishes to
suffer the exposure of systematic human rights violations by agencies under its authority or its
failure to fulfill obligations to which it has agreed” (Pinheiro 1998: 42).
Click here to read more of Rebecca Evan's review
Selected for Public and Secondary School Libraries - Outstanding Titles
The following titles received ratings of "Outstanding" (O) by members of the 2005 University Press Books Committee. "Outstanding" titles are defined as having exceptional editorial content and subject matter. They are essential editions to most library collections.
White, Richard Alan
Breaking Silence: The Case That Changed the Face of Human Rights
Georgetown University Press
"Thorough research combined with friendship and the need for justice come together to make this a very readable, heart-wrenching story of a landmark decision that fundamentally changed the fight for human rights. This book puts a personal face on our global fight for human rights."
--Therese M. Feicht (PLA)
On behalf of Georgetown University Press it is my honor to announce
that Breaking Silence has just received an "Outstanding Book" rating from
the American Association of University Presses Books Committee.
To put this award in context: Of the 6,000 books published by
university presses during the past year, only 86 received an "Outstanding Book"
rating. Even more, Breaking Silence was one of only six political
science books--only six!--that qualified for this honor. That's a
remarkable achievement, and we are all very proud to have your work on
All best wishes,
Richard Brown, Ph.D.
Georgetown University Press
3240 Prospect St., NW
Washington, DC 20007