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FILARTIGA V.

PENA-IRALA, COURT OF APPEALS, SECOND CIRCUIT, 30 JUNE 1980


OVERVIEW:
On April 6, 1979, the suit was brought by an alien residing in the United States charging a former
official of Paraguay then isiting the United States! "he complaint alleged torture of the plaintiff#s brother
leading to his death! "he court of appeals ruled that deliberate torture perpetrated by a person inested
with official authority was a iolation of customary law supporting the $urisdiction of the district courts oer
%a ciil action by an alien for a tort only, committed in iolation of the law of nations!% "he court further
declared that %indeed, for purposes of ciil liability, the torturer has become li&e the pirate and slae trader
before him hostis humani generis, an enemy of all man&ind%! "he court found that torture perpetrated by a
person inested with official authority iolates uniersally accepted human rights norms, regardless of the
nationality of the parties!
!
FACTS OF THE CASE:
"he 'ilartiga are citi(ens of the )epublc of Paraguay! "hey alleged that their 17year old son
*oelito was &idnapped and tortured to death by +orberto Pena,-rala in Paraguay! 'il.rtiga claims this was
done in retaliation for his father#s political actiities and beliefs! 'il.rtiga brought a criminal case in
Paraguayan court, but his attorney was arrested , threatened with death, and supposedly disbarred
without $ust cause! 'our years later, another man confessed to the murder, claiming he found *oelito and
his wife together, and said the crime was one of passion, but he was neer conicted, and also the
eidence showed that *oelito#s death %was the result of professional methods of torture!%
-n 197/, 0olly 'il.rtiga came to the US and applied for political asylum! 1hile Pe2a also entered
the United States under a isitor3s isa but remained in the US beyond the term of their isas! 0olly
learned of Pena and reported it to the -mmigration and +aturali(ation Serice, Pe2a then was arrested for
staying past the e4piration of his isa! 1hen Pe2a was ta&en to the 5roo&lyn +ay 6ard pending
deportation, 0olly lodged a ciil complaint in U!S! courts for *oelito#s wrongful death by torture!
"he 'ilartiga argued that Pe2a#s actions had iolated wrongful death statutes, the United +ations
7harter, the Uniersal 0eclaration of 8uman )ights, the American 0eclaration of the )ights and 0uties of
9an, and other customary international law!
Pe2a claimed the U!S! courts had $urisdiction to hear the case under the Alien "ort Statute, which
grants district courts original $urisdiction to hear tort claims brought by an alien that hae been %committed
in iolation of the law of nations or a treaty of the United States%!
Although the district court initially stayed Pe2a3s deportation, it ultimately granted Pe2a3s motion
to dismiss the complaint and allowed his return to Paraguay, ruling that, although the proscription of
torture had become a norm of customary international law, the court was bound to follow appellate
precedents which narrowly limited the function of international law only to relations between states!
ISSUES:
1hether act of torture is part of international concern, thus, under the customary international
law:
1hether a iolation of the law of nations arises only when there has been ; a iolation by one or
more indiiduals of those standards, rules or customs if <a= affecting the relationship between
states or between an indiidual and a foreign state and <b= used by those states for their common
good and>or in dealing per se?
THE RULING OF THE COURT:
Fir! I"#
"he 7ourt ruled that in light of the uniersal condemnation of torture in numerous international
agreements, the renunciation of torture as an instrument of official policy by irtually all of the
nations of the world <in principle if not in practice= we find that an act of torture committed by a
state official against one held in detention iolated established norms of the international law of
human rights, hence the law of the nations!
Also, the Supreme 7ourt enumerated the appropriate sources of international law! "he law of
nations ;may be ascertained by consulting the wor&s of $urists, writing professedly on public law@
or by the general usage and practice of nations@ or by $udicial decisions recogni(ing and enforcing
that law!?
"he 7ourt emphasi(ed the ruling in The Paquete 8abana which reaffirmed that where there is no
treaty, and no controlling e4ecutie or legislatie act or $udicial decision, resort must be had to the
customs and usages of ciili(ed nations@ and as eidenced of these, to the wor&s of $urists and
commentators, who by years of labor, research and e4perienced, hae made themseles
peculiarly well acAuainted with the sub$ects of which they treat! Such wor&s are resorted to by
$udicial tribunals, not for the speculations of their authors concerning what the law ought to be, but
for trustworthy eidence of what the law really is!
"he 7ourt ruled that although there is no uniersal agreement as to the precise e4tent of the
human rights and fundamental freedoms guaranteed to all by the charter, there is at present no
dissent from the iew that the guaranties include, at a bare minimum, the right to be free from
torture! "his prohibition has become part of customary international law, as eidenced and
defined by the Uniersal 0eclaration of 8uman )ights!
Bi&ewise, the 7ourt haing e4amined the sources from which customary international law is
deried the usage of nations, $udicial opinion and the wor&s of $urists, the 7ourt concluded that
official torture is now prohibited by the law of nations! "he prohibition is clear and unambiguous,
and admits of no distinction between treatment of aliens and citi(ens!
S#$%&' I"#
"he 7ourt stated ;the sphere of domestic $urisdiction is not an irreducible sphere of rights which
are somehow inherent, natural, or fundamental! -t does not create an impenetrable barrier to the
deelopment of international law! 9atters of domestic $urisdiction are not those which are
unregulated by international law, but those which are left by international law for regulation by
States! "here are, therefore, no matters which are domestic by their ;nature?! All are susceptible
of international regulation and may become the sub$ects of new rules of customary law of treaty
obligations!?

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