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11 Ga. J. Int'l & Comp. L. 317 (1981)
Filartiga v. Pena-Irala: Comments on Sources of Human Rights Law and Means of Redress for Violations of Human Rights

handle is hein.journals/gjicl11 and id is 325 raw text is: FILARTIGA v. PENA-IRALA: COMMENTS ON SOURCES OF HUMAN RIGHTS LAW AND MEANS OF REDRESS FOR VIOLATIONS OF HUMAN RIGHTS Gabriel M. Wilner* The constructive role that national courts can play in the evolu- tion of international law, particularly with respect to individual rights, was demonstrated once again by the decision of the U.S. Court of Appeals for the Second Circuit in Filartiga v. Pena-Irala.' The court was, of course, careful to establish the basis of its jurisdiction under its national law, both statutory and decisional. The jurisdictional issue raised was whether a tort had been committed under the 1789 Judiciary Act, which includes torts committed in violation of the law of nations or a treaty of the United States.2 The essential question was whether judicial redress for violation of the human rights of the deceased, Joelito Filartiga, kidnapped and tortured to death in Paraguay, was available to his father and sister against the alleged torturer, Norberto Pena-Irala who was the Inspector General of Police in Asuncion, Paraguay. All the persons involved were Paraguayans at the time of the event. The court, in an opinion by Judge Kaufman, recognized that the act committed against Joelito Filartiga amounted to a tort under Paraguayan law and would certainly have been a tort under the forum law in the United States. The issue remained as to the law applicable to the tort once it was decided that for jurisdictional purposes the tort violated international law. The court's im- mediate task was to decide whether torture violated international law for purposes of taking jurisdiction. It is well established under international law that a host state breaches its responsibility toward the state of which an individual is a national if the host state subjects the individual to treatment of his or her person below generally accepted standards of state * Professor of Law, University of Georgia; Director of the Brussels Seminar on the law and institutions of the European Communities. 630 F.2d 876 (2nd Cir. 1980). 28 U.S.C. § 1350. For an excellent review of the case and issues raised, see Blum and Steinhardt, Federal Jurisdiction Over International Rights Claims: The Alien Tort Claims Act after Filartiga v. Pena-Irala, 22 HARV. J. INT'L L. 53 (1981). 317

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