On September 29, 2011, CJA filed an amicus brief in support of the plaintiffs’ petition for a rehearing en banc of an 11th Circuit panel’s decision in Mamani v. Berzain.   The brief was filed on behalf of retired military professionals, scholars and professors of military law, and it argues that the 11th Circuit decision contravenes the well-established doctrine of command responsibility under both domestic and international law.

On March 13, 2015, CJA filed a second amicus brief in the case, in support of the Plaintiffs’ position on appeal to the Eleventh Circuit.  The brief was filed on behalf of CJA clients and argues that the exhaustion requirement under the Torture Victim Protection Act (TVPA), as interpreted under international human rights law, is a condition precedent, and not a bar to litigation, especially when Plaintiffs have not received a full and effective remedy against the individual perpetrator.

On October 12, 2018, CJA filed a third amicus brief in support of the Plaintiffs’ appeal to the Eleventh Circuit after the District Court overturned the jury verdict and ruled in favor of the Defendants. The brief, filed on behalf of retired U.S. military commanders and law of war scholars, highlighted the importance of the command responsibility doctrine for ensuring disciplined military actions and reducing civilian casualties.

Background

In 2007, ten victims of human rights violations in Bolivia filed civil suits under the Alien Tort Statute (ATS) and the Torture Victim Protection Act (TVPA) against the former President of Bolivia Gonzalo Daniel Sánchez de Lozada Sánchez Bustamante, and the former Bolivian Minister of Defense Jose Carlos Sánchez Berzaín.

The Plaintiffs alleged that during the anti-government protests in Bolivia in September and October 2003, the defendants sanctioned the use of deadly force against unarmed civilians by Bolivian security forces.  As a result, Bolivian security forces under the command and control of the Defendants killed 67 civilians and injured 400 others predominantly from indigenous Aymara communities.  Plaintiffs alleged that although the Defendants did not personally commit the attacks, they are responsible as a result of their command responsibility over the military and security forces, their conspiring to commit the attacks, and their subsequent aiding and abetting of the attacks.

With the help of the International Human Rights Clinic at Harvard and the Center for Constitutional Rights, Plaintiffs filed claims of crimes against humanity and extrajudicial killing for the deaths of their family members during the 2003 massacre.

In 2009, the Southern District of Florida denied the Defendants’ motion to dismiss and permitted plaintiffs’ claims for extrajudicial killing and crimes against humanity to move forward.  However, upon appeal to the Eleventh Circuit, a three-judge panel dismissed the complaint, ruling that the Plaintiffs had not pleaded sufficient facts to hold defendants accountable for the harms alleged under the ATS.  Specifically, the panel held that without added facts substantiating the crimes and the Defendants’ personal involvement, the claims were not sufficient to state a violation of international law.  Plaintiffs’ petition for rehearing en banc was denied.

On June 24, 2013, Plaintiffs filed an Amended Complaint with extensive new factual allegations linking the Defendants to the killings, including evidence that the Defendants had devised a plan to kill thousands of civilians months in advance of the violence. In response to Defendants’ motion to dismiss, the District Court ordered that Plaintiffs’ claims of torture and extrajudicial killing under the TVPA could proceed because the complaint adequately alleged Defendants’ responsibility for the attack.  However, the court dismissed Plaintiff’s ATS claims for lack of subject matter jurisdiction in light of the Eleventh Circuit’s interpretation of the Supreme Court’s decision in Kiobel v. Royal Dutch, requiring that extraterritorial claims “touch and concern” the U.S. in order to be actionable in federal courts.

In response to Defendant’s argument that Plaintiffs were adequately compensated in Bolivia by receiving State funded humanitarian aid, and thereby precluded from remedy under the TVPA’s exhaustion requirement, the District Court reasoned that the TVPA explicitly establishes individual liability for damages, thus State relief could never preclude individual accountability under the TVPA.  The court concluded that international law governs the exhaustion requirement, which requires the State in which the violation occurred to have the first opportunity to redress the harm within the framework of its own domestic legal system, and that this requirement is merely a procedural hurdle that plaintiffs must clear before seeking relief under the TVPA.

The issue was certified for interlocutory appeal and argued before the Eleventh Circuit. The case was stayed on August 19, 2014 pending Defendants’ appeal of the District Court’s decision, and Appellants-Defendants filed their brief to the Eleventh Circuit Court of Appeals on January 14, 2015.  Plaintiffs-Appellees filed their brief on March 6, 2015.

On June 16, 2016, the Eleventh Circuit affirmed the District Court’s decision denying the Defendant’s motion to dismiss the TVPA claims.

On April 3, 2018 the jury returned a unanimous verdict, finding Defendants responsible for the extrajudicial killings of civilians under a theory of command responsibility. The decision awarded Plaintiffs $10 million in compensatory damages. On May 30, 2018, however, the District Court judge overturned the verdict, ruling for the Defendants on a motion for judgment as a matter of law. The Plaintiffs appealed to the Eleventh Circuit and filed their brief on October 5, 2018. CJA filed its amicus brief on behalf of retired U.S. military commanders and law of war scholars in support of Plaintiffs-Appellants on October 12, 2018.

On August 3, 2020, the Eleventh Circuit vacated the District Court’s decision and remanded the case. The court explained that to establish liability for extrajudicial killings under the TVPA, the Plaintiffs must demonstrate: (1) that extrajudicial killings—killings that were both deliberate and unlawful— had occurred and (2) that the Defendants were linked to the killings. In overturning the jury’s decision, the District Court had concluded that there was insufficient evidence to support that the killings were deliberate because the Plaintiffs had failed to present evidence showing that the Defendants had a “preconceived plan” to target civilians. The Eleventh Circuit concluded that this analysis by the District Court improperly “conflated the standard for an extrajudicial killing [first prong] with the theory of liability tying Defendants to the decedents’ deaths [second prong].” While the Eleventh Circuit acknowledged that evidence of a premeditated plan by the Defendants would support both that extrajudicial killings had occurred and that the Defendants were linked to the killings, this type of evidence was not required.

Instead, for the first prong, the Eleventh Circuit stated that evidence of soldiers “acting under orders to use excessive or indiscriminate force” could be sufficient to show that the killings were deliberate, even without a specific plan in place by Defendants. The court further noted that to satisfy the second prong and demonstrate a link between the Defendants and the killings, the Plaintiffs were not required to show that the Defendants deliberately intended the killings to occur. Rather, the court made clear that this prong could be satisfied though presenting the following evidence: (1) that the killers were subordinates to Defendants, (2) that Defendants “knew or should have known” that their subordinates were carrying out these killings, and (3) that Defendants “failed to prevent or punish” their subordinates for their actions. Having clarified the analysis, the Eleventh Circuit remanded the case to the District Court to re-examine the evidence under the correct standards.

CJA’S Amicus Briefs and Outcome

Amicus Brief on Command Responsibility (September 29, 2011)

CJA filed an amicus brief with pro bono partner Wilson Sonsini Goodrich & Rosati on behalf of retired military professionals, scholars, and experts in military law on September 29, 2011. The brief was filed in support of the Plaintiffs’ petition for rehearing en banc. In our brief, we argued that the Eleventh Circuit panel erred by requiring a showing of direct personal involvement to establish command responsibility.  The requirement of direct personal involvement, we explained, is only necessary to establish direct responsibility for harms alleged, not to establish command responsibility.

Under well-established Eleventh Circuit precedent and domestic and international law, a high ranking official can be held accountable for crimes committed by persons under such official’s effective command if the official knew or had reason to know of wrongful conduct committed by subordinates and failed to prevent or punish the conduct.  Although such commanders must have some knowledge of the conduct in question, they need not be aware of, or personally direct, specific killings of victims in order to be held criminally responsible to plaintiffs suing under the command responsibility doctrine.

By requiring plaintiffs to show that defendants had specific knowledge or direct personal involvement in the deaths of plaintiffs’ decedents, the Eleventh Circuit panel departed from the Supreme Court’s application of the command responsibility doctrine in In re Yamashita, 327 U.S. 1, 16 (1946); the Eleventh Circuit’s own test for command responsibility, as formulated in Ford v. Garcia, 289 F.3d 1283, 1288-89 (11th Cir. 2002); and well-established tenets of military law.

In Yamashita, one of the first U.S. cases to acknowledge the command responsibility doctrine, the Supreme Court found that a Japanese military commander could be held responsible for the widespread atrocities committed by Japanese military personnel and prison guards in the Philippines during World War II, even if that commander did not specifically order the harms in question.  The Eleventh Circuit articulated the legal elements of command responsibility for ATS cases in Ford v. Garcia.  CJA’s brief argued that the panel decision risked limiting liability for human rights violations to low-level actors, thereby undermining the very purpose of the command responsibility doctrine.

 

In addition to CJA’s amicus brief, three other briefs were filed in support of the Plaintiffs’ petition:

1. Earth Rights International filed a brief arguing that the Eleventh Circuit decision misapplied the standard for crimes against humanity under international law. Available here.
2. Professors Phillip Alston and Sarah Knuckey from NYU School of Law filed a brief on the standards for extrajudicial killing.  Available here.
3. Cohen Milstein Sellers & Toll PLLC filed a brief on behalf of professors of civil procedure arguing that the Eleventh Circuit decision improperly imposed a heightened pleading standard that contradicts the Federal Rules.  Available here.

Plaintiffs’ petition for rehearing en banc was denied.

 

Amicus Brief on Exhaustion Under the TVPA (March 13, 2015)

On March 13, 2015, CJA, in partnership with Ropes & Gray, submitted an amicus brief to the Eleventh Circuit on behalf of CJA and seven CJA clients.

The brief supports an affirmation of the District Court’s ruling on the exhaustion provision of the TVPA that arguing 1) the TVPA incorporates the exhaustion requirement as it is applied under customary international law by human rights courts; 2) under international human rights law, the exhaustion-of-local-remedies requirement does not have any preclusive effect and is merely a condition precedent to admissibility on the merits; and 3) humanitarian aid alone does not preclude international human rights claims for extrajudicial killing and torture because it does not provide a full and effective remedy, which must include individual accountability and satisfaction from the perpetrators.

On June 16, 2016, the Eleventh Circuit affirmed the District Court’s decision denying the defendant’s motion to dismiss the TVPA claims. The Court unanimously ruled that the local remedies that Plaintiffs received in Bolivia did not preclude their TVPA claims.

 

Amicus Brief on Doctrine of Command Responsibility (October 12, 2018)

On October 12, 2018, CJA filed an amicus brief, in partnership with Shearman & Sterling LLP, on behalf of U.S. military commanders and law of war scholars on the issue of command responsibility.

The brief responds to the May 30, 2018 decision of the District Court, which overturned a unanimous jury verdict in favor of Plaintiffs. The District court found that the Plaintiffs had failed to show that their relatives were killed “pursuant to a plan, conceived and implemented by Defendants, to deliberately kill civilians.” Our brief contends that this is the incorrect standard, and that such a limitation on the command responsibility doctrine would undermine the goals of minimizing civilian harms and promoting accountability.

Although the District Court’s judgment does not explicitly discuss command responsibility, its requirement that the Defendants directly participate in the planning or implementation of the crimes would render the command responsibility doctrine meaningless. The brief explains the correct standard based on domestic and international law: that a commander is responsible for the acts of subordinates if he knew or should have known of the crimes and he failed to prevent or punish the perpetrators. For further elaboration of this standard and relevant case law, see the description of CJA’s September 29, 2011 brief, above.

The Eleventh Circuit vacated and remanded the District Court’s decision on August 3, 2020. While the court did not engage in a detailed analysis of command responsibility, due to the fact that the District Court had not directly addressed this point, the Eleventh Circuit acknowledged that the Plaintiffs did not need to show evidence of the Defendants’ planning or direct involvement in the killings as long as the Plaintiffs linked the Defendants to the killings through a showing that they “knew or should have known” about the killings by their subordinates and “failed to prevent or punish” them for their actions.