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					                      UNITED STATES DISTRICT COURT
                      SOUTHERN DISTRICT OF FLORIDA

                    CASE NO. 99-0528-CIV-LENARD/SIMONTON

capacity as personal representative of
the Estate of Winston Cabello, and in
,her individual    capacity, ELSA





      THIS CAUSE is bcforethe Court on the Motion to DismissSecondAmcnded

Complaint(D.E. 136),filcd November2, 2001 by DetendantArmando Fernandez

On Deccmber12,2001,Plaintiffs ElsaCabello,Karin CabelloMoriarty, Aldo Cabello,and

lita Cabello llarrueto filed a Response.On January15, 2002, Defendantfiled a Reply.

Having reviewedthe Motion. the Response, Reply, and the record.the Court finds as


       T.    Factual Background

      Thefollowing tactualallegations                            Amended
                                     derivefrom Plaintiffs' Second      Complaint,

filed September17, 2001 This dispute arisesout of the eventssurroundingthe alleged

executionof Winston Cabclfo ("Cabello" or "decedent")on October 7.. .1973. Prior to

September I. 1973, Cabello worked as an economistappointedby the governmentof

PresidentSalvadorAllende to serveas Director of the Regional Planning Office for the

                region in Copiap6,Chile. (2nd Am. Compl. ~24.: On September
Atacarna-Coquimbo                                                         II,

1973,President Allende was ousted in a coup d'etat led by Chilean military officers, whereby

GeneralAgosto Pinochctseizedcontrol and beganruling Chile asa military junta. (~26.)

                                           and         in
One day after thc coup, Cabellowas arrested incarcerated the Copiap6jail. (~27.)

Within a few weeks,he was transferrcdto the Copiap6military garrison. (, 28

        Following the coup d'etat, in October, 1973,a squadof military officers headedby

ChileanArmy GeneralSergioArellano Stark embarkedupon what becameknown as the

"Caravan ofDeath." (~2. The squadtraveledto a numberof cities in northernChile, where

                                        judicious killing, torture, and abuseof various
military officers engagedin acts of extra

                               due                 or
individualswho wcre incarcerated to their perceived actualoppositionto the militaIy

                                        Larios accompanied Caravanof Deathto
junta. (, 30.) DefendantAnnando Fernandez                the

northernChileancities, including Copiapo,and servedas bodyguardto GeneralArellano.

(~ 34    Defendant "was aware of the deathsof the prisonersat or near the time of the

        visit to eachof the cities" and"cngagedin actsincludingactsof violencedesigned

          harm,torture, and result in the deathsof the prisoners. (~) Whilea member
to in.jure,                                                     "

the Caravan, Defendant was anned with various weapons, including a £2rYQ,a "short, curved

                  to                                                 a
knife. . . designed inflict woundstha~althoughultimately fatal, cause slow andpainful

death." (, 35.)

       On October 16, 1973,Detendantand five other members of General Arellano's squad

arrived at the Copiap6 military garrison. (, 36. They instructed local military officers to

providcthemwith the prisoners'files~and then selected                including

Cabello. for execution.~    37    All thirteen prisonerswere professionalsor community

       selected executionaspart of the squad'sscheme eliminate oppositionto the
leaders,       for                                  to

 'inochetregime. (, 38 During thc night, Cabelloand otherprisonerswere loadedonto a

military truck, driven about tcn minute5 outside ofCopiapc>,and ordered to get off the truck.

:1i42.) When Cabello refused to get off the truck, he was slashedwith a £.Q.[YQ. 43.) The

bodiesof Cabelloandthe otherprisonerswere guardedat a military facility until they were

removed to the Copiap6cemetery. (, 44.

      On October 18. 1973. the local Copiap6 newspaperpublished an announcement

falsely indicating that thirteen political prisonershad beenkilled "while trying to escape

during their transfcr from detention in Copiap6 to anotherprison (, 45.) Shortlyafter

        deathin 1973.his family received deathcertificateindicatingthat he was
Cabello's                               a

executed the Chileanmilitary. (~46         In 1985. the decedent's family received a revised

death certificate identifying the cause of death as a gunshot wound. (~)   Once the civilian

government under the leadership of President Patricio Aylwin replaced General Pinochetts

military regime in 1990, the Chilean government grdDtedrequests to exhume the bodies of

CabeUo the other twelve political prisonerskilled on October 17, 1973. (~49.) The

exhumation revealed that many of the victims were slashedwith corvos, but did not indicate

whether the victims had been killcd during an escapeattempt. (~50.) In 1991, the family

received a final death certificate lacking reference to the cause of death. (~49.)

       Bern'een 1973 and 1990, Chilean military authorities deliberately concealedthe

decedent'sburial location from his family. (, 47.: The Chileanmilitary government 1978

                                 and         of
alsogaveamnestyto the pcrpetrators accomplices criminal actscommittedbetween

.September11, 1973 and March 1O,1978. (,; 56. On August24. 1990,the ChileanSupreme

             that   of     to
Courtextended decree amnesty humanrights violationscommittedby the military

during the foregoing period. (~)      Plaintiffs thus allege that they are without adequate

remedies Chile. (~)

       Defendantresignedfrom thc Chileanmilitary in or about January,1987,by which

time had risen to the rank of major. (~14.) At the time of his resignation,he admitted

publicly that hc had beena memberof GeneralArellano's squadin October, 1973

        secretlycntered UnitedStates or aboutJanuary,1987and lived in an
Defendant              the         in

undisclosedlocation underthe protectionof the U.S. Government. (, 15.) On or about

February 4, 1987. he plcd guilty to being an 'accessoryafter the fact" to the

[Directorate ofNatlonallntelligence ]-sponsoredcar bombing in Washington, D.C. that killed

the ex-Chilean Ambassador to the United States, Orlando Letelier, and his assistant, Ronni

KarpenMoffit. (, 16.) Currently,             in
                                       resides Miami,Florida. ~,                 10.

      II.    Procedural History

             A.               Relatedto Amended
                    Proceedings                Complaint

      'lbe following Plaintiff.~filed the original Complaint in this action on February 19,

1999: thc Estate of Winston Cabello; Elsa Cabello, mother of Winston Cabello, a naturalized

U.S.       who residesin California; Zita Cabello Bamleto. sister of Winston Cabello,a

          U.S. citizenwho resides Califomi~ in her individualcapacityand in her
naturalized                     in

capacityas the personalrepresentative the Estateof Winston Cabello; Karin Cabello

Moriarty. sister of Winston Cabello. a naturalized U.S. citizen who reside.~ California; and

Aldo Cabello,brotherof WinstonCabello,a Chileancitizenwho is a legalpermanent

                            residing in California.
residentof the United States,

      Plaintiffs filed a seven-claimAmendedComplainton April 7. 1999.alleging causes

                                                        humanity;cruel, inhuman
of actionfor: extrajudicialkilling; torture;crimesagainst                      or

degradingtreatmentor punishment;wrongful death; intentional infliction of emotional

diS1ress; civil conspiracy. On April 24, 2000,the Court dismissedthe wrongful death

andcivil conspiracyclaims basedun Plaintiffs' notice of voluntary dismissa]

       Defendant filed a Motion to Dismiss for Lack of Subject Matter Jurisdiction (DE. 22)

and a Motion tor Summary Judgment,or, in the Alternative, a Rule 12(b)(6) Motion to

Dismi~s(D.E. 19) on May 24, 1999 On August 10, 200I, the Court grantedin part and

deniedin partthe Motion to Dismissfor lack of SubjectMatterJurisdiction,anddeniedthe

                Judgment Rule 12(b)(6)
Motiontor Summary      and           Motionto Dismiss. (D.E. 120.) The

    Court denied the Motion for SummaryJudgmentwithout prejudice to afford Plaintiffs

           time for discovery. The Court dismissedall claims by the Estateof Winston

                                             and       the
    Cabello('"theEstatc")for lack of standing, dismissed intentionalinfliction of

"emotional   distressclaim astime barredunderChileanlaw. Thetorturc claimwasdismissed

                              it           by
    [or lack of standingbecause was asserted the Estatealone. As a result of the Court's

August lOth Ordcr, only three claims remained: extrajudicial killing, crimes against

humanity. and cruel, inhumanor degradingpunishmentor treatment. The Court directed

Plaintiffs to file a SccondAmendedComplaintby August 27,2001 On August 21.2001,

                           Motion to Strike,in part, striking Plaintiffs' prayerfor
the Court grantedDefcndant's

attorney'sfees. (DE. 122.)

                B.             AmendedComplaint

         The SecondAmended Complaint contains certain amendedfactual allegations}

Plaintiffs now asserteight claims for relief:

         Claim I   -   Extrajudicial Killing, brought by Plaintiffs Elsa Cabello, Karin Cabello

Moriarty, and Zita Cabello Baruetto,in her individual capacity,under the Torture Victim

ProtectionAct ("TVP A "). Pub. r 102-256,Mar. 12, 1992, ) 06 Stat. 73 (codified at 28

V.S.C. § 1350 note).

         ClaimII   ~   Extrajudicial Killing, in violation of customaryinternationallaw, Article

    Plaintiffs conceded Chileanlaw appliedto all non-federalclaims in the AmendedComplaint.
2                         Plaintiffs no longer allegethat Defendant
    Of particularrelevance,                                              ly
                                                                  personal killed their decedent
with a £Q!.YQ, that hc was in the Witness Protection Program from 1987 until recently.

 6 of the InternationalCovenanton Civil andPolitical Rights ("ICCPR") and the TVPA, by

 Zita CabelloBaruetto,in her capacity as personalrepresentative the Estate,underthe

 Alien Tort Claims Act C"ATCA"),28 V.S.C. § 1350.

        ClaimIII - ExtrajudicialKilling, in violation of customaryinternationallaw. Article

                      Covenanton Civil and Political Rights("ICCPR") and the TVPA, by
 6 of the InternationaJ

Adlo Cabello,underthe ATCA

        C]aimIV    -                                  intemationa]
                       Torture,in violationof customary          law, Article 7 of the

            (the "T ortureConvcntion andthe TVPA. by Zita CabelloBaruetto,in her
or Punishment                       "),

                               ofthc Estate.underthe A TCA;

Zita Cabello Baruetto, in her capacityas personalrepresentative the Estate,under the


      Claim VI - CrimesAgainstHumanity,in violation of customaryintemational1aw,

Aldo Cabello,underthe ATCA~

      Claim VII - Cruel, Inhumanor DegradingTreatmentor Punishment, violation of

customary international law, by Zita Cabello Baruetto, in her capacity as personal

representative the Estate,underthe A TCA; and

      Claim VIII   - Cruel, Inhumanor DegradingTreatmentor Punishment,in violation of

customaryinternationallaw, by Aldo Cabello,underthe A TCA

       III.   Parties' Arguments

       Defendantassertsthat the SecondAmendedComplaint fails to statea claim upon

which relief may be granted      Plaintiffshavcchanged numberof key factual
                           because                   a

                                                     contends he cannotbe held
allegationsfrom the AmendedComplaint. First. Defendant       that

liable for actstaken pursuantto ordersof his military superiors As Plaintiffs no longer

allege that Defcndant personally killed their decedent.he arguesthat he cannot be held liable

in tort for '"indirect participation" in the murder. Second,Defendant maintains that Plainti tTs'

                                                               Plaintiffs now concede
claimsaretime barred,and not subjectto equitabletolling, because

'that Defendanthas beenarnenablc service of processin the United Statessince 1987,

               argues Zita Cabcll0Bamleto,aspersonal
Third, Defendant     that                                       ofd1c Estate,

lacks standingto assertclaims for torturc, crimcs againsthumanity, or cruel, inhuman or

degradingtreatment,becauscChilean law doesnot recognizeher as a beneficiary of the


       Plaintiffs argue,first. that an individual who indirectly participatesin humanrights

violations may bc held liable under internationallaw. Second,Plaintiffs assertthat their

                                       previouslystatedby this Cow1. Third. Plaintiffs
claimsarenot time barred.for the rcasons

contendthat the standingis.c;uc controlled by fcderal or Florida law. ratherthan Chilean

law, and, as such, the Icgal repr~entative of the estatehas standingto bring the claims

asserted the SecondAmendedComplaint.

        IV.                    -
               Motion to Dismiss Standard of Review

        Pursuantto FederalRule of Civil Procedure12(b)( a defendantmay move for

dismissal a claim that fails to statea claim uponwhich relief canbegranted.TheEleventh

Circuit hasclearly articuiatedthe ~tandard review for a Rule 12(b)(6)motion to dismiss

        "The standard review for a motion to dismissis the samefor the appellate
        courtasit is for the trial court." Stephens DeQ'tof I lealth & HumanServs.,
        90 I F.2d 1571. 1573(11th Cir. 1990). A motion to dismiss is only granted
        whenthe movantdemonstrates         "beyond doubtthat the plaintiff canprove no
        setoffact!\ in supportof his claim which would entitle him to relier." ,CQ~
        v. Gibson,355 U.S. 41. 45-46 (1957).

II~v.                Entm't Com.. 139F.3d 1385,1387(I Ith Cir.), cert. denied,525 U.S.

                                   the          in         complaintandall
1000 (1998). "On a motionto dismiss, factsstated appellant's

reasonable         therefromare taken as true.~ St~heDS, 901 F.2d at 1573.

                           the                              AmendedComplaintand
Accordingly,theCourt accepts faclsstatedin Plaintiffs' Second

all reasonableinferences therefrom as true.

        v.    Analysis

              A.      Equitable Tolling

        In the August 10, 2001 Order Granting in Part and Denying in Part Defendant's

Motion to Dismiss.the Court found that the TVPA's ten-yearstatuteof limitations should

be equitably tolled duc to, inter ali~ the Chilean military's deliberateconcealmentof the

         burial locationfrom Plaintifts, who wereunableto view the decedent's
decedent's                                                                  body until

                          by           of
1990,andthe confusioncaused the issuance threedifferent deathcertificatesbetween

1973 and 1991. The Court explicitly found that, "once the civilian governmentunder the

leadershipof President Patricio Aylwin replaced General Pinochet's military regime in 1990,

the tolling ceased. the limitations period commenced (D.E. 120 at 40. "In addition.

theCourt fmds that Defendant'sstatusin the WitnessProtectionProgramsinceFebruary4,

1987until a time shortly before the Complaint was filed. created a period in which Defendant

wasostensiblyabsentfrom this jurisdiction. in that he could not be served." (ld.)

       Defendantarguesthat sincethe SecondAmendedComplaint no longer allegesthat

        was                              and             that      was
Defendant in the WitnessProtectionProgram, therebyconcedes Defendant

amenableto service of process in thc United Statessince 19871principles of equitable tolling

shouldnot apply. Defendant~s              contravenes Court's clearholdingthat
                                   however,         the

                  and the ten-yearlimitations period commenced, 1990, The Court's
the tolling ceased,                                           in

finding with respect Defendant'sparticipationin the WitnessProtectionProgramwasnot

crucial to the Court's detennination; rather, it merely provided further support for application

of the equitabletolling principle,

                            cited by Defendant
       Noneof the authorities                       a
                                             compels differentconclusion.] In

                   relics on a non-bindingSeventhCircuit case,Carla v. Baxter

         Co~.. 920 F.2d 446 (7th Cir. 1990),to arguethat equitabletolling appliesonly

           suggest the Court shouldreconsider ruling on theeqwtabletolling issuein light
3 Defendants     that                       its
of TRW Inc. v. Andrews, 122 S. Ct. 441 (200I), where the SupremeCourt declined to apply a
general discoveryrule in thecontextof theFajrCredit ReportingAct" 15V.S.C. § 1681p. TheCourt
finds that TRW Inc. is inappositeto the instant case becausethe Supremc Court specifically
          the          and
addressed language structureof the FCRA provision, which explicitly deljneates two-year   a
';~i~~+;ionperiod triggered by the date of discovery in cases where a defendant willfully
misrepresents material information. rg.at 447-48. The SupremeCourt did not purport to alter the
generalprinciples of equitabletolling, nor did it direct lower courts to apply them differently.

for a shortperiodof time aftera plainliff hasobtained, by due diligencecould have

obtained,the infonnation necessaryto file the lawsuit. (Def.'s Reply at 5               In~

howcver.JudgcPosner                   a
                               between situationwherea plaintiff, throughno fault

             has                                      to
ora defendant. beenunableto obtaininfomlation neces~ary decidewhetherhis injury

is due to the defendant'swrongdoing, and one where a defendant takes active stepsto

preventthe plaintiff from suing in time.4~ at 450-53. In the Connercontext, the limitation

period is tolled only during the period in which the plaintiff could not obtain the infonnation;

                                                  postpones accrualof the limitation
in the lattercase,the defendant'sact of concealment       the


         Theinstantcasefits within the lattercategory, the Courtdetenninedin theprevious

Order that the pre-1990 Ch ilcan government's concealment of the decedent's burial location

and the accuratecauseof deathpreventedPlaintiffs from bringing this action untjl 1990.

Accordingly. ten-yearlimitation perioddid not beginto accrueuntil 1990. Since

Plaintiffs broughtthis action within ten years,and Defendanthasnot presented Court

with any compellingreason alter its previousruling that the limitation periodcommenced

in 1990.the Court finds that the claims allcged in the SecondAmendedComplaint arenot

4             calls the former situation "equitabletolling" and the latter "equitableestoppel." Ida
a: 450-51. The termsare often usedinterchangeably.~ Browning v. AT&T Paradyne,120F.3d
222, 226 (I t th Cir. 1997)("AT&T appears be confusing,as apparentlydo many litigants and
                      of                                                              Report
courts,the docb'ines equitabletolling and equitableestoppel"). For instance,the Hou.-.e
on the TVPA speaksin terms of "cquitable tolling remedies"to remedy situations of fraudulcnt
concealment.H.R. REP.    No. 102-367(1),1992 U.S.C.C.A.N. 84,88. Without getting entangledin
a debateover semantics,the Court addresses matcrial issueof whether the TVPA's ten-year
limitation period barsthe instantaction.

    time barred.

                   B.     Liability for Indirect Participationin HumanRightsAbuses

    torture, crUDesagainst humanity, and cruel, inhuman, or degrading treatment or punishment.

    TheCourtruled previouslythat cachof thesecauses action,with the exceptionoftorture.5

    is actionable in federal court under the Alien Tort Claims Act (" A TCA "),28 V.S.C. § 1350.6

    Defendant arguesthat Plaintiffs fail to statea claim becausethe SecondAmended Complaint

    at 6-8.:

           The Second                       that     "actively participated"in the
                     AmendedComplaintalleges Defendant

                killing, torture,infliction of severe
    extrajudicial                                    pain and suffering,and actsof cruel,

    inhuman311d                           to
                               with respect the decedent.(2nd Am. Compl.~ 58, 65.

5 The Court dismissedthe torture clwrn allegedin Count II of the AmendedComplwnt on grounds
that the Estateof Winston Cabello lacked the legal capacity to sue Defendant. In the Second
AmendedComplaint.Plaintiff Zita Cabello Barrueto,in her capacityasthe personalrepresentative
of the Estateof Winston Cabello. brings a claim for torture againstDefendant. Official torture
clearly violatesobligatory norms of customaryinternationallaw, and is thereforeactionableunder
theATCA. ~Kadic v. Karadzic.70 F.3d 232,236(2d Cir. 1995),~Abebe-Jira               v.Negewo.
72 F.3d844,847 (1IthCir. 1996). The Court addresses issueof whetherthe legal representative
hasstandingto bring a torture claim in SectionV -C, ~.
6    The A TCA provides: "The district courtsshall haveoriginal jurisdiction of any civil action hy an
alien for a tort only, committed in violation of the law of nationsor a treaty of the United States."
28 V.S.C. § 1350.

i    Defendantarguesthat there is no conceptofcivjl conspiracyunder Chilean tort law. WheTeall
of the claims in the SecondAmendedComplaintarebrought underjnternationallaw, however,the
relevantquestionis whetherPlaintiffs havc allegedconductby Defendantthat violates the .'Iaw of
nations," including internationalagreements customaryinternationallaw.

73, 81, 92, 99, 106, 114.) Additionally.eachclaim for relief allegesthat Defendant

            as                                 and
participated a "joint tortfeasor,co-conspirator, participantin a commonplan, design

           and                counseled,
and scheme," that he "procured.        aided,abetted           the
                                                    and assisted other

members GeneralArellano's squadin effecting the commonplan, design,and scheme"

that                       death,pain andsuffering,torture.andothcr inhumaneacts. (ldJ
       resultedin decedent's

                                           servedasbodyguardto GeneralArellano, that
Specifically.Plaintiffs allegcthat Defendant

he "engaged actsofviolcnce designedto injure. harm.torture. and result in the deathof

the prisoners,"and that he "was awareof the deathsof the prisoners ,". (ld.., 34.)

         As the Court construes SecondAmendedComplaint,Plaintiffs no longer allege

                                                           Thus, acceptingthe facts
that Defendantpersonallykilled Winston Cabellowith a £QI:YQ.

allegedin the Second      Complaintas true,the Court must detenninewhcther

Defendantmay be held liable under the A TCA tor indirectly participating in a common

     or          or
scheme conspiracy. aiding andabettingothers.in committingthe allegedabuses.

                                      has          this
Althoughthe EleventhCircuit apparently not addressed issuedirectly. many federal

                                         conspiracies accompliceliability. ~
courtshaverecognizedthat the A TCA reaches          and

liilaQ v. Estateof Marcos. 103F.3d 767,776 (9th Cir. 1996)(affinning district court'sjury

instructionallowing foreign leaderto be held liable upon finding that he "directed,ordered,

conspiredwith, or aidedthe military in torture, summaryexecution,and 'disappearance"');

Mehinovic v. Vuckovic. No. CIV.A :98-CV-2470-M,2002 WL 851751,at .24-25 (ND.

Ga. Apr. 29. 2002) (holding dcfendantliable for aiding and abetting in acts that violate

customaryinternationalJaw);EastmanKodak Co. v. Kavlin, 978 F. Supp. 1078, 1091-92

(S.D. Fla. 1997) (assertingATCA jurisdiction over claim of conspiracybetweenprivate

defendantand state actors to causeplaintiff's arbitrary and inhuman detention); Doe v.

UnocaJCo~., 963 F. Supp. 880, 889-90(CD. CaJ.1997)(pennitting ATCAjurisdiction

                                          conspiredto commit violations ofintemational
.overplaintiffs' allegationsthat defendants

law);.c.L Abebe-Jira v. Ne&cwo, 72 F.3d 844. 845-48 (11th Cir. 1996) (affirming verdict for

torture and cruel, inhuman or degrading treatment where defendantsupervised or participated

with othersin "some of the actsof torture" againstplaintiffs); Carmichaelv. United Tech.

~        835F.2d109, 13(5th Cir. 1988)(assuming, not deciding,that "the A TCA does

confer subjectmatter jurisdiction over private parties who conspire in, or aid and abet,

official actsof torture by one nation againstthe citizensof anothernation").

         Thc SenateRcport on the TVPA makesclear that the statuteis intendedto apply to

                         or       in                     No.1 02-249,at 8.9 (1991
thosewho "ordered,abetted, assisted the violation." S.REp.

.WL 258662).    The Report states:

         Under international law, responsibility for torture, summary execution. or
         disappearancesextendsbeyondthepersonor pcrsons       who actuallycommitted
         those acts - anyone with higher authority who authorized, tolerated or
         knowingly ignored thoseacts is liable for them.

I.4. at 9.

         The Reportfinds its authority in variousinternationalagreements. at 9 n.16. For

        Article 4(1) of the United Nations ConventionAgainst Torture and Other Cruel,

                                        ("'TortureConvention")provides: ..Each
Inhumanor DegradingTreatmentor Punishment

 StatePartyshall ensurethat all actsof tortureareoffensesunderits criminal law. The same

 shall apply to an attemptto commit torture and to an act by any personwhich constitutes

 complicity or participation in the torture." Sjmilarly, Artjcle 3 of the Inter-American

 the crime of torture: (a) A public servantor employeewho, acting in that capacity.orders,

 instigates inducesthe useof torture, or directly commitsit or who. beingable to prcvent

 it, fails to do so." Finally, the Report provides that "low-ievel officials cannot escape

 liability by claiming that they were acting underordersof superiors,"asArticle 2(3) of the

TortureConventionexplicitly providesthat, "[a]n order from a superiorofficial or a public

                                                        "       No. 102-249,at *9.
authoritymay not be invoked asajustification for torture. S. REP.

       Other international convcntions similarly provide that those who assist in the

          of                                                                  For
commission actsprohibitedby intemationallawmay beheld individually responsible.

instance,Article 7(1) of the TntcmationalCriminal Tribunal for the former Yugoslavia

("ICTY'") Statutestatesthat "[aJ personwho planned, instigated.ordered,committed or

otherwiseaidedand abettedin the planning,preparation executionof a crime referredto

in Articles 2 to 5 of the presentstatute[gravebreaches the GenevaConventionsof 1949,

violations of the laws or customsof war, genocideor crimes againsthumanity] shall bc

individually responsiblefor the crime." Article 7(1) also providesthat "[t]he fact that an

      personactedpursuantto an orderof a Government of a superiorshall not relievc
accused                                           or

him of criminal responsibility."

                    InProsecutorv.Tadic,CaseNo T-94-1-A,Judgemcnt                July 15.

     1999),the AppealsChamberof the InternationalTribunal for CasesRegardingthe Fonner

  Yugoslavia held that "the notion of common design as a Connof accomplice liability is firmly

establishedin customaryinternationallaw and .                                    in the [ICTY Statute]."~     ~ 220.
  Under Article 7( 1), "Wh(>evercontributes to the commission of crimes by a group of persons

             of                                                 may be held to
or somemembers the group,in executionof a commoncriminal purpose.

                                                                                ,. 1.4:'190.As the court explained
                    The above interpretation is not only dictated by the object and purpose of the
                    Statute but is also warranted by the very nature of many international crimes
                    which are committed most commonly during wartime situations. Most of the
                    times these crimes do not result from the criminal propensity of single
                    individuals but constitute manifcstations of collective criminality: the crimes
                    are often carried out by groups of individuals acting in pursuanceof a common
                    criminal design. Although only some members of the group may physically
                    perpetratethe criminal act (murder. . . etc.), the participation and contribution
                    of the other members ofthc group is often vital in facilitating the commission
                    of the offense in question. It follows that the moral gravity of such
                    participation is oftcn no less - or indeed no different - from that of those
                    actually carrying out the acts in question.

~, 191
                                  that                    and        liability are well
                    The Courtagrees principlesof conspiracy accomplice

established customaryinternationallaw, set forth in all of the sourcesdiscusscdabove,

The A TCA is the legal means by which individuals who violate well-established international

law may be held liable in United Slatescourts. Congress clearly indicatedits intent to

provide federalcourts as a forum to bring to justice individuals who contributedirectly to

                 evenwherc it cannotbe shownthat an individual actually committed
humanrigh~ abuses.

theactsof abuse.Accordingly, theCourt determines a matterof law that Defendantmay

be held liable underthe A TCA for conspiringin or aiding andabettingthe actionstakenby

other Chilean military officials. contrary to internationallaw, with respectto Plaintiffs'

decedent.Prcsently,Plaintiffs haveallegcdsufficient participationby Defendantto avoid

dismissalof the SecondAmendedComplaint

                  c.     Standing of Legal Representativeof Decedent'sEstate

            In theAugust 10.200I Order,thc Courtdismissed claimsbroughtby the Estateof

,WinstonCabello for lack of standing,basedon the Court's finding that both federal and

Florida law contemplate                   bring lawsuitson behalfof estates.(D.E. 120
                       that represcntatives

at 1   .)                                                                         of
             In the AmendedComplaint, Zits Cabello Bamleto, as legal representative the

estate.broughta claim for cxtrajudicialkilling           Neither party disputedthat legal

representativesmay recover under the rvp A for anexlrajudicialkilling, andtheCourt found

that the Stateof Florida had declaredZita Cabello Barruetoqualified as decedent'slegal

             underFlorida law. In the Second
representative                             AmendedComplaint,Zita CabelloBamleto.

in her capacityas legal representativc the estate,also allegesclaims for torture, crimes

againsthumanity. and cruel, inhumanor degradingtreatment. Defendantarguesthat she

lacks standingbecauseunder Chilcan law, the decedent'swife and children are the only

                           of            and
possiblelegalrepresentatives the decedent, that only the actualvictim of torture can

bring an action for torture underthe TVPA.

            First, the Court rejectsDefendant'sassertionthat Chilean law governsthe issueof

    who qualifies as the decedent's"legal representative." As the Court detennined the

    on a torture claim by the victim's representative.8                         section
                                                                     that because

             from recovering.

theTVPA, while not implausible,is overly restrictive. The HouseReportprovidesthat the

8                                        An
    The TVPA provides,in relevantpart: ... individuaJwho, underactualor apparentauthority, or
color of Jaw,of any foreign nation- (1) subjectsan individual to torture shall, in a civil action, be
liable for damages that individual; or (2) subjectsan individual to an extrajudicial killing shall,
                                      to                                     or
in a civil action,be liable for damages the individual's legal representative, to any personwho
may be a claimant in an action for wronglul death." 28 U.S.C. § 1350note, § 2.

                                      added). The Senate
367(1),1992U.S.C.C.A.N.84, 87 (emphasis                 Reportstates:

       The legislationpennits suit by the victim or the victim's legal reprcsentative
       or a beneficiaryin a wrongful deathaction. The term "legal representative"
       is usedonly to include situationsin which the executoror executrix of the
       decedent's  estateis suing or in which an individual is appearingin court as a
       "friend" ofthc victim because the victim's mentalor physicalincapacityor
       youthful age. The term "bencficiary in a wrongful deathaction" is generally
       intcndedto thosepersonsrccogni7.ed legal claimantsin a wrongful death
       action underAnglo-Amcrican law.

S.REp.No. 102-249,at.7.

                                                                      intendedto allow the
       In view of the legislativehistory, the Court finds that Congress

                            of         torturevictim to recoveron behalfof the
survivinglegal representative a deceased

                                              District of New York. Defendant's
victim's estate As notedrecentlyby the Southern

interpretation would allow the most egregious violations of section 2(a)( 1) -torture resulting

        or       the               -                by
in death rendering victim incompctent to gounaddressed theTVPA. ~                        ~

~. Ro~al Dutch Petrol. Co., No. 96 CI V . 8386 (KMW), 2002 WL 319887, at .16 (SD. N. Y.

2002). Such a result would not contribute to the TVPA's purposeof "making sure that
torturersanddeathsquads longer havea safehavenin the United Statcs." S. REr. No.

102-249. .3. Therefore,the Court finds that PlaintiffZita CabelloBarruetahasslanding

asthe legal representative of the Estate of Winston Cabello. to bring the claims alleged in her

             capacityin the SecondAmendedComplaint. Accordingly. it is

       ORDERED AND ADJUDGED that the Motion to DismissSecondAmended

Complaint(D.E. 136),filed November2,2001 by DefendantArmando FemlmdezI~arios,


DONE AND ORDERED in Chambers Miami, Floridathis5-            day

United Slateo; Magistrate    Judge Andrea M. Simonton

Julie C. fciguson.   Esq.

Rnbert G KerrisBn.     Esq

!>aul L Hoffinan.    Esq.

Jomua Sondheimer. Esq.

NicoleM. Healy,E~.

SUSInShawn Roberts, Esq

PwkerD Thompson.

Sleven W [>avis, Esq

rimolhy   .1. Norris. Esq.