Amicus Curiae Brief — Republic of Philippines v. Pimentel

Supreme Court of the United States

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REPUBLIC OF THE PHILIPPINES, et al.,

Petitioners,

v.

MARIANO J. PIMENTEL, et ai.,

Respondents.

o

vv

On Writ Of Certiorari To The

United States Court Of

For The Ninth Circuit

o

v

MOTION OF PHILIPPINE HUMAN RIGHTS GROUPS

AS AMICUS CURIAE SUPPORTING RESPONDENTS

FOR LEAVE TO FILE BRIEF AND BRIEF FOR

HUMAN RIGHTS GROUPS AS

AMICUS CURIAE SUPPORTING RESPONDENTS

o

v

MARK S. Davis

DAvIs LEVIN-LIVINGSTON

400 Davis Levin Livingston Place

851 Fort Street

Honolulu, HI 96813

(808) 524-7500

Counsel for Amicus Curiae

Philippine Human Rights Groups

COCKLE LAW BRIEF PRINTING OO. (800) 225-606<

OR CALL COLLECT (4032) 343-2831

1

MOTION OF PHILIPPINE HUMAN

RIGHTS GROUPS AS AMICUS CURIAE

SUPPORTING RESPONDENTS FOR LEAVE

TO FILE BRIEF OF AMICUS CURIAE

Pursuant to Rule 37 of the Rules of this Court,

Philippine Human Rights Groups respectfully move

the Court for leave to file a brief of amicus curiae in

the above-captioned case. Counsel for Respondents

have granted consent for this submission. Although

consent was sought from Counsel for Petitioners,

_ such request was declined.

This amicus curiae brief is submitted by nine

human rights groups in the Philippines. These groups

emphasize different human rights issues, but all

remain deeply concerned about the protection of

fundamental human rights within the Republic of the

Philippines, and believe that the ability of the Victims

in the case underlying the present collection effort is

vitally importai.. to the protection of human rights in

the Philippines. Members of these nine groups believe

that it is crucial that the Victims be allowed to collect

on their judgment, especially in light of the active

support the Republic of the Philippines gave to the

underlying claim in the early stages of this litigation

and the extensive resources that the U.S. courts have

given to this adjudication.

These nine Philippine human rights groups believe

that this amicus curiae brief will be helpful to this

Honorable Court, by providing some of the context for

the underlying claim brought by the Class of Human

2

Rights Victims; by explaining the obligation under

international law of the Republic of the Philippines to

compensate these Victims, as reinforced recently by

the United Nations Human Rights Committee; and

by providing information about the continuing human

rights abuses in the Philippines at the present time.

The nine Philippine human rights groups emphasize

that human rights can be protected only if independ-

ent courts apply the rule of law to cases brought

before them without regard to the political pressures

related to the claims presented. In the present inter-

pleader action, the Republic of the Philippines pre-

sented absolutely no evidence that it is entitled to the

disputed assets, and it should not be permitted to

disrupt the orderly distribution of these assets at the

present time.

Given their expertise on the human rights condi-

tions in the Philippines, these nine human rights

groups would like to provide the Court with their

perspective on these issues. They believe this submis-

sion will assist the Court in its deliberations. These

groups are filing a joint brief to reduce multiple

filings with the Court.

3

3

For these reasons, these nine Philippine human

rights groups respectfully request that the Court

grant this motion for leave to file.

Dated: February 26, 2008

Respectfully submitted,

MakkK S. Davis

Davis LEVIN LIVINGSTON

400 Davis Levin Livingston Place

851 Fort Street

Honolulu, Hawaii 96813

(800) 524-7500

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS. ...000.........c:ccccssssesseeeeeeeeeeees i

TABLE OF AUTHORITIES ...0...........cccceeeeeeeeeseeees ii

INTEREST OF AMICUS CU RIAE...........ccccccccseees 1

STATEMENT OF CASE. ...............ccccccssssssssssseseeseees 5

SUMMARY OF ARGUMENT ......0...............ceeeeeeees 9

I aiiiinnncitnbicprieniibiinidatininaidesccnniiinionepucsors 11

I. THE REPUBLIC OF THE PHILIPPINES

AND ITS PRESIDENTIAL COMMIS-

SION ON GOOD GOVERNMENT (PCGG)

SHOULD NOT BE ABLE TO BLOCK THE

EFFORTS OF HUMAN RIGHTS VICTIMS

TO COLLECT THEIR JUDGMENT BASED

ON AN UNSUBSTANTIATED ALLEGA-

TION THAT ASSETS OF A FORMER DIC-

TATOR BELONG TO THE REPUBLIC........ 11

II. COUNTRIES HAVE A CONTINUING OB-

LIGATION TO PROVIDE COMPENSA-

TION TO HUMAN RIGHTS VICTIMS

WHO HAVE SUFFERED ABUSES AT

THE HANDS OF PREVIOUS GOVERN-

ee vissccictinadieensninjridaniineinanidaitaiaimnventstnersees 13

III. HUMAN RIGHTS ABUSES ARE CON-

TINUING IN THE REPUBLIC OF THE

PHILIPPINES, AS DOCUMENTED AT A

HEARING HELD IN THE U.S. SENATE

AND A REPORT RECENTLY ISSUED BY

AU.N. RAPPORTEUR ...............:cccseseseeseeees 20

IEE cscccschitisanedstnciapinesaansinciscionentpenpinteaiaiies 24

li

TABLE OF AUTHORITIES

FEDERAL CASES

Hilao v. Estate of Marcos, 25 F.3d 1467 (9th Cir.

1994), cert. denied, 513 U.S. 1126 (1995)............. 8,12

Hilao v. Estate of Marcos, 103 F.3d 762 (9th

GO ee actin siccreiassictin <opesnatetiiiiieindihaldnlin ei ia aac 8

In re Estate of Ferdinand E. Marcos Human

Rights Litigation, 910 F.Supp. 1460 (D.Haw.

ST cccuiitiictenisisatabbeiseaitseiviasidhiaiiiniaitectlsiaitaaitMil dia lets 6,7

Merrill Lynch, Pierce, Fenner and Smith, Inc. v.

ENC Corporation, 464 F.3d 885 (9th Cir.

Pee icititecowinssinetininitentatndipeieidiaaitiillia dt Miia iaai i ial ail 9,13

Merrill Lynch, Pierce, Fenner and Smith, Inc. v.

ENC Corporation, 467 F.3d 1205 (9th Cir.

SOD cisivtessnatitanietsceeaninmnciniticlonnsaiinpiaiiaianiiinadstiadbiaiadiidiiiatl 9

Republic of the Philippines v. Marcos, 806 F.2d

OG Ge GI Bi cticessnctiscconssstunistcctmnainssiisiiiienis 12, 13

Republic of the Philippines v. Marcos, 862 F.2d

1355 (9th Cir. 1988) (en banc) .................:ccceeeeeeeees 13

Sosa v. Alvarez-Machain, 542 U.S. 692

Fee a ntiaptocsnasccnssatssccsimiebinideiditummaanaiaiiaeiia 10, 19, 20

OTHER CASES

Communication No. 1320/2004, Human Rights

Committee, CCPR/C/89/D/1390/2004 (April 3,

Dh Me nicsciiinesssccacencianbivtsdansisdiniiantidalieD seattle 18, 19

Federal Office for Police Matters v. Aguamina

Corp., 1A.87/1994/err (Swiss Federal Court,

DE, Th, GPa vsstasecensvininincescsnsssadcnnimncaieieieasiaaniaiinalbia 15

iii

TABLE OF AUTHORITIES — Continued

Page

Swiss Federal Office for Police Matters v.

Fondation Maler, 1A.91/1997/odi (Swiss Fed-

eral Court (Bundesgericht, Dec. 19, 1997),

Joint Appendix (JA) 64 (Ex. 47) ................ 14, 15, 16

Velasquez Rodriguez Case, 28 I.L.M. 291 (1989)....17, 18

FEDERAL STATUTES

Alien Tort Statute, 28 U.S.C. sec. 1350......... 10, 19, 20

Torture Victim Protection Act (TVPA), Pub.L.

I esas 10, 19

FEDERAL RULES

Rule 19(b) of the Federal Rules of Civil Proce-

TREATIES AND OTHER INTERNATIONAL DOCUMENTS

American Convention on Human Rights, 144

EE 17

Convention Against Torture and Other Cruel,

Inbeman or Degrading Treatment or Pun-

ishment, Dec. 10, 1984, 23 LL.M. 1027

(1984), as modified, 24 I.L.M. 535 (1985)............... 15

European Convention on Human Rights, 213

TT 17

Universal Declaration of Human Rights,

U.N.G.A. Res. 217A (1948) .............ccccccccccceeeeeeeeeeees 16

iv

TABLE OF AUTHORITIES — Continued

Page

International Covenant on Civil and Political

Rights, Dec. 16, 1966, 999 U.N.T.S. 171................ 14

Vienna Convention on the Law of Treaties,

May 23, 1969, 1155 U.N.T\S. 331 ...............cccccceceees 17

MISCELLANEOUS

Amnesty International USA, Senate Hearing

Testimony — Extrajudicial Killings in the

Philippines — Strategies to End the violence,

March 14, 2007, at <http://www.amnestyusa.

org/document. php?lang=e&id=ENGUSA2007

0314001> (last visited Feb. 3, 2008)....................... 22

Press Statement issued by Prof. Philip Alston,

U.N. Special Rapporteur on Extrajudicial,

Summary or Arbitrary Executions, Feb. 21,

2007, at 3, available at <http://www.extra

judicialexecutions.org/news/Philippines_21_

Feb_2007.pdf> (last visited Feb. 3, 2008) ........ 22, 23

1

INTEREST OF AMICUS CURIAE

This amicus curiae brief is filed jointly by nine

human rights groups in the Philippines.’ These

groups have a strong interest in promoting human

rights principles in the Philippines and they urge this

Honorable Court to reject the effort of Petitioners to

have this case dismissed, because such a dismissal

would be a severe setback to the cause of promoting

and protecting human rights in the Philippines. The

individual groups are described in the paragraphs

that follow.

1. Claimants 1081. Founded in 1994, Claim-

ants 1081 consists of several thousand individuals

who suffered human rights abuses during the Marcos

martial law period. It helps to coordinate these vic-

tims and to work with other human rights groups to

promote justice and accountability. Its Secretary

General is Ramon C. Casiple.

‘ Pursuant to this Court’s Rule 37.6, amicus curiae states

that no person or entity other than amicus curiae made any

monetary contribution to the preparation or submission of the

brief, and also states that Professor Jon M. Van Dyke, who is

one of the counsel for the Class Human Rights Victims, assisted

with the preparation of this brief in part. The costs of printing

are being provided by the JEHT Foundation, 120 Wooster

Street, New York, N.Y. 10012.

Pursuant to Rule 37.3, amicus curiae states that Respon-

dents have consented in writing to the filing of the brief; Peti-

tioners counsel has been ask to consent, but has not given

consent in writing as of the time of this filing.

The letter from Respondent granting permission is enclosed.

2

2. Philippine Alliance of Human Rights

Advocates (PAHRA). Founded in 1986, PAHRA is

an alliance of organizations, institutions and indi-

viduals committed to the promotion, protection and

realization of human rights. The majority of its

members are based in Metro Manila, but it has

provincial and regional counterparts in other parts of

the country. PAHRA was formed as a consolidation of

the human rights movement in the country and as an

acknowledgment of the role played by some 50 hu-

man rights organizations in the struggle against the

Marcos dictatorship. Since its founding, it has served

to promote cooperation and coordination among

human rights groups in the country. It is currently

affiliated with the International Federation of Hu-

man Rights based in Paris, France. Max de Mesa is

the current Chairperson of PAHRA.

3. Task Force Detainees of the Philippines

(TFD-P). TFD-P was established in 1974 by the

Association of Major Religious Superiors in the Phil-

ippines. It became a pioneering human rights organi-

zations and responded to the needs of the early

Marcos martial law victims, mobilizing church work-

ers and other volunteers to document the arbitrary

detention and torture during the Marcos period. Its

careful documentation and monitoring of the abuses

has served as a source of evidence since the lifting of

martial law. It has also conducted education pro-

grams on human rights principles. TFD-P is currently

a member of the International Federation of Human

Rights (FIDH), based in Paris, France. In 1990, it was

3

nominated for the Nobel Peace Prize and, in

2004,TFD-P was a UNESCO awardee for human

rights education. Its current Executive Director is

Sister Cress Lucero.

4. Families of Victims of Involuntary Dis-

appearance (FIND). This is a nationwide mass

organization of families, relatives, friends of the

disappeared victims and surfaced desaparecidos

advocating for human rights and social transforma-

tion. FIND has actively participated in the global

effort to eradicate the practice of involuntary disap-

pearance. It has a consultative status with the U.N.

Economic and Social Council (ECOSOC) and is active

in providing reports and demanding solutions to stop

involuntary disappearance during regular UN ses-

sions. This organization has continued to search and

conduct forensic identification missions in mass

graves and in places where victims have been buried.

It is currently working for national legislation to

criminalize forced disappearance. Nilda L. Sevilla is

its current Chairperson.

5. BALAY Rehabilitation Center. Estab-

lished in 1985, BALAY literally means “home” for the

victims of human rights violations. It emphasizes the

holistic approach in addressing problems of displace-

ments and is working together with other human

rights organizations and governmental bodies to-

wards achieving peace and social transformation.

This organization provides psychosocial rehabilitation

services, especially in areas where displacements

happen, and provides the basic psychosocial needs of

4

victim survivors of torture, forced disappearance, and

internal displacements arising from armed conflict,

forced eviction, political detention, extrajudicial

killings and summary execution. Lourdes de la Cruz

is its current Executive Director.

6. Amnesty International - Pilipinas. This

organization was formed in 1987, after the downfall

of the Marcos Regime, and is affiliated with Amnesty

International based in London. AI-Pilipinas under-

takes human rights education work and promotes

efforts for public awareness on human rights. It has

campaigned for the abolition of death penalty and for

the adoption of anti-torture laws, and has put to-

gether national reports of human rights abuses in the

country for international campaigns. Dr. Aurora

Parong is its current Executive Director.

7. Asian Federation Against Involuntary

Disappearance (AFAD). This is a federation of

organizations concerned in the issue of involuntary

disappearances in Asia. AFAD’s objectives are: (1) to

build and develop international solidarity among

organizations concerned with disappearances within

Asia, (2) to campaign against government measures

that perpetuate governmental impunity, and (3) to

work for the adoption of international instruments in

the United Nation system aimed at facilitating the

resolution of cases of involuntary disappearances and

preventing their recurrence. AFAD has eight national

organizations in seven countries covering South and

5

Southeast Asia. Aileen Bacalso is its current Secre-

tary General.

8. Medical Action Group. This organization

was formed in 1982 by a group of doctors, nurses, and

concerned individuals who saw the need for the

health sector to respond collectively and speak

against the grave human rights violations perpe-

trated by the Marcos regime. Since then, it has wid-

ened its membership to include nurses, dentists,

psychologists, health students, and health workers.

This Group has rendered health services to political

prisoners, urban poor, internally displaced persons,

and workers. Ederlina Fernandez is its current

Executive Director.

9. Alliance of Progressive Labor (APL). The

Alliance of Progressive Labor is a national labor

center that was established in 1996. It is committed

to promoting the union movement. APL is currently

affiliated with the Asian Labor Network on the IFIs

(ALNI) and fourteen campaign and issue-based

organizations involving local and international con-

cerns. Joshua Mata is its current Secretary-General.

®

STATEMENT OF THE CASE

In this interpleader action, assets valued at the

time of trial at about $35,000,000 held in a Merrill

Lynch account (in the name of “Arelma,” a shell

corporation) were awarded, after a protracted and

difficult discovery process and a bench trial, to the

6

members of a Class of Human Rights Victims who

were killed, disappeared, or tortured at the hands of

Ferdinand E. Marcos from 1972 to 1986, when he

governed the Philippines in a dictatorial fashion

through martial law.

Ferdinand Marcos declared martial law on

September 21, 1972 and proceeded to govern by

autocratic decree, issuing almost daily lists of indi-

viduals who were to be rounded up. The district court

explained that “MARCOS gradually increased his

own power to such an extent that there were no limits

to his orders of the human rights violations suffered

by plaintiffs in this action.” In re Estate of Ferdinand

E. Marcos Human Rights Litigation, 910 F.Supp.

1460, 1463 (D.Haw. 1995). The district court’s listing

of the various torture techniques utilized by Marcos

included the following:

1. Beatings while blindfolded by punching,

kicking and hitting with the butts of rifles;

2. The “telephone” where a detainee’s ears

were clapped simultaneously, producing a

ringing sound in the head;

3. Insertion of bullets between the fingers

of a detainee and squeezing the hand;

4. The “wet submarine”, where a detainee’s

head was submerged in a toilet bowl full of

excrement;

5. The “water cure”, where a cloth was

placed over the detainee’s mouth and nose,

7

and water poured over it producing a drown-

ing sensation;

6. The “dry submarine”, where a plastic bag

was placed over the detainee’s head produc-

ing suffocation;

7. Use of a detainee’s hands for putting out

lighted cigarettes;

8. Use of flat-irons on the soles of a de-

tainee’s feet;

9. Forcing a detainee while wet and naked

to sit before an air conditioner often while

sitting on a block of ice;

10. Injection of a clear substance into the

body a detainee believed to be truth serum;

11. Stripping, sexually molesting and rap-

ing female detainees; one male plaintiff testi-

fied he was threatened with rape;

12. Electric shock where one electrode is at-

tached to the genitals of males or the breast

of females and another electrode to some

other part of the body, usually a finger, and

electrical energy produced from a military

field telephone is sent through the body;

13. Russian roulette; and

14. Solitary confinement while hand-cuffed

or tied to a bed.

Id. Marcos fled the Philippines in March 1986, after a

series of “People Power” demonstrations filled the

streets of Manila to protest a rigged election, and he

8

went into exile in Honolulu, Hawaii. Hawaii was thus

the only place where personal jurisdiction could be

obtained over Marcos, and was the only location

where the Victims could pursue their claims in a

venue that would satisfy international requirements

of due process and fairness.

The claims of the Victims were vigorously con-

tested by Marcos’s attorneys, but the jury’s judgment

in favor of the Victims was affirmed on appeal and is

now final. See, e.g., Hilao v. Estate of Marcos, 25 F.3d

1467 (9th Cir. 1994), cert. denied, 513 U.S. 1126

(1995), and Hilao v. Estate of Marcos, 103 F.3d 762

(9th Cir. 1996). Since then, the members of the Class

have been attempting to collect their judgment, and

have active cases now in Colorado, Texas, Singapore,

and the Philippines, in addition to the present inter-

pleader action. Because of the difficulty of these

collection efforts, however, no distribution of any

compensation has thus far been made to any mem-

bers of the Class of Victims.

The Philippine National Bank and Arelma par-

ticipated actively in the present interpleader, but

offered no evidence whatsoever supporting the view

that the assets at issue had initially been obtained

illegally or improperly by Marcos. The Republic of the

Philippines and its Presidential Commission for Good

Government (PCGG) made several appearances in

the interpleader proceedings to assert their sovereign

immunity, but presented no evidence regarding the

origin of the disputed assets. The court of appeals

affirmed that the Human Rights Victims should be

9

awarded the assets. Merrill Lynch, Pierce, Fenner and

Smith, Inc. v. ENC Corporation, 464 F.3d 885 (9th

Cir. 2006) and 467 F.3d 1205 (9th Cir. 2006). The

court of appeals noted that the Class is “composed of

victims of a rough and rapacious ruler, who often

exercised arbitrary power.” Id. at 890. It emphasized

that “the Republic has not taken steps to compensate

these persons who suffered outrage from the extra-

legal acts of a man who was the president of the

Republic,” and explained that although the Arelma

assets “will scarcely satisfy” the judgment obtained

by the Human Rights Victims, id., at 893, “[njonethe-

less, the symbolic significance of some tangible recov-

ery is not to be disregarded, and if the recovery is

distributed pro rata among the individuals, it will

have monetary meaning for the poor among them.”

Id. at 893-94. The court of appeals affirmed that the

Republic and its PCGG should be able to invoke

foreign sovereign immunity, but determined (based on

its evaluation of the factors listed in Rule 19(b) of the

Federal Rules of Civil Procedure) that the Republic

and its PCGG were not indispensable parties and

that it had been proper for the district court to pro-

ceed with the interpleader action in their absence.

¢

SUMMARY OF ARGUMENT

This Honorable Court must not dismiss this case,

because to do so would allow any foreign government

to block every effort of victims of human rights

abuses — as well as all other judgment creditors — by

10

siriply claiming ownership of the assets at issue

without any evidentiary support for the claim what-

soever. Petitioners’ effort in the present case is par-

ticularly inappropriate and unacceptable because the

Republic of the Philippines (in an amicus curiae brief

it filed in 1987) encouraged the U.S. courts to provide

a venue for the underlying claims of the Human

Rights Victims and also because the Republic has

taken no steps to provide compensation for the Hu-

man Rights Victims, despite its obligation to do so

under international law. The Swiss Federal Court

and the U.N. Human Rights Committee have both

reminded the Philippine government of this obliga-

tion in the context of this case, but the Republic has

taken no action whatsoever to assist the Victims.

The U.S. Congress has explicitly provided juris-

diction for the underlying claims of the Victims in the

Alien Tort Statute, 28 U.S.C. sec. 1350, and in the

Torture Victim Protection Act (TVPA), Pub.L. 102-

256, 106 Stat. 73, and this Court has explained that

jurisdiction exists in U.S. courts for foreign victims of

torture and extrajudicial murder. Sosa v. Alvarez-

Machain, 542 U.S. 692 (2004). Human rights abuses

are continuing in the Philippines, and it appears that

the Philippine government does not yet accept its

responsibility to prevent such abuses. Allowing the

Human Rights Victims to collect a portion of their

judgment through the present interpleader action

will assist in confirming the importance of human

rights in the Philippines and around the world.

«

11

ARGUMENT

I. THE REPUBLIC OF THE PHILIPPINES

AND ITS PRESIDENTIAL COMMISSION

ON GOOD GOVERNMENT (PCGG) SHOULD

NOT BE ABLE TO BLOCK THE EFFORTS

OF HUMAN RIGHTS VICTIMS TO COL-

LECT THEIR JUDGMENT BASED ON AN

UNSUBSTANTIATED ALLEGATION THAT

ASSETS OF A FORMER DICTATOR BE-

LONG TO THE REPUBLIC.

Petitioners seek the dismissal of this inter-

pleader action based solely on their totally unsub-

stantiated assertion that the assets at issue were

obtained illegally by Marcos, that the Republic and

its Presidential Commission on Good Government

(PCGG) are thereby entitled to these assets, and that

the Republic and its PCGG were indispensable par-

ties requiring dismissal of the interpleader. If this

Honorable Court were to permit a foreign government

to disrupt a U.S. court proceeding based solely on

such unsupported allegations, it would be impossible

for U.S. courts to address issues related to assets

located in the United States. If the Court orders the

dismissal of the current proceeding, then every gov-

ernment on the planet — no matter how nefarious —

will have the power to block human rights victims

and other judgment creditors from ever collecting

their judgments. The Republic’s position is particu-

larly outrageous, because it actively encouraged the

U.S. courts to provide a venue for this litigation.

12

In the years immediately following Marcos’s exile

to Hawaii, the Philippine government (under Presi-

dent Corazon Aquino) actively supported the class

action lawsuit being pursued in Hawaii by the human

rights victims. In those early years, Philippine Minis-

ter of Justice Neptali A. Gonzales prepared a letter to

the Deputy Minister of Foreign Affairs, Leticia R.

Shahani, explaining that Marcos was not protected by

any form of immunity: “Marcos may be held liable for

acts done as President during his incumbency, when

such acts, like torture, inhuman treatment of detain-

ees, etc. are clearly in violation of existing law .. . the

government or its officials may not validly claim state

immunity for acts committed against a private party

in violation of existing law.” See Hilao v. Estate of

Marcos, 25 F.3d 1467, 1472 (9th Cir. 1994). Even

more significantly, the Republic of the Philippines

filed an amicus curiae brief in the U.S. Court of

Appeals for the Ninth Circuit in 1987, after the class

action case had been dismissed by the district court

on act of state grounds, urging the Ninth Circuit to

reverse the ruling of the district court. The Republic

stated that “foreign relations with the United States

will not be adversely affected if these human rights

claims against Ferdinand Marcos are heard in U.S.

cou ‘ts.” Amicus Curiae Brief Filed in 1987 by the

Republic of the Philippines in Hilao v. Marcos, No.

15039, Respondent’s Appendix (RA) 1. In the com-

plaint filed by the Republic in 1986 in the Southern

District of New York in Republic of the Philippines v.

Marcos, the Republic specifically alleged a gross

pattern of human rights abuses by Marcos, including

13

torture and summary execution. See 806 F.2d 344,

348 (2d Cir. 1986). This filing confirms the Republic’s

knowledge of Marcos’s conduct and its willingness to

have U.S. courts review this conduct.

The courts of the United States did provide a

venue for the Human Rights Victims during pro-

tracted litigation, and it has also provided venues for

the Republic to pursue claims to assets in the United

States, which the Republic has done repeatedly. (“The

Republic’s right in the United States to reclaim the

spoils of office from Marcos has been unquestioned

since Republic of the Philippines v. Marcos, 862 F.2d

1355 (9th Cir. 1988) (en banc).” Merrill Lynch, 464

F.3d at 892.) It is thus completely disingenuous and

manipulative for the Republic to argue now that U.S.

courts are inappropriate venues for the determination

of ownership of assets located in the United States. It

is particularly unacceptable to permit the Republic to

block such an action without making even so much as

an offer of proof with regard to its unsubstantiated

contention that it has a superior right to the assets.

II. COUNTRIES HAVE A CONTINUING OBLI-

GATION TO PROVIDE COMPENSATION

TO HUMAN RIGHTS VICTIMS WHO HAVE

SUFFERED ABUSES AT THE HANDS OF

PREVIOUS GOVERNMENTS.

Petitioners’ Brief refers (at 4) to the 1997 and

1998 decisions of the Swiss Federal Court regarding

assets in Swiss banks, but it fails to mention the

14

explicit conditions listed in those decisions regarding

the obligations of the Republic of the Philippines to

compensate properly the victims of human rights

abuses. Referring specifically to the judgment of the

Human Rights Victims underlying the present inter-

pleader, the Swiss Court stated clearly in its ruling

that the Philippine Government had a responsibility

to ensure that the human rights victims receive

adequate compensation for their injuries, that the

Philippine government had a duty to keep the Swiss

Government informed about the steps it took to

provide compensation to the human rights victims,

and that the Swiss Government should monitor the

situation to ensure that such compensation was

forthcoming. Swiss Federal Office for Police Matters

v. Fondation Maler, 1A.91/1997/odi (Swiss Federal

Court (Bundesgericht, Dec. 19, 1997), Joint Appendix

(JA) 64 (Ex. 47) at 84 para. 7a. The Swiss Court

explained directly that the Human Rights Victims

“have claims of indemnity of damages and the right of

fair process in prosecuting said claims under interna-

tional law,” specifically citing Articles 2 and 14 of the

International Covenant on Civil and Political Rights’

* Article 2(3Xa) of the International Covenant on Civil and

Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171, which has been

ratified by 160 countries, including the United States, the

Philippines, and Switzerland, says that:

Each State Party to the present Covenant under-

takes: (a) To ensure that any person whose rights or

freedoms as herein recognized are violated shall have an

effective remedy, notwithstanding that the violation has

(Continued on following page)

15

as well as the Torture Convention’ and Philippine

law. Id. at 84 para. 7a. The Swiss Court said without

qualification that “the Philippine government is liable

for indemnification of the victims, according to inter-

national law.” Jd. at 85 para. 7a. The Swiss Federal

Court went into this subject in further detail in a

decision it issued nine days earlier, explaining that

both the Philippines and Switzerland had duties

under international law to “safeguard[] human

rights” and that this duty is “incumbent upon .. . the

courts as executors of the international law regime.”

Federal Office for Police Matters v. Aguamina Corp.,

1A.87/1994/err (Swiss Federal Court, Dec. 10, 1997),

para. 7(c). The Swiss Court recognized that all parties

to the International Covenant of Civil and Political

Rights and the Torture Convention have a duty to

been committed by persons acting in an official capac-

FF

Emphasis added.

* Article 14(1) of the Convention Against Torture and Other

Cruel, Inhuman or Degrading Treatment or Punishment, Dec.

10, 1984, 1465 U.N.T.S. 85, says that:

Each State Party shall ensure in its legal system

that the victim of an act of torture obtains redress and

has an enforceable right to fair and adequate compen-

sation including the means for as full rehabilitation as

possible. In the event of the death of the victim as a

result of an act of torture, his dependents shall be en-

titled to compensation.

Emphasis added. The United States, the Philippines, and

Switzerland are all contracting parties to the Torture Conven-

tion.

16

ensure that victims of human rights abuse have a

right to establish their right to compensation through

competent judicial tribunals. Jd., para. 7(cXaa) and

(cc).

The Swiss Court also recognized in its decision of

December 10, 1997, that the Philippine judiciary has

“shortcomings” and that it is “reputed to be ponder-

ous and susceptible to corruption and political influ-

ence.” Jd., para. 7(cXee). For this reason, the Swiss

Court included as a condition of transferring the

money to the Philippines the requirement that the

Philippine government “regularly update” the Swiss

authorities on the procedures established “to compen-

sate the victims of human rights violations under the

Marcos regime.” Jd., para. 7(c)hh). These conditions

have never been fulfilled, and the Philippine Gov-

ernment has never provided any mechanism whatso-

ever to compensate those who suffered grievously

during the Marcos martial law period.

The responsibility of countries to allow victims of

human rights abuses to gain compensation for their

suffering is well established in international law. In

addition to the treaties cited by the Swiss court, this

principle is also found in Article 8 of the 1948 Univer-

sal Declaration of Human Rights, U.N.G.A. Res.

217A, which says that “Everyone has the right to an

effective remedy by the competent national tribunals

for acts violating the fundamental rights granted him

by the constitution or by law” (emphasis added).

Regional human rights treaties also emphasize the

right to redress for human rights violations, and the

17

consistent language in all the relevant human rights

treaties provides strong evidence that this responsi-

bility is a norm of customary international law. Arti-

cle 6(1) of the European Convention on Human

Rights, 213 U.N.T.S. 221 (1950), says that “[iJn the

determination of his civil rights ... everyone is

entitled to a fair and public hearing within a reason-

able time by an independent and impartial tribunal

established by law.”

Similarly, Article 25(1) of the American Conven-

tion on Human Rights, 144 U.N.T.S. 123 (1969),* says

that:

Everyone has the right to simple and prompt

recourse, or any other effective recourse, to a

competent court or tribunal for protection

against acts that violate his fundamental

rights recognized by the constitution or laws

of the state concerned or by this Convention,

even though such violation may have been

committed by persons acting in the course of

their official duties.

Decisions in the Inter-American system confirm that

the right to an effective remedy is a continuing one

that cannot be waived. The seminal case of the Inter-

American Court of Human Rights is the Velasquez

* The United States has signed, but has not yet ratified this

Convention. Under Article 18(a) of the Vienna Convention on the

Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331, the United

States is thereby “obligated to refrain from acts which would

defeat the object and purpose” of the Convention.

:

18

Rodriguez Case, 28 I.L.M. 291, para. 174(d) (1989),

which held that the American Convention on Human

Rights imposes on each state party a “legal duty to

... ensure the victim adequate compensation.” In this

decision, the Inter-American Court of Human Rights

emphasized that the duty to investigate human

rights abuses and compensate the victims of these

abuses continues despite “changes of government”

even if “the attitude of the new government may be

much more respectful of those rights than that of the

government in power when the violations occurred.”

Id. at 327-28 para. 184. The Republic of the Philip-

pines has never recognized or accepted these respon-

sibilities despite its clear obligation to do so.

On March 19, 2007, the Geneva-based U.N.

Human Rights Committee, which is entrusted with

interpreting and applying the International Covenant

on Civil and Political Rights (in a unanimous report

joined by 14 members of the Committee including the

U.S. member, Professor Ruth Wedgwood) said that

the Republic of the Philippines had violated Article

14(1) and Article 2(3) of the Covenant by imposing

unacceptable restrictions on the efforts of the Human

Rights Victims to file their U.S. judgment in the

courts of the Philippines for purposes of collection,

and the Committee reiterated that the Republic “is

under an obligation to ensure an adequate remedy to

the authors [the Human Rights Victims] including, —

compensation and a prompt resolution of their case on

the enforcement of the US judgement in the State party

[the Philippines].” Communication No. 1320/2004,

19

Human Rights Committee, CCPR/C/89/D/1390/2004

(April 3, 2007), RA-12, 23 para. 11.

The United States also has an obligation to

facilitate the efforts of the Human Rights Victims in

their efforts to collect their judgment, and a dismissal

of the present interpleader would be inconsistent

with that obligation. In the amicus curiae brief filed

by the Solicitor General in the present case, at 32 n.6,

it is contended (based on a citation to a 1990 Con-

gressional Record) that the U.S. obligation to provide

a remedy to torture victims is limited to torture

occurring in the United States. It is clear, however,

that Congress understood that the United States had

a broader obligation, because two years later, in 1992,

it enacted the Torture Victim Protection Act (TVPA),

Pub.L. 102-256, 106 Stat. 73 (1992), which explicitly

provides a remedy to any individual who is subjected

to torture or extrajudicial killing by anyone acting

“under actual or apparent authority, or color of law, of

any foreign nation.” Id. sec. 2(a) (emphasis added).

As this Court has explained, the TVPA “provid[es]

authority that ‘establish{es] an unambiguous and

modern basis for’ federal claims of torture and extra-

judicial killing.” Sosa v. Alvarez-Machain, 542 US.

692, 728 (2004) (quoting from H.R. Rep. No. 102-367,

pt. 1, p. 3 (1991)). This statute, along with the Alien

Tort Statute, 28 U.S.C. sec. 1350, provided the

jurisdictional basis for the claims brought by the

Human Rights Victims in the underlying case, and a

dismissal in the present case would cause those

statutes to become meaningless, because it would be

20

impossible for any victims to collect their judgment.

This Court has explained in Sosa v. Alvarez-Machain,

542 U.S. 592 (2004), that the Alien Tort Statute

provides jurisdiction for claims brought by aliens for

human rights abuses in their home countries if those

abuses violate widely-accepted international norms

with definite content, id. at 732, such as “torture,

genocide, crimes against humanity, and war crimes.”

Id. at 762 (Breyer, J., concurring). Providing a forum

in U.S. courts for the adjudication of such claims “will

not significantly threaten the practical harmony that

comity principles seek to protect” because “universal

criminal jurisdiction necessarily contemplates a

significant degree of civil tort recovery as well.” Jd. at

762-63 (Breyer, J., concurring). If this Honorable

Court were to dismiss the present case, the goal of

providing “civil tort recovery” will have been

thwarted.

Ill. HUMAN RIGHTS ABUSES ARE CON-

TINUING IN THE REPUBLIC OF THE

PHILIPPINES, AS DOCUMENTED AT A

HEARING HELD IN THE U.S. SENATE

AND A REPORT RECENTLY ISSUED BY A

U.N. RAPPORTEUR.

The recent surge in human rights abuses attrib-

uted to the Philippine military demonstrates the

importance of a judicial remedy in this case. On March

14, 2007, the Subcommittee on East Asian and Pacific

Affairs of the United States Senate’s International

Relations Committee held a Hearing on Extrajudicial

21

Killings in the Philippines, receiving witnesses who

confirmed that human rights abuses are continuing

in the Philippines. Those testifying provided reports

of hundreds of extrajudicial killings during the last

few years, with victims from all walks of life — farm-

ers, fishers, workers, indigenous persons, Moro

persons, journalists, human rights workers, lawyers,

doctors, teachers, church officials, women, and chil-

dren. It is widely thought that the Philippine military

is involved in these killings and that it operates with

the knowledge and support of the current Philippine

government.

The testimony submitted by T. Kumar on behalf

of Amnesty International contained the following

summary:

The number of attacks on leftist activists

and community workers rose sharply during

the last couple of years. Most of the attacks

were carried out by unidentified assailants

on motorcycles, at times wearing face masks,

who were often described as “vigilantes” or

hired killers allegedly linked to Armed

Forces of the Philippines (AFP). In some

cases, those attacked had reportedly been

under surveillance by people linked to the

security forces or had received death threats.

Those most at risk include members of

legal leftist political parties, including Ba-

yan Muna (People First) and Anakpawis

(Toiling Masses), other human rights and

community activists, priests, church work-

ers, and lawyers regarded by the authorities

22

as sympathetic to the broader communist

movement. ...

A climate of impunity shielding the per-

petrators of such killings deepened as inef-

fective investigations failed to lead to the

prosecution of those responsible. In many

cases witnesses were reportedly too fright-

ened to testify.

Amnesty International USA, Senate Hearing Testi-

mony — Extrajudicial Killings in the Philippines —

Strategies to End the violence, March 14, 2007, at

<http://www.amnestyusa.org/document. php?lang=e&id=

ENGUSA20070314001> (last visited Feb. 3, 2008).

About the same time, United Nations Rapporteur

Philip Alston issued a report on the extrajudicial

killings, implicating the Philippine military. Professor

Alston visited the Philippines in February 2007 and

issued a report characterizing the killings as “a grave

and serious problem,” stating that the Philippine

military “remains in a state of almost total denial .. .

of its need to respond effectively and authentically to

the significant number of killings which have been

convincingly attributed to them.” Press Statement

issued by Prof. Philip Alston, U.N. Special Rappor-

teur on Extrajudicial, Summary or Arbitrary Execu-

tions, Feb. 21, 2007, at 3, available at <http://www.

extrajudicialexecutions.org/news/Philippines_21_Feb_

2007 .pdf> (last visited Feb. 3, 2008). Professor Alston

also stated that President Arroyo has a responsibility

“to persuade the military that its reputation and

effectiveness will be considerably enhanced, rather

23

than undermined, by acknowledging the facts and

taking genuine steps to investigate.” Id. at 3-4.

Professor Alston explained that although the

exact number of killings cannot be determined, the

number who have been killed “is high enough to be

distressing” and that the type of killings alleged “is

corrosive in many ways” because it “intimidates vast

numbers of civil society actors, it sends a message of

vulnerability to all but the most well connected, and

it severely undermines the political discourse which

is central to a resolution of the problems confronting

this country.” Jd. at 2.

The continuing “denial” of the Republic’s leader-

ship and its military regarding the need to respect

fundamental human rights brings into focus the

importance of the present case and its role in promot-

ing respect for human rights in the Philippines and

around the world. All international human rights

treaties stress the importance of providing real

remedies for the victims of human rights and charge

governments and their courts with carrying out this

responsibility.

The members of the Class of Human Rights

Victims have been seeking compensation for 22 years,

since their complaint was first filed in the U.S. Dis-

trict Court for the District of Hawaii in 1986. For the

past dozen years, they have been diligently seeking to

collect the judgment awarded by a federal jury and

affirmed on appeal. The court of appeals has reviewed

the present interpleader and affirmed that the assets

24

at issue should be awarded to the Human Rights

Victims. A reversal of this decision would be directly

inconsistent with the treaty obligations of the United

States and the Philippines, and would be a huge

setback to the international efforts to enforce human

rights norms and protect the fundamental human

rights of every individual.

S

CONCLUSION

For the reasons set forth above, this Court should

not order dismissal of this action and should affirm

the ruling of the court of appeals.

Respectfully submitted,

MakkK S. Davis

Davis LEVIN LIVINGSTON

400 Davis Levin Livingston Place

851 Fort Street

Honolulu, HI 96813

(808) 524-7500

Counsel for Amicus Curiae

Philippine Human Rights Groups