For new immigrants, America is the face of liberty, palladium of justice and the embodiment of the ideal of government under law, not under men. In this deliberative democracy, where the nation is perpetually arguing with its own conscience, debates spawn statutes that afford redress to victims who have suffered under despotic states around the world. The Torture Victims Protection Act (TVPA) is one such statute enacted in 1992 that enables U.S. citizens and non-citizens, whose relatives have suffered torture or extra-judicial killings, to assert a civil claim for damages. The recent legal action in the US by three Tamil plaintiffs in the US Federal Court against Sri Lanka’s President Rajapakse is based on the provisions in the TVPA.
pdf: Piercing the Shield of Sovereignty
Material for this feature is drawn from a student paper from Yale Law School which surveys the conceptual and legal background necessary to corner despotic officials hiding behind the shield of sovereignty.
The Torture Act, 18 U.S.C. § 2340A, provides a cause of action against anyone who commits or attempts to commit torture. This includes utilizing command responsibility to hold superior officials accountable: “The TVPA made it clear that commanders could be liable for the acts of perpetrators subordinate to them.”
The TVPA enables “an individual who has been subjected to torture to sue for damages and authorizes a suit for extrajudicial execution by either the legal representative of the person killed or by ‘any person who may be a claimant in an action for wrongful death.’”
As of late 2006, approximately 45 reported decisions included TVPA claims, of which about a dozen resulted in final judgments awarding damages, with another dozen pending in trial or appellate courts.
Command responsibility is an integral component of holding high-ranking Sri Lankan officials accountable, and Sri Lanka’s President Mahinda Rajapakse and Defense Minister Gothabaya Rajapaksa.
The TVPA requires the exhaustion of local remedies that are “adequate and available”; however the TVPA’s Senate Report noted that this requirement should be applied liberally and that exhaustion is not required when the “local remedies were ineffective, unobtainable, unduly prolonged, inadequate, or obviously futile.”
This futility exception for exhausting local remedies should be invoked for Sri Lanka; Sri Lanka’s Lessons Learnt and Reconciliation Commission is widely considered to be an instrument for official whitewashing over the atrocities committed in the final stages of war. Thus Sri Lanka’s domestic remedy is feckless and attempting to “exhaust” it would be futile, inadequate and ineffective.
The TVPA was not intended to replace the Alien Tort Statute or repeal it by implication: “The TVPA’s legislative history demonstrates that it does not supersede the ATS, which continued to have ‘other important uses.’”
The TVPA is a carefully constructed statute authorizing universal jurisdiction for U.S. courts. “The TVPA constitutes a modern expression of congressional support for the exercise of extraterritorial jurisdiction over certain egregious human rights violations.” It was first used successfully in the criminal prosecution of Chuckie Taylor, for acts of torture and extrajudicial killings committed in Liberia. Taylor’s prosecution withstood challenges to the constitutionality and extraterritoriality of the Torture Act.
Taylor moved to dismiss his indictment for torture and extrajudicial killings on the grounds that the Torture Act is unconstitutional. The district court and the Court of Appeals of the Eleventh Circuit held it was “well within Congress’s power under the Necessary and Proper Clause to criminalize both torture, as defined by the Torture Act, and conspiracy to commit torture."
Regarding the Act’s extraterritorial application, the Appellate Court held that the Torture Act “evinces an unmistakable congressional intent to apply the statute extraterritorially."
The Appellate Court explored the case law surrounding the extraterritorial application of U.S. law “[s]ince an early date, it has been recognized that Congress may attach extraterritorial effect to its penal enactments,” and that a nation’s “power to secure itself from injury may certainly be exercised beyond the limits of its territory.”
The Court then stated, citing Nieman v. Dryclean U.S.A. Franchise Co., “It is a longstanding principle of American law that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States…. The presumption against extraterritoriality can be overcome only by clear expression of Congress’ intention to extend the reach of the relevant Act beyond those places where the United States has sovereignty or has some measure of legislative control.”
Since the Torture Act explicitly prohibits acts and attempts of torture “outside the United States," the Court held the Torture Act’s extraterritorial application to be legitimate. Thus, it furnishes sturdy grounds for holding Sri Lankan officials accountable for torture.
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