Ahimsa vs Nandasena Gotabaya and the Joelito Filártiga case (Sunday Observer’s Original Title)
According to news reports, former Defence Secretary and Presidential aspirant Gotabaya Rajapaksa is facing two civil suits in separate cases linked to events in Sri Lanka during his term in office in the US federal district court in California.
One is a suit filed by Ahimsa Wickrematunge who is seeking compensatory and punitive damages from the defendant ‘for instigating and authorising the extrajudicial killing’ of her father in jury trial.
Her litigation is supported by the California-based Centre for Justice and Accountability.
Prof of Law G.L.Peiris while confirming that a law suit has been filed in the State of California by Ahimsa Wickrematunge has queried whether the daughter of the slain Sunday Leader editor Lasantha Wickrematunge was using or abusing the US legal system for what he called collateral purposes.
Prof. Peiris has expressed his dismay over the action taken a decade after the assassination though, since Gotabaya Rajapaksa almost every year visited the US in the past 10 years.
(There is a Tamil colloquial slang “Velaiku Akathu” (Not useful to do work) and this quite true of the so-called professor glp -TW)
This exploration of the US legal process relied on by Ahimsa Wickrematunge is prompted by the skepticism expressed by our ‘Good Prof of Law’ who has taught law but never practised before a judge and a jury. The good professor cannot be ignored. The skeptical legal tradition runs from Thrasymachus in Plato’s Republic) to Hobbes and Bentham and even beyond. The law also has an invisible entity called ‘justice’. What follows is a simple ‘voyage of discovery’ by a layman relying on simple commonsense as the only compass for direction.
Why now? In 2009, Gotabaya Rajapaksa did not know much about Lasantha Wickrematunge. Hence his rhetorical inquiry ‘who is Lasantha?’
In 2019 he is better informed.He told a Sinhala weekly “If Lasantha’s daughter wants to know who his murderers are,” Rajapaksa said, “ask her to come to Sri Lanka and meet me. I will tell her what happened.”
Now, Ahimsa wants him to tell her what he knows in the US District Court in California. That seems to make eminent sense.
Here is my take about seeking justice in San Francisco and serving summons in the parking lot of Trader Joe’s.
Victor Jara was a celebrated singer, theatre director and a university professor in Chile. His lyrical genius and haunting music about poverty and injustice earned him the sobriquet, “Bob Dylan of Latin America.”
Victor Jara was a sympathiser of the socialist President of Chile – Salvador Allende who was ousted in 1973 in CIA backed military coup led by Augusto Pinochet who promised Chileans that he will build a new Chile with character, discipline, progress and national honour.
He was detained along with his students, fellow academics in a Chilean soccer stadium that has since been named after him. According to detainees who survived, Victor Jara’s hands were smashed with the butt of a gun and badly beaten up. When his body was found three days after his disappearance near a cemetery, it was found riddled with 44 bullet holes.
His British-born ballerina wife Joan and his daughter Amanda, fought a long-running campaign for justice in his case and had his body exhumed in 2009 for a full autopsy.
Forty three years later, in 2016, a civil court jury in Florida found a former military officer, retired army lieutenant Pedro Barrientos, liable for torturing and killing Jara. Barrientos, who was living in Florida was ordered to pay $28 million in damages to Jara’s family.
The case against Barrientos was filed by the US-based Center for Justice and Accountability on behalf of Jara’s widow, his daughter and step-daughter.
It is the same human rights advocacy group that supports Ahimsa Wickrematunge in her plea for a jury trial and justice for her father slain in year 2009 at Attidiya, Sri Lanka. It seems Ahimsa’s quest for closure is 30 years ahead of Amanda Jara, the daughter of Latin American Bob Dylan who found it in an Orlando courtroom in Florida.
A federal jury in Orlando concluded that a former Chilean army officer who had emigrated to the United States and worked as a short-order cook was liable for the torture and extrajudicial killing of Mr. Jara at the Chilean sports stadium in 1973.
The former officer, Pedro Pablo Barrientos, 67 was a naturalised American citizen and resident of Deltona, Florida.
He was named as the respondent and defendant in a civil suit brought under an American law that is known as the Alien Tort Statute.
Barrientos was described in court as having bragged about shooting Jara. Mrs. Jara now aged 88, provided testimony on how her life was ‘cut in two’ after the coup and the violent death of her husband.
“It was the end of my first life, because I lost so much on that day,” she said. “I lost my job and my profession. My children left their school, their friends, their home and their country. I was never able to remarry. I had been very much in love with Víctor.”
Barrientos was taken to court by the New York law firm Chadbourne & Parke with assistance from the Center for Justice and Accountability. They filed a civil lawsuit against Barrientos in 2013 on behalf of the Jara family.
A former soldier, José Navarrete, testified that Barrientos boasted about having shot Jara twice in the head. “He used to show his pistol and say “I killed Víctor Jara with this” he told the court in a videotaped deposition. Navarrete said he had not come forward with his testimony before for fear of retaliation.
Barrientos told court that he went to the United States to earn money for his children’s education, not to evade possible prosecution. He claimed he was never at the Chile Stadium and denied knowing who Víctor Jara was before 2009, despite his widespread popularity in Chile.
Several former soldiers testified through videotaped depositions, that they were part of the section from the Tejas Verdes regiment under the direct orders of Barrientos at the Stadium.
Two former prisoners gave details of the violence, killings and suicides that took place in the stadium and how Jara was singled out and assaulted even as he was entering the Stadium.
“That night Víctor was exhibited as a trophy to other officers. They also beat him,” recalled Boris Navia, a former detainee. He said one of them crushed his hand and beat his arm, saying “you’ll never be able to play the guitar again.”
Jara’s daughter Manuela described the litigation as being “emotionally intense.” “They concentrated all of the pain, sadness and anger Chile has gone through, and specifically the horrors at the Chile Stadium. The culture of lies, cover-ups and bullying were pulverized by the weight of the truth in this courtroom.”
It all started with young Joelito Filártiga killed by the Paraguayan police and the ingenuity of eminent jurist Peter Weiss. Weiss reached America as a refugee from Nazi-occupied Austria in 1941. He has involved himself with every major human rights issue in the 20th Century and the two decades of the 21st during his lifetime. They include dismantling of Nazi business cartels to the ‘My Lai’ Massacre during the Vietnam War seeking accountability under the principle of ‘universal jurisdiction’.
In 1977, he sued Henry Kissinger for the State Department’s complicity in the detention and death of American journalist Charles Horman during the 1973 Chilean coup. Peter Weiss was co-counsel in a legal action filed in New York by the father and sister of Joelito Filártiga murdered in distant Paraguay.
Joelito Filártiga was a lively lad of 17 years when he was abducted and tortured to death by Americo Norberto Peña-Irala, an inspector-general in the Paraguayan police on March 29, 1976.
Later on, that day the police showed his body to his sister Dolly Filartiga who was told “Here you have what you have been looking for so long and what you deserve. Now shut up.”
The Filartigas family believes that young Joelito was tortured and killed in retaliation for his physician father’s political activities and beliefs.
Dr. Filartiga commenced a criminal action in the Paraguayan courts against Pena and the police for the murder of his son. The hapless attorney – blatantly an unpatriotic Paraguayan who had the temerity to appear for Dr.Filartiga was arrested. At police headquarters, he was shackled to a wall and Pena threatened him with death. The attorney was later disbarred.
Two years later, by a quirk of fate Dolly Filartiga who was in the United States as an asylum petitioner discovered that Peña-Irala was also living in New York.
In 1978, the Centre for Constitutional Rights in New York instituted a ‘Wrongful death action’ – the civil equivalent of murder against Peña-Irala, on behalf of Joelito’s sister Dolly and her father Dr. Joel Filártiga who was living in Paraguay.
The legal action was based on an ancient law enacted by the first Congress of the United Sates called the Alien Tort Statute that gave US district courts the “jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”
The action was dismissed by the District Court but was reversed by the Court of Appeal of the second circuit which is the second highest court after the US Supreme Court. Human Rights lawyers and activists regard it as landmark in US law and subsequent litigation under the Alien Tort Act have radically changed human rights law as practised, both in the US and in general international law.
The US Court of Appeal held that a Paraguayan plaintiff can prevail against a Paraguayan defendant on the basis of events that occurred entirely in Paraguay. That was not the end of the story. US multinationals conniving with foreign autocrats saw it as an entryway for ‘do-gooding’ rights champions to interfere in some of their overseas operations that were not quite above board. Even the US government at the behest of corporate interests has intervened in cases filed under the Alien Torts Statute and the Joelito Filártiga precedent to reject them.
However, the US Supreme Court has upheld the Act with the proviso that “courts should require any claims based on the present day law of nations to rest on the international character accepted by the civilized world and defined with the specificity comparable to the features of the 18th century paradigms we have recognized.”
The concluding paragraph of the pathbreaking judgement of the US Court of Appeal in the Joelito Filártiga case has a timeless appeal to what the US Supreme Court later described as the ‘Civilized World’.
“In the twentieth century the international community has come to recognize the common danger posed by the flagrant disregard of basic human rights and particularly, the right to be free of torture. Spurred first by the Great War, and then the Second, civilized nations have banded together to prescribe acceptable norms of international behaviour. From the ashes of the Second World War arose the United Nations Organization, amid hopes that an era of peace and cooperation had at last begun. Though many of these aspirations have remained elusive goals, that circumstance cannot diminish the true progress that has been made. In the modern age, humanitarian and practical considerations have combined to lead the nations of the world to recognize that respect for fundamental human rights is in their individual and collective interest. Among the rights universally proclaimed by all nations, as we have noted, is the right to be free of physical torture. Indeed, for purposes of civil liability, the torturer has become like the pirate and slave trader before him hostishumani generis, an enemy of all mankind. Our holding today, giving effect to a jurisdictional provision enacted by our First Congress, is a small but important step in the fulfillment of the ageless dream to free all people from brutal violence.”
When the Aliens Tort Statute was enacted in 1789, the international order was contending with slavery, piracy, duelling ambassadors and aggrieved potentates. In the 21st Century international law has expanded in many directions including the vital sphere of human rights. The Universal Declaration of Human Rights is recognized by US courts as a treaty and a covenant subscribed to by the US. Under US law the Alien Tort Statute gives survivors of flagrant human rights abuses the right to sue the perpetrators in the United States.
The Torture Victim Protection Act (TVPA), passed in 1991 and signed into law by President George H.W. Bush in 1992, allows U.S. citizens and non-citizens to bring claims for torture and extrajudicial killing committed in foreign countries.
Since the seminal ruling on the murder and mutilation of Joelito Filártiga many cases have been filed against individual perpetrators found in the United States. These are filed by survivors of human rights abuses who have lost faith in the justice systems in their home countries. The litigation is a complex process that needs much preparatory work.
To bring a lawsuit against an individual, that person must be directly or indirectly responsible for the human rights violations. That needs evidence that will convince the court to entertain the case and demonstrable facts that will convince a jury. The alleged perpetrator must be personally served with the lawsuit while in the United States. In other words, he or she must live in or visit the United States.