Part I: What is the Torture Victim Protection Act (TVPA)?


Passed in 1991 and signed into law by President George H.W. Bush in 1992, TVPA gives rights to U.S. citizens and non-citizens alike to bring claims for torture and extrajudicial killing committed in foreign countries. Similar to the Alien Tort Statute, TVPA allows for the filing of civil (rather than criminal) claims in U.S. courts, meaning that suits can result in monetary compensation to victims rather than any jail time for perpetrators.

Requirements:

  • TVPA suits can be filed against individuals who, acting in an official capacity for any foreign nation, committed torture or extrajudicial killing of victims of any nationality.
  • Plaintiffs can be either U.S. citizens or non-citizens.
  • Defendants must be acting in an official capacity or at least appearing to be acting in such capacity. These can be, for example, a government official or a military official (but not corporations, as detailed below).
  • The crimes in question must be either torture and/ or extrajudicial killing (that is, the killing of a person by governmental authorities without the sanction of any judicial proceeding or legal process).
  • Plaintiffs also need to show that, prior to bringing the lawsuit before a U.S. court, they have attempted to find redress in the country in which the crime was committed (and that the country lacked “adequate and available” remedies for the victims).

Purpose:

Among other purposes, the TVPA was meant to extend protection to both U.S. citizens and non-citizens tortured or killed without trial abroad and to implement requirements of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

 

Part II: TVPA in Action


The First Case: Torture by Military Forces in Guatemala

The first TVPA case was brought in 1992 by Sister Dianna Ortiz, who sued former general and Defense Minister Héctor Gramajo of Guatemala, contending that, by his command authority, he was responsible for her abduction, rape, and torture by military forces in Guatemala in November 1989. In 1995, a federal court in Massachusetts ruled in her favor, awarding her $5 million in damages.

The Defendants: Only People, Not Organizations

On April 18, 2012, in Mohamad v. Palestinian Authority, the U.S. Supreme Court unanimously ruled that the TVPA applies exclusively to individuals and does not impose liability against corporations. In Mohamad, a victim’s family sued the Palestinian Liberation Authority (PLO) for his torture, imprisonment and extrajudicial killing in the West Bank. The Court’s decision was based on the statute’s use of the word “individual” and on its legislative history. The Court noted that the original language of the TVPA bill had used the word “person” and that during a House committee markup, one of the bill’s sponsors proposed an amendment “to make it clear we are applying it to individuals and not to corporations.”

An Exception: Suing State Sponsors of Terrorism

The TVPA has also been used by victims of terrorism to sue foreign states that have been designated by the U.S. as state sponsors of terrorism, such as Iraq and Iran. In general, the Foreign Sovereign Immunity Act (FSIA) prohibits foreign states from being sued in U.S. courts for most issues. However, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) creates an exception to this rule, which allows U.S. nationals to sue foreign states if the state has been designated as a state sponsor of terrorism and if the plaintiff’s injury has been caused by the state’s support of a terrorist organization. Numerous suits have been brought against such state sponsors of terrorism. Because some courts have held that the AEDPA does not create a cause of action against foreign states, plaintiffs have used the TVPA and the AEDPA in concert, first using the AEDPA to provide an exception to a foreign state’s sovereign immunity, and then using the TVPA to provide a cause of action.

Similar to but Also Different from the Alien Tort Statute (ATS)

Although both the TVPA and the ATS may be used to pursue claims for torture and extrajudicial killing, they are distinct statutes with their own limitations. First, unlike the ATS, claims under the TVPA may only be brought against persons who acted under the (actual or apparent) authority of a foreign nation. This means non-state actors cannot be sued through the TVPA. Second, while TVPA claimants must exhaust all “adequate and available” remedies in the country where the offense occurred, it is not settled whether this requirement applies to ATS claimants too. Third, whereas corporations are exempt from liability under the TVPA, they can be sued under certain conditions under the ATS. Fourth, in contrast with the ATS, which provides the basis for an array of international law torts, the TVPA authorizes recovery for two torts only: torture and extrajudicial killing. Finally, the statutes vary in the scope of their territorial application. U.S. citizens and non-citizens alike can be TVPA plaintiffs, but the cause of action requires foreign state action. In contrast, only non-citizens can sue under the ATS, but they can bring claims against either citizen or non-citizen defendants.