|
Description
Since 1993, more than 400 women have been murdered in Ciudad Judrez, Mexico. Few, if any of these crimes have been solved, largely because local Mexican officials have failed to adequately investigate them. This Article argues that femicide victims could hold those officials civilly liable as third parties for these femicides in U.S. federal courts under the Alien Tort Statute (ATS). Although aiding and abetting liability is the most common form of third-party liability sought in ATS cases, several high profile cases have challenged whether it should exist under the ATS. The author agrees with many courts and scholars that aiding and abetting liability should be sustained. However, the author argues that none of the previously proposed standards for aiding and abetting would reach the Mexican officials. Instead, the author proposes "acquiescence to torture" as an innovative form of third-party liability. Acquiescence to torture, as it has been defined in U.S. non-refoulement cases, would broaden the scope of the ATS to allow a suit against Mexican officials for their failure to adequately prevent or investigate the femicides in Ciudad Juarez.
[dagger] William Paul Simmons, assistant Professor of Political Science, Arizona State University. Ph.D., Louisiana State University 1996. This Article is dedicated to Diana Washington Valdez and Lourdes Portillo, courageous and talented women who have been instrumental in calling attention to the femicides in Ciudad Juarez. The author is grateful to Rebecca Coplan and Stacy Nykorchuk for their tireless and invaluable research assistance. Thanks also to Sarah Bennett, Zeenat Hasan, and several classes of students who helped me develop the ideas in this Article while completing problem-based learning assignments. Special thanks to the fine editorial team of the Yale Human Rights & Development Law Journal.
INTRODUCTION
Since 1993, more than 400 women have been murdered in Ciudad Juarez, Mexico. Over 120 of these murders have been deemed sexual homicides. Several high profile national and international reports have placed blame on the local Mexican authorities for failing to exercise due diligence in the investigation, prosecution, and punishment of these crimes and for failing to take reasonable steps to prevent these murders. (101) The "femicides" and the local Mexican government's poor response have been widely publicized internationally by groups in Ciudad Juarez, Mexico, the United States, and other countries through organized protests, petition drives, and other actions. (2) Several family members and NGOs have initiated cases in the Inter-American Commission of Human Rights against the national government of Mexico (3) and these will most likely lead to action by the Commission and, eventually, by the Inter-American Court of Human Rights. However, the Inter-American Commission and Court have both been faulted for their lengthy procedures, and the Commission, especially, has a poor record of state compliance with its decisions. (4) These institutions can make rulings against national governments, but they cannot hold specific individuals in the Mexican government directly accountable. This paper argues that in order to hold local Mexican officials directly accountable for failing to adequately investigate and prevent the femicides, victims of the femicides or their families could sue the officials in U.S. federal courts on a theory of third-party liability under a once obscure American law, the Alien Tort Statute (ATS). (5)
Although the ATS was passed as part of the Federal Judiciary Act of 1789, it was relatively unused and unknown until 1981. Since then, victims of human rights abuses from dozens of countries have used the ATS to bring civil suits in U.S. courts against governmental officials and multinational corporations for a range of abuses. The 2004 Supreme Court case Sosa v. Alvarez-Machain cleared up, for the most part, the most fundamental legal issue in ATS jurisprudence: whether or not the ATS affords new subject-matter jurisdiction. (6) The next major controversy in ATS jurisprudence appears to be whether the ATS allows for third-party liability, (7) especially under theories of aiding and abetting. (8) This issue is particularly contentious because most, if not all, of the high-profile ATS cases against multinational corporations involve theories of third-party liability. The federal courts have divided on this issue. Some have ruled that there is no aiding and abetting liability under the ATS, but most courts have found aiding and abetting liability and other third-party liability under a range of legal theories. (9) Congress recently considered a bill, the Alien Tort Statute Reform Act, (10) that would have greatly reduced or even eliminated third-party liability under the ATS. Several legal scholars have argued for some form of aiding and abetting liability under the ATS, although they differ on the standards that should be used to determine such liability. (11) I argue below that third-party liability, including aiding and abetting, should remain under the ATS, but that none of the proposed standards would reach the actions or inactions of the local Mexican authorities for the Juarez femicides. I then introduce acquiescence to torture, as specified by the Convention Against Torture (CAT), (12) as an alternative form of third-party liability that would reach the local Mexican officials. This theory would comport well with the law of nations as defined by the ATS, and, since it is not a form of secondary liability but rather primary liability for secondary actors, it could survive potential court rulings against aiding and abetting liability under the ATS and might even survive Congressional action intended to restrict third-party liability.
To summarize, acquiescence to torture is important to consider in the ATS context for three reasons. First, if the Supreme Court ultimately holds that the ATS does not extend to aiding and abetting liability, some primary liability for secondary actors would likely still be imposed on those who have acquiesced to torture. Second, if Congress acts to restrict third-party liability under the ATS, it would not necessarily affect primary liability for acquiescence to torture. Finally, a developing body of jurisprudence defines acquiescence to torture to include a state's failure to prevent or investigate abuses. This definition would broaden the scope of the ATS to allow for claims against Mexican officials for their failure to adequately prevent or investigate the femicides in Ciudad Juarez.
The first part of this paper provides an overview of the femicides in Ciudad Juarez, highlighting the actions and inactions of the local Mexican officials. Part II briefly outlines the development of ATS jurisprudence to the present with a special emphasis on the Sosa case. Part III provides an indepth
analysis of the aiding and abetting controversy, focusing on the Doe v. Unocal cases, in which this issue received its most extensive legal hearing, as well as recent post-Sosa cases and scholarly writings advocating various standards for aiding and abetting liability. Part III concludes with the argument that none of the proposed standards for aiding and abetting liability would reach local Mexican officials for the femicides in Juarez. Part IV introduces the "acquiescence" language from the CAT, discusses how various international and national courts have defined this language, and argues that such an interpretation can lead to primary liability of secondary actors under the ATS. A major focus of Part IV is the definition of acquiescence in U.S. non-refoulement cases, which includes the failure to adequately prevent and investigate torture. Part V considers possible objections to the use of acquiescence as a form of third-party liability in ATS cases. The concluding section places my proposals in the context of the progressive development of human rights law, including the evolving jurisprudence on state responsibility for the actions of private actors, particularly in the context of violence against women.
I. THE FEMICIDES IN CIUDAD JUAREZ: ACTIONS AND INACTIONS OF THE MEXICAN GOVERNMENT
Ciudad Juarez is a large, sprawling border town that has experienced rapid growth due to increased cross-border trade, massive migration, and the proliferation of maquiladoras--assembly plants mostly owned by American companies that are attracted to the area by low wages and lax labor and environmental regulations. (13) The greater Juarez/El Paso metropolitan area is also one of the largest transit points for illegal drugs and illegal immigrants into the United States, and over the past decade Juarez has experienced a substantial rise in organized crime and gang activities. (14) Juarez's rapid growth has far outpaced social services, has created large areas of destitution, and has substantially disrupted the traditional social fabric. (15)
Since 1993, over 400 women have been murdered in Juarez (16) and many women have disappeared. (17) Overall, the murder rates for men in Juarez still far exceed those for women. However, the murder rates for women have increased much faster than the murder rates for men in Juarez, and are much higher than in comparable cities. (18) Of the murdered women, approximately 140 were sexually assaulted (19) and a large proportion of these have been labeled "serial killings " (20) because they fit a very specific pattern of rape, mutilation, and killing. Many of the victims were held captive for days and perhaps even months or years, during which they were subjected to brutal torture. (21) Most of the victims were young (approximately eleven to twenty-two years old) (22) and poor. (23) A substantial number (perhaps one-fourth to one-third) worked in the maquiladoras, (24) and many were students. (25) Many of the other murders, labeled situational murders by the Mexican authorities, stem from domestic violence, drug trafficking, gang violence, intra-familial violence, quarrels, etc. Many have claimed that because violence against women appears to be tacitly accepted by the authorities, the impunity for the so-called serial murders has fueled an increase in the situational murders. (26) Both types of murders share similar root causes in gender discrimination (27) and a series of structural factors. (28)
Despite local and international pressure, the murders have continued unabated, and recently have expanded to Chihuahua City, the capital of the state of Chihuahua, approximately 200 miles away, and perhaps to other Mexican cities. (29) A wide range of theories have been advanced regarding the motives of the perpetrators, including violent pornography, the harvesting of body parts, satanic rituals, and some sort of macabre ritual or even sporting event for wealthy young men of the city or drug traffickers. (30) Sorting through these various theories and structural factors is beyond the scope of this paper. Instead, this paper concentrates on the failure of the local authorities to exercise due diligence in the investigation and prevention of the murders.
A. Actions and Inactions of the Mexican Government
For the first ten years or so after the femicides began, the Mexican authorities did little to investigate or prevent them. Typical complaints of victims' families, NGOs, and international organizations included: little investigation especially in missing persons cases, (31) missing evidence from case files, (32) chronic delays in launching investigations into disappeared women, (33) sloppy autopsies, (34) delays in conducting DNA testing, (35) and contamination and confusion of DNA evidence, in particular in the case of the eight bodies found in a cotton field in 2001. (36) Other complaints include: the failure to follow up leads, (37) failure to gather evidence from crime scenes, (38) and failure to seal off crime scenes. (39) Investigations have been irrevocably and inexplicably botched by leaking information to the press, (40) and in numerous cases of sexual assaults there has been no forensic analysis. (41) The Mexican National Human Rights Commission found that "in the 36 cases it reviewed, authorities failed to perform many of the 37 separate procedures required in homicide cases involving sexual assault." (42) In one case, the "the ground was dug up [by the authorities] in the vicinity of the discovery [of the body], apparently to conceal any evidence." (43) Family members have reported returning to crime scenes several months after the initial police investigation and finding clothing and other evidence that the police had not gathered. (44) The failure to adequately investigate the murders and disappearances has led to a local practice called "rastreo," where the families and friends of missing and murdered women join together to comb through the surrounding desert looking for remains and other clues. (45) The authorities have also spurned international efforts, from the FBI and others, to assist in the investigations. (46)
The investigations have also been plagued by claims of cover-ups by government authorities and claims that the police planted or falsified evidence to implicate specific individuals. (47) Several members of the investigative teams have resigned, and they later discussed pressure to plant evidence and even alleged complicity between police and the murderers. (48) Finally the reluctance to transfer cases to the federal level, even after the members of the Mexican Congress urged it, has slowed investigations, especially into allegations of complicity of local authorities in the murders. (49)
The failure to adequately conduct investigations is often linked to the failure to prevent crimes because a culture of impunity is established that perpetuates crimes. (50) Also, the systemic delays in investigating missing persons cases signal a failure to adequately prevent these crimes, especially in several well-known cases where witnesses observed the forcible abduction of women. (51) The Mexican authorities have also failed to take adequate operational steps to prevent the crimes. Since 1998, when the Mexican Human Rights Commission issued its first report on the femicides, several organizations have outlined a series of measures to prevent the murders, but the local authorities have failed to adequately follow up with these recommendations. The Inter-American Commission on Human Rights in 2003 found that the Mexican authorities had failed to adequately follow up on the recommendations of its own human rights commission and that when the Mexican government has acted, it has failed to provide enough attention to the more general problem of violence against women, focusing instead on the so-called "serial killings." (52) The State has also failed to increase its outreach efforts to civil society groups or to conduct a general educational campaign to prevent violence against women. (53) Finally, the authorities have failed to protect those it should know are at risk of harm. (54)
Although not specifically a failure to investigate or prevent the murders, the authorities' treatment of the victims' families clearly evinces their view of these crimes. The authorities have spurned repeated attempts by victims' families to gain information on the progress of investigations. (55) The authorities have even been accused of intimidating or harassing family members (56) and being reluctant to follow up on threats to family members. (57) In addition, families and activists have often faced incrimination from local government officials and business leaders, because the publicity of the crimes and their demands for justice supposedly tarnish the image of the city and reduce investment and tourism. (58) One activist was led to declare "that the governor and his attorney general had 'declared war' on civil organizations instead of declaring war against the criminals." (59)
The Mexican officials have spent a great deal of effort creating alternative discourses that attempt to explain away the murders. They have blamed the victims themselves by creating a discriminatory discourse, in which they claim that the murders could be justified because the victims were prostitutes, because of the victims' manner of dress, or because the victims frequented specific bars or areas of the city. (60) Rosa Linda Fregoso argued that the authorities have attempted to justify or divert attention away from their inadequate investigations by emphasizing the "nonnormative behaviors" of the women and girls, "accusing them of transgressing sexual norms, either of lesbianism or of leading a 'doble vida' (double life)-that is, engaging in respectable work by day and sex work by night - as though nontraditional sexual behavior justified their killings." (61) The Mexican officials also have also attempted to "normalize" the murder statistics by disaggregating the serial and situational murders (62) or by claiming that a large number of the murders had been solved. For example, the Mexican government claimed to the Special Rapporteur of the Inter-American Commission on Human Rights that 179 of the 268 murders had been resolved. (63) However, the government claimed a case was resolved if:
it had enough information upon which to make a presumption as to the motive and culpability of a presumed perpetrator and that the person had been presented before a judge ("consignado"). It did not necessarily signify that a particular individual had been formally charged or tried. It was not clearly explained, however, how indicia not yet sufficient to support formal accusation and prosecution was nonetheless sufficient to make a determination as to motive and to declare the crime "resolved." (64)
The authorities have also blamed the murders on structural factors such as the supposed "social disintegration of victims' families" (65) as if to absolve the criminals of the murders and the authorities of their own failure to adequately investigate and/or prevent these crimes.
The national and international reports on the femicides have all reached very similar conclusions. The Inter-American Commission concluded that "there had been no real commitment to an effective response" and that the official response "has been markedly deficient." (66) Amnesty International concluded that the investigations exhibit "a pattern of intolerable negligence" (67) and that "the pattern of non-compliance with the minimum requirement of the 'due diligence' standard has been so marked that it calls into question whether the authorities have the will and commitment to put an end to the murders and abductions in Chihuahua and the violence against women they exemplify." (68) A comprehensive report drafted in line with Article 8 of the Optional Protocol of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) found "grave and systematic violations" (69) of the Convention and that there had been "systematic violations of women's rights, founded in a culture of violence and discrimination that is based on women's alleged inferiority, a situation that has resulted in impunity." (70)
The Mexican government's commissions have reached similar conclusions. A 1998 report by the Mexican National Human Rights Commission (CNDH) documented a series of inadequacies in the investigation and concluded that the impunity resulting from the local government officials has perpetuated the crimes. (71) A spokesman for the CNDH says that its 2003 report "provides evidence of everything said so far by international and local groups regarding negligence and carelessness in the conduct of the investigations." (72) Guadelupe Morfin, the head of the Commission for the Prevention and Elimination of Violence Against Women in Ciudad Juarez, the official who was charged by President Fox with reviewing the investigation of these murders, concluded that the investigations were a "facade, an apparent cover-up." (73) The CNDH in 2005 concluded that, "because the Mexican State was allowing these crimes to remain in impunity, it was encouraging their persistence." (74)
Many official reports have laid the blame on specific individuals or offices within the Mexican government. The CNDH, based on an analysis of thirty-six murders, called for the "sanctioning of the officials who had failed to comply with their duties under the law." (75) After reviewing 150 case files, a federal Special Prosecutor "concluded that there was probable cause for criminal and administrative investigations into more than 100 Chihuahua state public officials for negligence, omission and other related offences." (76) However, attempts to bring indictments against these officials have been stymied by local courts. (77)
The Mexican government has made some arrests in the cases, and several of the alleged perpetrators were ultimately prosecuted. These included two bus drivers (78) and several members of local gangs. (79) Most of the activists working to end the femicides believe that few, if any, of these men were connected to the crimes, in part because many of those arrested confessed only after being subjected to systematic torture. (80) It is now clear that a secondary human rights abuse has occurred: the torture of a series of "scapegoats" by Mexican authorities. (81) In addition, two of the attorneys working on the case involving the bus drivers were gunned down in nearly identical fashion three years apart. (82) One of the bus drivers, Gustavo Gonzalez Mesa, was found dead under suspicious circumstances in his prison cell (83) while the conviction of the other, Victor Garcia Uribe, was eventually overturned. (84)
In the face of increased local and international pressure, the Mexican authorities made some attempts, often cosmetic, to investigate and prevent the murders, but these investigations have been plagued by little or no institutional follow-up. (85) Mexican President Vicente Fox appointed a special prosecutor to oversee the investigations in 1998, (86) and a Commission for the Prevention and Elimination of Violence against Women in Ciudad Juarez was established in 2003 with human rights activist Guadalupe Morfin in charge. (87) The most promising recent reform was a forty-point action plan, drafted by Special Commissioner Morfin, that attempts to deal with the problem both with specific immediate action steps and from a structural perspective, including prevention of crime, social advancement, and human rights of women. (88) To date, the program has produced mixed results. (89)
However, the situation on the ground in Juarez has not improved significantly. (90) Several scholars and activists have suggested that the Juarez police may have been directly complicit in these murders, (91) but I argue that even if they are not directly complicit, some Mexican authorities could face civil liability because of their systematic failure to investigate and prevent the killings.
II. THE ATS THROUGH SOSA
This Article argues that the families of the femicide victims should bring suit in the United States federal courts under the ATS, (92) which in its current wording states: "The district courts shall have original 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." (93) The ATS was passed by the first U.S. Congress as part of the Federal Judiciary Act of 1789 but lay virtually dormant before being revived in 1980 by Filartiga v. Pena-Irala. (94)
In Filartiga, plaintiffs alleged that Pena, while serving as Inspector General of Police in Paraguay, had kidnapped and tortured to death the seventeen-year-old son of Dr. Filartiga, because of the doctor's opposition to the Paraguayan government led by President Alfredo Stroessner. (95) Upon learning that Pena was living in the United States, Dr. Filartiga and his daughter brought suit in federal district court claiming damages under the ATS and several other statutes and treaties. (96) The Second Circuit Court ultimately held that "[h]aving examined the sources from which customary international law is derived - the usage of nations, judicial opinions and the works of jurists - we conclude that official torture is now prohibited by the law of nations" (97) and thereby is actionable under the ATS. On remand, the district court granted a default judgment in favor of the Filartigas, and each of the plaintiffs was awarded five million dollars in punitive damages. (98)
Since then, dozens of ATS cases have been brought in federal courts. At first, the claims were mainly against foreign government officials, but recently, more of the cases are focusing on claims against private individuals and multi-national corporations. (99) Until 2004, the Supreme Court had only issued one ruling on the ATS, which primarily addressed the tangential issue of whether the Foreign Sovereign Immunities Act protected foreign governments from suits under the statute. (100) Without direction from above, the meaning of the ATS was found amongst many conflicting federal court decisions, (101)
In the most important controversy, some judges and scholars claimed that the ATS did not grant new subject-matter jurisdiction to the federal district courts or create a private right of action, but basically allowed aliens a federal forum to bring suits under pre-existing U.S. law. The Supreme Court in Sosa v. Alvarez-Machain finally addressed this substantive jurisdiction issue. (102) The procedural history of the case is long and complex. Dr. Alvarez-Machain was allegedly present at a home in Mexico in 1985 where a DEA agent was held and tortured before being killed. (103) Dr. Alvarez-Machain allegedly prolonged the agent's life for additional torture. (104) Several people had been convicted in this incident, and an indictment was issued in 1990 for the arrest of Dr. Alvarez-Machain. (105) The U.S. hired a former Mexican police officer named Jose Francisco Sosa to bring the doctor into the United States. (106) Sosa and several accomplices abducted Alvarez-Machain and, after spending one evening in a motel, they flew him across the U.S.-Mexico border where U.S. authorities took him into custody. (107) The ensuing criminal case, which led to a separate ruling in the Supreme Court, (108) was eventually dismissed as too speculative. (109) Upon his return to Mexico, Alvarez-Machain commenced a suit against the United States and Sosa for numerous tort claims under the Federal Tort Claims Act (FTCA) and the ATS. His ATS claim argued that his abduction and transport to the United States was a violation of the law of nations. The district court granted the Government's motion to dismiss on the FTCA claim, but awarded Alvarez-Machain summary judgment and $25,000 in damages for his detention in Mexico under the ATS. (110) The circuit court then affirmed the ATS ruling and reversed the FTCA dismissal. (111) The United States and Sosa appealed to the Supreme Court.
The Court, in an opinion written by Justice Souter, first reversed the circuit court's ruling on the FTCA claim,... |
More articles from Yale Human Rights and Development Law Journal
Law and Disorder in the Postcolony.(Book review), January 01, 2007
Law, Infrastructure, and Human Rights.(Book review), January 01, 2007
Designing Criminal Tribunals: Sovereignty and International Concerns i..., January 01, 2007
Looking for additional articles?
Click here
to search our database of over 3 million articles.
|
