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11 Ga. J. Int'l & Comp. L. 311 (1981)
A Comment on Filartiga v. Pena-Irala

handle is hein.journals/gjicl11 and id is 319 raw text is: A COMMENT ON FILARTIGA v. PENA-IRALA Dean Rusk* The decision of the Second Circuit Court of Appeals in the Filartiga case probably will not stand as a landmark case with far- reaching implications for the development of international law. It is more likely to find its place as a legal oddity picked up in but see. . . footnotes by diligent scholars. Filartiga is one of the rare cases arising under a section of the Judiciary Act of 1789 (28 U.S.C. § 1350), which established original district court jurisdiction over all causes where an alien sues in tort for a violation of the law of nations or a treaty of the United States. The alleged facts presented an extreme case-the torture to death of a seventeen-year-old boy by an Inspector General of Police in Paraguay allegedly in retaliation for the political activi- ties of the boy's father. The district court had dismissed the com- plaint on jurisdictional grounds, citing two recent cases decided by the Second Circuit in 19751 and 1976, which were taken to mean that the law of nations, referred to in section 1350 excluded law that governs a state's treatment of its own citizens. The sole ques- tion before the Second Circuit was whether the alleged torture was a violation of the law of nations within the meaning of 28 U.S.C. § 1350, thus providing jurisdiction for the district court. The merits of the allegations and other issues such as forum non conveniens were not before the court. One must begin by complimenting the Second Circuit for its de- cision in this case.' It is a common law court; the body of tort law has been shaped over the centuries by the artistry of judges in- formed by a sense of fairness and justice. The facts alleged by the Filartigas pointed to acts of extreme brutality, which must shock any normal human being. It is entirely understandable that com- mon law judges might feel that if such an act is not a violation of the law of nations, it jolly well ought to be. The court decided ac- cordingly. The Filartigas probably could not bring their action under United States law for a tort committed in Paraguay. To tell them that they must bring their action in Paraguay would be a cyn- ical travesty. Under these circumstances, one can appreciate the * Samuel H. Sibley Professor of International Law, University of Georgia School of Law. IIT v. Vencap, Ltd., 519 F. 2d 1001 (2d Cir. 1975). 2 Dreyfus v. von Finck, 534 F. 2d 24 (2d Cir.), cert. denied, 429 U.S. 835 (1976). Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980).

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