Legislation to end torture in the USA

In our latest blog we meet IRCT’s Elena Cálix from Honduras, who is currently an intern at the IRCT European Affairs Office in Brussels. In line with her work, Elena tells us about legislation related to justice and rehabilitation for torture victims in the United States.

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IRCT’s Elena Cálix

The funding of rehabilitation services poses a continuous challenge for the IRCT and its member centres. Moreover, the unwillingness of states to comply with their obligations, leave NGOs struggling to acquire sufficient funding to provide the necessary rehabilitation to victims of torture. As I started a desk study about prospects for funding rehabilitation services for torture victims in Europe, I first had to take a look at what other regions are doing in this respect. In this piece, I would like to share some particularities I have found about the United States (U.S.).

In the international arena the United States is seldom related positively to the word “torture”, especially in light of the very public torture cases perpetrated in name of the “war on terror” or the ongoing violations that have been taking place for years in Guantanamo Bay. Nevertheless, it is not all negative when it comes to the U.S. and torture; there are positive features within their legislation that deserve a mention with regard to justice and rehabilitation of torture victims.

ATCA and TVPA: Tools to Bring Perpetrators of Torture to Justice

For over 30 years, a foreign victim of international crimes – including torture – has been able to seek redress in United States federal courts and obtain civil remedies under the Alien Tort Claims Act (ATCA), created in 1789. Although there is little known about the reasons for the creation of this law (the word torture is not once mentioned), after nearly 200 years of disuse, it was used for extraterritorial jurisdiction in cases of torture in 1980 with the landmark case Filartiga v. Peña-Irala.

The list of cases filed under the ATCA since then includes lawsuits against former heads of states, other government’s officials, military personnel, members of death squads, and even corporations.

Furthermore, in 1991 the U.S. Congress adopted the Torture Victim Protection Act (TVPA), a legislation that provides the right to bring a lawsuit specifically to victims of torture and extrajudicial killings. Unlike the ATCA, the TVPA actually provides an actual definition of torture and it applies not only to aliens exclusively, but also U.S. citizens victimised by torture in foreign countries.

An example of a successful case brought under the ATCA/TVPA is Jean v. Dorelien, a case against a former member of the Haitian Military’s High Command during the dictatorship in Haiti, who was found guilty of torture, extrajudicial killing, arbitrary detention and crimes against humanity in 2007. The perpetrator won the state lottery while living in Florida and as a result of the judgement in 2008, the amount of $580,000 was distributed to the victims. One of the victims used a portion of the recovery to help fund The Hope Centre for Haitian Refugees, an organization he founded to provide social services to Haitian refugees.

Torture Victim Relief Act: Funding Rehabilitation of Torture Victims

In terms of rehabilitation of torture victims, the Torture Victim Relief Act (TVRA) must be acknowledged as an example of national legislation introduced to provide funding rehabilitation centres. The U.S. Congress passed the first TVRA in 1998, authorizing funding support programs domestically and overseas that carry out projects or activities specifically designed to treat victims for the physical and psychological effects of torture.

The funds are accessed by rehabilitation centres through a competitive grant process. The TVRA authorises the Office of Refugee Settlement (ORR) to fund the U.S. based rehabilitation programs for survivors of torture, and authorises funding for the U.S. Department of State, U.S. Agency for International Development (USAID) and the United Nations Voluntary Fund for Victims of Torture (UNVFVT) to support programs that are carrying out projects involving torture rehabilitation, outside the U.S.

The U.S. going forward

The U.S. has powerful tools for human rights litigation with the ATCA and the TVPA; furthermore the establishment of legislation such as the TVRA could demonstrate effort to provide legal remedies for torture victims.

Nevertheless, I believe that further research is needed in regard of the actual implementation of these legislations on the ground and its effectiveness in the fight against torture. Moreover, it is important to make clear that this does not necessarily counteract the U.S. unwillingness to join international legislation against torture and to end impunity in torture cases involving their government officials, in the Bush administration for instance.

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