Monday, June 7, 2010

Human rights claims clear immunity hurdle

(My thanks to IntLawGrrls for the opportunity to contribute this guest post discussing a case on which I worked while an intern at the Center for Justice & Accountability)

The U.S. Supreme Court unanimously has rejected certain claims to immunity against civil actions alleging human rights violations. Still, questions remain.
In Samantar v. Yousuf, the Court held last week that the Foreign Sovereign Immunities Act does not shield former government officials from liability for suits filed under either the Torture Victim Protection Act or the Alien Tort Statute.
As IntLawGrrls have posted (here, here, and here), during the late 1980s petitioner Mohamed Ali Samantar served as the First Vice President and Minister of Defense of Somalia for the regime headed by President Siad Barre. Under Samantar's direction, the Somali military subjected the seven respondents/plaintiffs, or their family members, to torture, cruel, inhuman and degrading treatment, or extrajudicial killings. These victims’ only "offense" was membership in the Isaaq clan, a prosperous and independent group perceived by the regime as a likely source for potential political rivals.
After the Barre regime collapsed, Samantar moved to the United States and took up residence in Virginia. In 2004 respondents filed suit under the Torture Victim Protection Act and the Alien Tort Statute. These laws confer jurisdiction on federal courts to hear cases regarding foreign torts committed in violation of international law -- in this case, torture and extrajudicial killing. Samantar moved to dismiss. The federal district court granted his motion, reasoning that he was acting within the scope of his authority as a foreign official and, therefore, that the FSIA shielded him from liability. The U.S. Court of Appeals for the Fourth Circuit reversed, and the Supreme Court granted respondents' petition for certiorari.
The high court’s just-issued decision is a victory for human rights advocates in this country, because it prevents former foreign officials from claiming immunity under the FSIA for their human rights abuses.
The principal opinion, authored by Justice John Paul Stevens (left), rests on a very detailed and technical reading of the terms “agency or instrumentality” and “foreign state” in the FSIA. “Agency or instrumentality,” as defined by the statute itself, is an “entity,” “separate legal person, corporate or otherwise,” or an “organ” of the state -- language the Court interprets to mean an organization or corporation, not an individual official.
Stevens wrote (slip op. at 16):
Reading the FSIA as a whole, there is nothing to suggest we should read 'foreign state' in § 1603(a) to include an official acting on behalf of the foreign state, and much to indicate that this meaning was not what Congress enacted.
As a result, the Court ruled that the petitioner/defendant does not qualify as an agency or instrumentality of a foreign state, even if he was acting within the scope of his official authority. Thus he cannot rely on the FSIA to protect him from liability.
The Court also looked to the legislative history and intent of the FSIA to bolster its reading of the statute. Examining the complicated interplay between immunity for foreign states and for foreign officials, it held that Congress intended to leave immunity for foreign officials outside the scope of the act. Not surprisingly, in separate concurring opinions, Justices Samuel A. Alito Jr., Antonin Scalia, and Clarence Thomas took exception to the Court’s use of legislative history in its interpretation of the statute.
With this very narrow judgment the Court left open a series of important and niggling questions; for example:
► Do former government officials have immunity stemming from the common law?
► If so, what form does that immunity take and who determines it?
The Office of the Solicitor General has argued consistently that the Executive Branch, and more specifically the U.S. State Department, has the power to determine common law immunity, not the courts.
This is an interesting and infrequently litigated area, which will no doubt garner much debate in the coming years.

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