Last week in a Boston courtroom, a jury found the mayor of a small town in southwest Haiti liable of killing one man and torturing and trying to kill two others. The plaintiffs – David Boniface, Nissandère Martyr, and Juders Ysemé – spent a decade trying to hold Jean Morose Viliena accountable. They filed criminal cases in Haiti and even asked the United Nations for help. But nothing worked. Until now.
The determined victims and their creative lawyers used a U.S. human rights law, the Torture Victims Protection Act, to finally find justice. The case provides a blueprint for victims to hold abusers accountable when every other option has failed.
Joining us to understand this case are two of the lawyers who made it happen. Daniel McLaughlin and Ela Matthews are attorneys at the Center for Justice & Accountability, a nonprofit organization that uses the law to fight human rights abuses.
Show Notes:
Last week in a Boston courtroom, a jury found the mayor of a small town in southwest Haiti liable of killing one man and torturing and trying to kill two others. The plaintiffs – David Boniface, Nissandère Martyr, and Juders Ysemé – spent a decade trying to hold Jean Morose Viliena accountable. They filed criminal cases in Haiti and even asked the United Nations for help. But nothing worked. Until now.
The determined victims and their creative lawyers used a U.S. human rights law, the Torture Victims Protection Act, to finally find justice. The case provides a blueprint for victims to hold abusers accountable when every other option has failed.
Joining us to understand this case are two of the lawyers who made it happen. Daniel McLaughlin and Ela Matthews are attorneys at the Center for Justice & Accountability, a nonprofit organization that uses the law to fight human rights abuses.
Show Notes:
Paras Shah: Last week in a Boston courtroom, a jury found the mayor of a small town in southwest Haiti liable of killing one man and torturing and trying to kill two others.
The victims – David Boniface, Nissage Martyr, Juders Ysemé – spent a decade trying to hold Jean Morose Viliena accountable. They filed criminal cases in Haiti and even asked the United Nations for help. But nothing worked. Until now.
Today we’re going to explore how determined victims and creative lawyers used a U.S. human rights law, the Torture Victims Protection Act, to finally find justice. The case and that law provide a blueprint for victims to hold abusers accountable when every other option has failed.
Welcome to the Just Security Podcast. I’m your host Paras Shah.
Joining us to understand this case are two of the lawyers who made it happen. Daniel McLaughlin and Ela Matthews are attorneys at the Center for Justice and Accountability, a nonprofit organization that uses the law to fight human rights abuses.
Daniel, Ela, thanks so much for joining the show today.
Daniel McLaughlin: Thanks for having us.
Ela Matthews: Hi, Paras. It's good to be here.
Paras: So can you tell us about the defendant?
Daniel: So the defendant, Jean Morose Viliena, was the mayor of a small town in Haiti. During his time as mayor, he started a campaign of persecution against those that he saw as a threat to his power, which included our three clients.
Paras: Tell us a little bit more about what happened in Haiti a decade ago.
Daniel: So the initial event that sort of sparked all of this was in July of 2007. And that day, there was a dispute between the defendant Jean Morose Viliena and a woman who was trying to clean up her trash. He smacked her in the face, tried to have her arrested, and David Boniface, as one of the human rights advocates, in the town came to observe the proceedings. During those proceedings, the defendant tried to have David Boniface thrown out of the proceedings because he was a human rights advocate. And that led to sort of an escalation where the defendant had associates, started threatening him, and told him that later on they would come for him. Later that night, David Boniface went to church with his mother, his brother, Ecclesiastes Boniface, remained at the family home and the defendant led an armed group of men to the family home, called out for David Boniface, who wasn’t present. Ecclesiastes, his brother, came out not knowing what was ongoing, and the defendant, his associates, shot and killed him and then crushed his head with a rock.
Paras: That wasn't the end of Viliena’s attacks. The opposition political party had set up a radio station in the town of Les Irois. And it sometimes broadcast commentary that was critical of Viliena. What happened next?
Daniel: In April of 2008, he led an armed group of men, distributed weapons to them, and then led them in their attack on the radio station. And this radio station was housed in the second of our clients’ homes, Nissage Martyr. And during this armed attack on the radio station where they destroyed the radio station, they also tortured, violently beat both Nissage and Juders. And then as they were attempting to flee the defendant ordered one of his associates to shoot them, and the associate with a shotgun shot Nissage Martyr, which led to the amputation of his leg, and shot Juders Ysemé, which led to him being blind in one eye, and having multiple, dozens and dozens of pellets from the shotgun blast encrusted into his skin, his scalp. And many of those pellets remain there because they're too deeply placed to be removed.
Paras: The lawsuit filed by the victims alleged a third incident that happened in November 2009. And this is after one of Viliena’s associates had passed away. What happened next?
Daniel: The defendant’s associates rampaged through the town and set fire to 36 homes, all of which belong to the opposition party, the Struggling People's Party, and not a single home belonging to either defendant, his associates or anybody associated with his party. The Modérés Party was burned down that night. Amongst the 36 homes were the three homes of our plaintiffs.
Ela: Originally, one of the plaintiffs was Nissage Martyr. He unfortunately died under suspicious circumstances the day after the defendant was served with the complaint in the US case. His son, Nissandère Martyr, stepped into his shoes as the plaintiff in his place.
Paras: What happened to Viliena after all these events?
Daniel: You know, since 2007, which was the killing of David Boniface’s brother, Eclesiaste Boniface, our clients had submitted upwards of a dozen different complaints, investigation notes, both with the domestic proceedings in Haiti for both the killing, the attack on the radio station and the mass arson, but that also submitted information to United Nations bodies, the Inter-American Commission and in fact the Inter-American Commission issued precautionary measures against Haiti, telling—ordering Haiti to take steps to try to prevent, you know, further threats of retributive violence against our clients and their family members. But unfortunately, no, no such steps were ever taken.
The defendant, after being briefly arrested and then released, following political pressure, fled to the US in January 2009 and then continued to go back and forth. But there were still these pending criminal charges against him in Haiti, at least on paper. And he was in fact declared a fugitive by one of the Haitian courts. But in August of 2012, then acting president named him as an interim executive agent, which is basically naming him as the mayor of Les Irois. And so the defendant continued to serve as the mayor of this small town, despite the fact that one, there were active criminal proceedings against him, and two, he didn't even reside in that town anymore.
And I think that's sort of a testament to the way in which those who are politically connected can continue to hold on to power. But I think part of why we saw, CJA, this case as being sort of emblematic given that it's based on atrocities that are committed and quite a small, isolated remote town in southwest Haiti, was that it bore the hallmarks of this sort of broader system of impunity that seems to reign in Haiti for politically connected individuals like the defendant.
Ela: The cases in Haiti kind of proceeded, but he was obviously free, and that was when we, CJA, along with our pro bono counsel and our clients filed this US civil lawsuit in 2017. So finally, he was faced accountability, and our clients faced him in court in March of this year. Just trial began on the thirteenth of March and a jury then found him legally responsible for the events at issue—for most of the events at issue in this case. The jury returned a verdict on that, finding him responsible for that extrajudicial killing of Ecclesiastes Boniface, the brother of David Boniface, for the attempted extrajudicial killing and torture of Juders Ysemé and Nissage Martyr and held him liable to the tune of $15.5 million, which includes an award of $11 million in punitive damages. And the jury didn't find him liable for the arsons.
But, you know, that's still a pretty tremendous amount, kind of an award and recognition of the harm that he did inflict on our clients and on the community of Les Irois. And then the day after this verdict was returned, he was actually arrested by the Department of Justice for immigration fraud, based on the fact that he had lied about his role and connection to the human rights abuses that took place in the community of Les Irois.
Paras: For over a decade, he was able to go back and forth between the United States and Haiti, as you said, with impunity. How common is that for individuals who are accused of committing human rights violations abroad?
Daniel: I think, sadly, I think it's fairly common in the Haitian context. So the the statute that we use to bring a lawsuit against him here in the US is the Torture Victim Protection Act. And that statute requires that plaintiffs first exhaust local remedies where the atrocities took place. And so you can show that by either showing that they have exhausted all those local remedies or that it's futile to do so. And there was a ruling by our court based on both fact and expert evidence that was provided at the summary judgment stage, where the court concluded that it was futile for the plaintiffs to try to exhaust local remedies. And it was futile because one, of the corruption that's endemic in the Haitian judicial system and two, because of the threats of retributive violence against human rights advocates like our clients who are seeking to hold politically connected individuals to account in Haiti. We're just up against a system that would not allow these kinds of human rights cases to go forward politically, particularly in this political climate.
Paras: Tell us more about the Torture Victim Protection Act. How does that law work?
Ela: Sure. So the Torture Victim Protection Act essentially codified and expanded what is called the Alien Tort Statute for two specific human rights violations: torture and extrajudicial killing. So it allows foreign plaintiffs and US citizen plaintiffs who have been the victims of torture or extrajudicial killing in abroad, to bring cases against defendants who committed that torture or extrajudicial killing if the defendant is in the United States, whether that's because they live here or because they're passing through, or because they have some significant connection to the United States such that a US court can have personal jurisdiction over them.
Paras: Right, just to summarize, the Torture Victim Protection Act, the TVPA, allows plaintiffs who have suffered human rights abuses abroad to sue their abusers in US courts. Why did the US create this type of law?
Daniel: It's an incredibly significant tool in the ability for us to make use of US legal tools, and put those at the service of victims of atrocity crimes when there's this connection with the US. Because we don't want the US becoming a safe haven for torturers and those who commit extrajudicial killings or attempted extrajudicial killings, we want to have a path to be able to hold them liable. And unfortunately, the Department of Justice rarely uses the statutes that it has on the books in terms of bringing substantive criminal charges. And so oftentimes, the last and only recourse that clients such as ours have are to make use of the civil route and make use of the Torture Victim Protection Act to finally have their day in court, to have a federal judge and jury acknowledge the harms that they suffered, and to hold the defendant responsible for those harms and award damages for those harms.
Paras: How successful are these types of cases? In this instance, you went all the way to trial, which is sometimes rare for lawsuits, a lot of lawsuits get dismissed before trial for various reasons. But you went to trial here, and you actually got a $15.5 million verdict. So how common is that?
Ela: We have obtained very favorable verdicts for the plaintiffs in our cases. And when we say favorable, I think we're less focused on the amount of the award, but more so focused on the recognition that these cases bring for our clients. And that they've been able, as Daniel said, you know, to use the US legal system, and have their day in court where a fair and impartial either judge or jury has actually decided on the truth of their claims, and recognize the harm that they've suffered, which, given the context that we're often talking about where there isn't a fair and impartial legal system where the atrocities happened, that's super significant and shouldn't be understated.
Paras: What does this case tell us about the larger trend of human rights cases in US courts?
Daniel: I think it solidifies the fact that there are some statutes like the Torture Victim Protection Act that have teeth, that can be made use of where individuals who long thought that they were immune from suit or operated above the law, are finally held to account. But it's a particularly, you know, it's a quite limited tool. You have some prerequisites. I mentioned the exhaustion of local remedies. In addition, you know, the actor has to have been acting under the color of foreign law, meaning that they were, you know, typically a foreign official, and then their statute of limitations issues. So, a lot of things have to align, not the least of which is to have clients who have the dedication to pursue these things over, you know, first in Haiti than at the regional human rights level, and then into the US, and for our clients, it was 15 years of diligent efforts to try to hold them accountable.
But in cases where you have that sort of determination, there are real life statutes that can be used to have those moments of accountability. I think it also is a testament to the ability of organizations like CJA to work in partnership with local organizations. We had the Bureau des Avocats Internationaux, which is a local Haitian, very well regarded organization that had represented the clients in the domestic proceedings. And so these kinds of suits also need sort of, you know, partnerships between organizations such as ours and others that are located in the country where the atrocities took place. And that sort of transnational collaboration and partnership, I think has continued to rise. And it's something that we very much embrace, and are very thankful to have the support of our local partners.
Paras: Where do you see the future of these types of cases going?
Ela: It really depends on the context from which the case is being brought. I think, you know, as Daniel mentioned, these cases aren't brought in isolation by US organizations, we typically work in broad-based coalitions with actors in the countries where the atrocities took place. In the Haiti context, we worked with the AI. But in other contexts we work with typically, you know, victims and survivors groups, as well as other international organizations that are working in this space. And I think more and more we are seeing US civil litigation being one of many levers that is being kind of pulled on in order to further and push accountability in other countries, or, you know, we hope in the context of Haiti, it will be kind of a pull for the Haitian system to begin to, you know, move forward with its own accountability processes if possible, and when the situation begins to improve there. So I think that's one kind of avenue that we're starting to see where US civil litigation really begins to have an impact on the situation in the countries.
I think the other thing is that it's not going anywhere, we're not seeing fewer Torture Victim Protection Act cases, we're not the only organization that brings these cases. And I think as their as more practitioners begin to explore avenues for accountability outside of the Alien Tort Statute, I think we'll see more and more cases being brought under the TVPA. And more, more recent cases, a lot of cases brought under the TVPA have been very historic. And we've also seen some interesting developments, which maybe Daniel should talk about where the kind of under color of law angle of the TVPA requirement of the TVPA is being, I wouldn't say broadened but interpreted in a way that means that not just state actors are being held liable. So I think there are some interesting ways in which the Torture Victim Protection Act is being used and will continue to be used going into the future.
Daniel: We had a recent case where, for the first time, a US court found that Colombian state actors were operating in a symbiotic relationship with Colombian paramilitaries and found that the acts of the Colombian paramilitaries, which included widespread torture and killings of civilians, could be qualified as you know, individuals acting under color of law and so satisfied the Torture Victim Protection Act requirement of color of law. And so some of that broadening that Ela is referring to is clearly you know, if you are the mayor of a small town, if you are an army official, that typically satisfies the color of law requirement.
But if you are one of the sort of paramilitary organizations that operates on the outskirts, and kind of in the shadows, those actions, particularly if they're funded and directed by government officials, will still qualify as color of law. And so we can then use the Torture Victim Protection Act to hold individuals who are acting in these sort of paramilitary capacities responsible for their crimes, assuming that you know, personal jurisdiction and the like is also satisfied.
Paras: Is there anything else that we haven't touched on yet that you'd like to add?
Daniel: I think for many, many years, these criminal charges were seen as the gold standard and many of our colleagues in Europe and other places, where they have a civil party system, where the civil track and the criminal track are kind of joined together, for them, sometimes, you know, only bringing a civil suit is is a little bit odd and a little bit different. But I think through these repeated victories, there's been sort of a highlighting of the value of bringing civil cases. Some of the benefits are that, you know, we as the lawyers are directly representing the interests of the clients. And so the lawsuit can better I think, in some cases reflect what the clients actually want out of the lawsuit, the values and facts that they want to highlight. And that's harder to do if you're dependent on a criminal prosecutor to bring those charges, because you know, you could feed them information, but ultimately, at least in the US system, the ultimate determination of whether to bring charges, and if so, kind of how to litigate them is left to the government official. And so, in some ways, you're sort of second fiddle to that.
And the TVPA allows us, again, to sort of put what the clients want front and center, and then also to anchor that in some of the sort of broader, systemic issues we're trying to highlight. So for example, having experts discuss the broader weaknesses of the Haitian judicial system is both helpful to our clients’ case, because we need to show exhaustion, but also goes to some of the more emblematic nature of why this case was of interest to CJA, in addition to obviously having incredibly courageous and inspirational clients.
Paras: Daniel, Ela, thanks so much for joining the show today.
Ela: Thanks for having us.
Daniel: Thank you.
Paras: The Just Security podcast is produced in partnership with NYU’s American Journalism Online program. AJO trains students to become world class journalists, no matter where they live or work. Find out more about AJO, and how you can apply, in our show notes.
This episode was hosted by me with co-production and editing by Tiffany Chang and Michelle Eigenheer. Our music is the song “The Parade” by Hey Pluto!
Special thanks to Clara Apt, Megan Corrarino, Beatrice Lindstrom, Samantha Lint, Alex Kapelman, Ela Matthews, Daniel McLaughlin, and Ben Montoya.
If you enjoyed this episode, please give us a five star rating on Apple Podcasts, or wherever you listen.