Suing for Torture

• Author: Beth Stephens
• Pages: 239-254

239

The three young women told thei r lawyers a horrify ing tale. As teenagers i n Ethi-

opia, they had been bruta lly tortured by Kelbessa Negewo, one of the mi litary

officials then ruling their country. Each had managed w ith diff iculty to escape

Ethiopia, one wal king days t hrough the deser t. Making t heir way to the United

States or Canada as r efugees, they strug gled to put the past behind them. But one

day in 990, Edgegayehu Taye turned a corner at the Atlanta hotel where she

worked and found herself face to f ace with Negewo, recently hired as a bell hop.

The plight of Taye, Hirute Abebe-Ji ra, and Elizabeth Demi ssie is not unique.

Millions of people around the world are survivors of tort ure, with an estimated

400,0 00 livin g in the Unit ed States alon e.2 In addition, hundred s, if not thousands,

of tortu rers live in th is country.3 The th ree women’s story is unusual i n that they

found the perpet rator of their abuses in t he community i n which one of them

lived. And, having located him, they faced a choice not open to most survivors:

fili ng a lawsuit against the ma n who had tortured them.

For their lawyers, the l itigation process was similar i n many ways to other

international litigation. Issues of personal jurisdiction, choice of forum, choice of

law, evidence gathering, a nd discovery in huma n rights cases often resemble

. See Abebe-Jira v. Negewo, 72 F.3d 844, 845– 46 (th Cir. 996). For a full hi story of the

lawsuit and its i mpact on the plainti ffs and defendant, see A ndrew Rice, The Lo ng Interro-

gation, N.Y. T, June 4, 2006 , available at http://www.nytimes.com/2006/06/04

/magazine/04torturer.html?scp=&sq=abebe%20&%20negewo&st=cse.

2. A  I’ USA, U  S  A : A S H  T  7

(2002), www.cwsl.edu/content/aceves/safe_haven_repor t.pdf.

3. Id. at 23–25.

CHAPTER 16

Suing for Torture

Beth Stephens

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240 CHAPTER 6

those arising in international commercial or personal injury cases. The basic

principles of proof and sources of law are those studied i n law school and apply

equally to inter national busi ness or tort cases. Ot her legal issues, however, are

more unusual. International huma n rights litigation is fra med by a handfu l of

narrow statutes with quirk s and complications st ill bein g worked out by the

courts and with provisions that a re the subject of heated lobbying c ampaigns

and revision by Cong ress. The executive branch has inter vened in several cases,

with its views of the l itigation and the underlying stat utes changi ng with suc-

ceeding administrations.

Just as stri king ar e the diff iculties su rrounding representation of a sur vivor

of torture in a lawsuit fraught w ith uncertai nties. How will t he survivor’s trau-

matic experiences a ffect the lawyer- client relationsh ip? Is litigation the best

option? How can the lawyer assist the client i n making that decision? A lthough

many lawyers repres ent injured, deeply aggrieved cl ients, most victims of human

rights violations face additional trauma caused by the fact that their own govern-

ment bears respon sibility for the intent ional cruelty in flicted on them. A s a result,

the courts of thei r home country are gener ally closed to them, a nd most have

been forced to flee t heir homes to seek safety and justice i n a foreign land.

This chapter offers a road map throug h the legal land scape, with warnings

about the political forces t hat may sweep through a ca se and an overview of the

diff icult issues that often face those who represent the survivors of traumatic

human rights abu ses.

HTHE SHIFTING LEGAL LANDSCAPE

Most human right s litigation is based upon one of a small group of feder al stat-

utes whose scope has change d dramatically over the past th ree decades. Many of

the underlying legal issues are not yet resolved. A ll three branches of govern-

ment have modified t heir views of the legal clai ms, creating a volatile lega l struc-

ture. Congre ss has expanded the range of act ionable claims and the mecha nisms

for enforcement of judgments. Under t he leadership of dif ferent presidents, the

executive branch ha s produced widely divergent posit ions on the proper inter-

pretation of the stat utory framework . The courts authorized groundbreakin g

applications of the u nderlying statutes, but the Supreme Court has nar rowed

their reach, a nd the scope of the statutes is stil l in flux.

Step number one for a litigator contempl ating a human rights c ase is to deter-

mine whether the f acts fit within one of t hese federal statutes: the Al ien Tort Stat-

ute, the Torture Victim Protection Act, the “state sponsors of terrorism”

exception to the Foreign Sovereig n Immunities Act, or the A nti-Terrorism Act.4 If

none of the federal stat utes apply, it may be possible to file state law tort claims

based on the same fact s, an option that is discuss ed on pages 250–25.

4. The four st atutes are cited and di scussed in the sect ions that follow. For a detailed dis -

cussion of each, s ee B S  ., I  H  R L  

U.S. C  (2d ed. 200 8).

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