Important Human Rights Remedies at Stake in Mamani v. Berzain

June 18, 2015

by guest bloggers Jonathan Schmidt, Hastings Law School and Ropes & Gray LLPEarlier this week, the Eleventh Circuit heard oral argument in Mamani v. Berzain, a case filed by the Center for Constitutional Rights, on an issue that threatens the ability of international human rights victims to bring claims in United States courts under the Torture Victim Protection Act (“TVPA”), 28 U.S.C. § 1350 note. At issue in Mamani is the TVPA’s exhaustion clause, which provides that “[a] court shall decline to hear a claim under this section if the claimant has not exhausted adequate and available remedies in the place in which the conduct giving rise to the claim occurred.” 28 U.S.C. § 1350 note § 2(b). The Defendants have argued that the Plaintiffs’ exhaustion of humanitarian aid remedies precludes pursuit of TVPA claims in federal court.

Mamani arises from the alleged use of deadly military force against unarmed civilians during the 2003 Bolivian gas crisis. The Plaintiffs allege that the use of force was ordered by the Defendants—Bolivia’s former President, Gonzalo Daniel Sánchez de Lozada Sánchez Bustamante, and Bolivia’s former Minister of Defense, Jose Carlos Sánchez Berzaín. Because the Defendants fled Bolivia shortly after the crisis, they have never stood trial in Bolivia and have never been held to account for their alleged actions.

After the Defendants fled Bolivia, a new government passed several humanitarian aid measures designed to compensate Bolivians like the Mamani Plaintiffs for some of their losses. In proceedings before the Federal District Court for the Southern District of Florida, the Defendants argued that once the Plaintiffs exhausted their remedies under those humanitarian aid measures, satisfying the TVPA’s exhaustion clause, this constituted an “adequate and available” remedy that should preclude the Plaintiffs’ TVPA claims. The district court rejected this argument, holding that the humanitarian aid received by the Plaintiffs in Mamani does not preclude them from seeking to hold the Defendants liable under the TVPA, noting that the traditional concept of exhausting remedies typically does not preclude judicial relief, but rather postpones it until the prescribed alternative remedy has been exhausted. Defendants have renewed their argument on appeal to the Eleventh Circuit.

The Center for Justice and Accountability (“CJA”) and pro bono co-counsel Ropes & Gray LLP, on behalf of CJA itself and several of CJA’s clients who had previously brought and prevailed on claims under the TVPA, submitted an amicus brief to the Eleventh Circuit addressing the TVPA’s exhaustion requirement from the perspective of international human rights law and arguing for affirmance of the district court’s decision. CJA’s brief argues that the legislative history of the TVPA makes clear that Congress intended the exhaustion clause to be informed by the application of the exhaustion requirement in international human rights tribunals. These tribunals include the European Court of Human Rights (“ECHR”), which, at the time the TVPA was passed, had developed a robust jurisprudence on the exhaustion requirement.

International human rights courts such as the ECHR hold that Thus, international human rights courts only assess the “adequacy” and “availability” of domestic remedies when a plaintiff claims that a failure to exhaust certain remedies should be excused. While the words “adequate and available” describe the category of local remedies that must be exhausted by TVPA Plaintiffs, they do not describe remedies that, once exhausted, have any preclusive effect.

Preclusion is a separate legal doctrine, under both international and U.S. law, which the district court has not yet had theMamani. Indeed, while international human rights courts do not assess the preclusive effect of prior remedies under the exhaustion doctrine, they do conduct such an analysis in the context of other international law doctrines similar to claim preclusion and issue preclusion under U.S. law.

Moreover, even under these preclusion doctrines, international human right courts have held that humanitarian aid cannot preclude an international human rights claim for gross human rights violations like extrajudicial killing because it does not constitute a full and effective remedy for the harms suffered by victims. International human rights courts recognize that a full and effective remedy includes the fundamental right to satisfaction and accountability from the individual perpetrators. Here, where Plaintiffs were relatives of victims of extrajudicial killing, the humanitarian aid from the Bolivian government was not a full and effective remedy because it did not hold the Defendants accountable for their alleged violations of the Plaintiffs’ basic human rights. As the District Court noted in its Order, this concept of accountability is fundamental to the TVPA: “The goal of the statute on its face, then, is to redress specific individuals’ wrongdoings by ensuring that their actions have legal consequences—to wit, that they literally ‘pay the price’ for their wrongs.”

CJA’s amicus brief thus argues that the Eleventh Circuit should reject the Defendants’ argument, and should hold that the TVPA’s Such a ruling would accord with Congressional intent, promote respect for well-established international human rights law precedent, and lend support to the ability of international human rights victims to seek truth, justice, and redress in U.S. courts.