Filartiga v. Pena-Irala established the idea that domestic tort suits might be brought under the Alien Tort Claims Act ("ATCA") against those accused of violating human rights norms. But what is the legacy of this case in an era of military privatization? Are there available legal responses to what we might call the privatization of torture? In the Abu Ghraib prison in Iraq, where detainees were tortured and abused, the individuals involved in the torture included not only members of the military, but contractors hired from the private sector. Because U.S. constitutional scrutiny traditionally applies only to state actors, privatization has been seen as potentially undermining constitutional oversight. Moreover, because many international human rights are framed as rights against state overreaching, the turn to private actors might appear to present a significant problem for legal accountability. Yet, military outsourcing may not, by itself, pose quite as serious an impediment to accountability. To the contrary, human rights abuses by private contractors may actually be more readily subject to legal action than abuses by official governmental actors, both through civil suits under the ATCA to redress violations of international human rights law, and through civil and criminal litigation to redress violations of domestic law. Using the Abu Ghraib prison abuse as a case study, this Essay will compare the possible forms of legal accountability for official governmental actors and private contractors, and suggest that the latter are at least as likely, and perhaps more likely, to be held accountable for abuses.
Laura Dickinson, Filartiga’s Legacy in an Era of Military Privatization, 37 Rutgers L.J. 703 (2006).