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U.S. Supreme Court Severely Limits Application of the Alien Tort Statute

April 18, 2013

On April 17, 2013, the U.S. Supreme Court issued a decision in Kiobel v. Royal Dutch Petroleum Co. that severely limited the application of the Alien Tort Statute (ATS),[1] which provides that the U.S. district courts “shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the [U.S.].”[2]

The Court unanimously decided that the ATS did not cover a lawsuit by Nigerian plaintiffs for money damages against corporations incorporated in the Netherlands, the U.K. and Nigeria for their alleged aiding and abetting the Nigerian military and police’s beating, raping, killing and arresting of Nigerians and destroying and looting their property, all in Nigeria.[3]

The Court, however, differed, 5 to 4, on the rationale for this conclusion.

The Majority’s Rationale

The opinion for the Court by Chief Justice John Roberts, expressing the majority’s rationale, held that the Court’s presumption against extraterritorial application of federal statutes applies to claims under the ATS and that nothing in the ATS rebutted that presumption. Therefore, said the Chief Justice, this “case seeking relief for violations of the law of nations occurring outside the [U.S.] . . . is barred.”[4]

This presumption, according to Roberts, was recognized in these precedents from the Court in 1957, 1991, 2007 and 2010, which were referenced by him as follows:

  • The 1957 case, Benz v. Compania Naviera Hidalgo, S.A., 353 U.S. 138, 147 (1957), was merely quoted in the 1991 case to say, “For us to run interference in . . . a delicate field of international relations there must be present the affirmative intention of the Congress clearly expressed. It alone has the facilities necessary to make fairly such an important policy decision where the possibilities of international discord are so evident and retaliative action so certain.”
  • The 1991 case, EEOC v. Arabian American Oil Co., 499 U.S. 244, 248 (1991), said this presumption “serves to protect against unintended clashes between our laws and those of other nations which could result in international discord.” After the above quotation from the Benz case, the Court in the 1991 case continued, ” The presumption against extraterritorial application helps ensure that the Judiciary does not erroneously adopt an interpretation of U.S. law that carries foreign policy consequences not clearly intended by the political branches.”
  • The 2007 case, Microsoft Corp. v. AT&T Corp., 550 U.S. 437, 454 (2007), said the “presumption [assumes] that [U.S.] . . . law governs domestically but does not rule the world.”
  • The 2010 case, Morrison v. National Australian Bank Ltd., 561 U.S. ___, ___ (2010), said this canon of statutory construction provides that “[w]hen a statute gives no clear indication of an extraterritorial application, it has none.” This case, noted the Chief Justice, said “the question of extraterritorial application was a ‘merits question,’ not a question of jurisdiction.”

In discussing whether and how this presumption applied to the ATS, the Chief Justice first disposed of the Morrison case’s limitation of the presumption to the merits whereas the ATS was only jurisdictional as established by the Supreme Court in Sosa v. Alverez-Machain, 542 U.S.692, 713 (2004). Said Roberts, “the principles underlying the canon of interpretation similarly constrain courts considering causes of action that may be brought under the ATS.”

Roberts then found nothing in the ATS itself that suggested a congressional intent that it have extraterritorial application. It refers to “violations of the law of nations,” but such violations can occur in the U.S. It says it covers “any” civil action, but the Court in decisions in 1949 and 2005 had established that generic terms like “any” or “every” do not rebut the presumption. It covers actions for “torts,” but that word does not evidence such an intent.

Nor, according to Roberts, did the historical context of the 1789 adoption of the ATS overcome the presumption. At the time, as Sosa noted, two of the three recognized violations of the law of nations at the time–violation of safe conducts and infringement of the rights of ambassadors–had no extraterritorial application.

The other recognized violation in 1789–piracy–was not as easy for the Chief Justice to get around. He said, “Piracy typically occurs on the high seas, beyond the territorial jurisdiction of the [U.S.] . . . or any other country.” Although the Court “has generally treated the high seas the same as foreign soil for purposes of the presumption,” Roberts refused to regard that as evidence of congressional intent for extraterritorial application. Said Roberts, “Applying U.S. law to pirates . . . does not typically impose the sovereign will of the [U.S.] . . .  onto conduct occurring within the territorial jurisdiction of another sovereign, and therefore carries less direct foreign policy consequences. Pirates were fair game wherever found, by any nation, because they generally did not operate within any jurisdiction.”

Finally, according to Roberts, “there is no indication that the ATS was passed to make the [U.S.] . . . a uniquely hospitable forum for the enforcement of international norms . . . It is implausible to suppose that the First Congress wanted their fledgling Republic–struggling to receive international recognition–to be the first [custos morum or guardian of manners or morals of the  whole world]. Indeed, the parties offer no evidence that any nation, meek or mighty, presumed to do such a thing.”

Applying these principles to the Kiobel case itself, Roberts said “all the relevant conduct took place outside the . . .  [U.S.]. And even where the claims touch and concern the territory of the . . . [U.S.], they must do so with sufficient force to displace the presumption against extraterritorial application.” A “mere corporate presence” in the U.S. such as an office of a corporate affiliate of the corporate defendants in this case had would not suffice.

The Minority’s Rationale

The minority’s rationale was set forth in the concurring opinion of Justice Breyer, which was joined by Justices Ginsburg, Sotomayor and Kagan.

Breyer first rejected use of the presumption against extraterritoriality because the ATS’ use of “alien,” “treaties” and “the law of nations” clearly demonstrate that Congress had foreign matters in mind.

Moreover, piracy was clearly contemplated as covered by the statute in 1789 and takes place abroad. The Chief Justice’s treatment of piracy, however, Breyer implied, is erroneous. Says Breyer, “the robbery and murder that make up piracy do not normally take place on the water; they take place on a ship. And a ship is like land, in that it falls within the jurisdiction of the nation whose flag it flies.” Thus, ‘applying U.S. law to pirates’ does typically involve applying our law to acts taking place within the jurisdiction of another sovereign.”

On the other hand, Breyer agreed with Roberts that pirates “were fair game wherever found, by any nation,” but not, as Roberts said, because they did not operate within any jurisdiction, but because pirates were “common enemies of all mankind and all nations have an equal interest in their apprehension and punishment.”  Today, according to Breyer, torturers and perpetrators of genocide are today’s pirates.

Breyer then said that international jurisdictional principles justified the conclusion that ATS jurisdiction exists where “(1) the alleged tort occurs on American soil, [or] (2) the defendant is an American national, or (3) the defendant’s conduct substantially and adversely affects an important American national interest.” One such national interest, according to Breyer,  is “preventing the [U.S.] from become a safe harbor (free of civil as well as criminal liability) for a torturer or other common enemy of mankind.”

With respect to Kiobel itself, Breyer noted that the corporate defendants were foreign corporations who were present in the U.S. only through a small office of a corporate affiliate, that the plaintiffs are not U.S. nationals, that the conduct at issue took place abroad and that the alleged illegal corporate conduct was not direct, but accessory. It, therefore, “would be farfetched to believe . . . that this legal action helps to vindicate a distinct American interest.”

Conclusion

The majority’s rationale essentially obliterates the 34 years of ATS jurisprudence carefully developed by the lower federal courts. It should lead to the immediate dismissal of many pending ATS cases.[5]

I disagree with the result in this case and with the majority’s rationale because I believe that the ATS has been an important way of expanding the reach of international human rights norms and because the Congress in these 34 years has not chosen to amend the ATS to negate this jurisprudential development. Indeed, when Congress in 1991 adopted the Torture Victims Protection Act, it recognized and approved this ATS jurisprudence.

Moreover, the Supreme Court’s creation and elaboration of the presumption against extraterritorial application, I believe, is a development of the last 60 years and was not clearly known to the Congress when it initially adopted the ATS in 1789. It, therefore, seems unfair and inappropriate to employ this interpretative presumption to construe the ATS. In more recent years, on the other hand, the Congress should be aware of this presumption in drafting statutes.

I also continue to be baffled by everyone’s failure to include in the analysis of the congressional intent behind the ATS the fact that Congress in 1948 re-enacted the ATS as part of the Judicial Code (title 28 of the U.S. Code). That year–1948– was a very important year in the development of the law of nations regarding human rights.  The U.N. Charter–a treaty ratified by the U.S.–was three years old, and one of its purposes was “promoting and encouraging respect for human rights” (Article 1(3)) while its Economic and Social Council was directed to set up a commission “for the promotion of human rights” (Article 68). Such a commission was established, and in 1948 its Universal Declaration of Human Rights and its Convention on the Prevention and Punishment of the Crime of Genocide were approved by the U.N. General Assembly. Such an appreciation should broaden the types of “torts in violation of the law of nations” beyond the three discussed by the Chief Justice.

Justice Breyer’s legitimate concern for the U.S. interest in not being a safe haven for the common enemies of mankind, as discussed in a prior post, has been recognized by the Congress in several statutes–the Intelligence Reform and Terrorism Prevention act of 2004 and the Magnitsky Act of 2012–and by the legal proceedings to remove or deport such common enemies of mankind from the U.S. by the Human Rights Violators and War Crimes Center of the U.S. Immigration and Customs Enforcement agency and by the criminal prosecution of other such individuals for immigration fraud and perjury.

Finally, we must remember that this is a case of statutory interpretation, and Congress could always amend the ATS or adopt a new statute to overrule this decision. In a future post, I will set forth a draft outline of such a new statute even though I am not hopeful that this dysfunctional U.S. Congress will be prepared to take such action in the near future.

[1] The New York Times and the Washington Post obviously covered this decision. The Times editorial board criticized the decision while the Wall Street Journal reached the opposite conclusion.

[2] Many prior posts have discussed the ATS. Some of these focused on the Kiobel case itself.

[3] The Court did not address another issue presented by this case–whether corporations could be held liable under the ATS.

[4] The Chief Justice’s opinion was joined by Justices Scalia, Kennedy, Thomas and Alito. Justice Kennedy also authored a short concurring opinion, which stated, “Other cases may arise with allegations of serious violations of international law principles protecting persons, cases covered neither by the [Torture Victims Protection Act] . . . nor by the reasoning and holding of today’s case; and in these disputes the proper implementation of the presumption against extraterritorial application may require some further elaboration and explanation.” Another concurring opinion was submitted by Justice Alito joined by Justice Thomas; it said, “a putative ATS cause of action will fall within the scope of the presumption against extraterritoriality–and will therefore be barred–unless the domestic conduct is sufficient to violate an international law norm that satisfies Sosa‘s requirements of definiteness and acceptance among civilized nations.”

[5] For example, the Supreme Court’s decision should lead to the dismissal of the ATS claims against Ernesto Zedillo, the former President of Mexico, but the claims against him under the Torture Victims Protection Act should survive for the court’s ruling on the immunity issue.

 

 

 

 

 

 

 

 

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Former Mexican President Tells U.S. Court To Ignore Mexican Court Decision

April 17, 2013

This blog has been following the civil lawsuit for money damages in U.S. federal court against Ernesto Zedillo, the former President of Mexico, for his alleged involvement in a 1977 massacre in a Mexican village and his claim for immunity from same.

That request for immunity has prompted another lawsuit, this in a Mexican court, over the legality of the request under Mexican law. In early March 2013 the Mexican court decided that the request for such immunity by the Mexican Ambassador to the U.S. State Department was illegal, and on March 28th that Mexican court decision was filed with the U.S. court.

The latest move in this duel between the two court systems took place on April 12th when Mr. Zedillo told the U.S. court that it should just ignore the Mexican court.

That was the bottom line in the Defendant’s Response to Plaintiffs’ Notice Regarding Mexican Trial Court Decision that was filed that day in the U.S. District Court for the District of Connecticut.

Although Mr. Zedillo in this document noted that his pending appeal of the Mexican court decision had been joined by the current Mexican President and Secretary of Foreign Affairs, that decision is asserted to be “irrelevant” to the U.S. case, and the U.S. court should “promptly and finally” dismiss the U.S. case. This conclusion purportedly follows from these premises:

  • The U.S. Department of State decides whether immunity for a foreign official advances U.S. interests and U.S. law.
  • The U.S. Department of State does not judge whether a foreign nation’s request for immunity for one of its former officials is in accordance with that country’s laws.
  • The U.S. Department of State already has decided that immunity in the U.S. case for Mr. Zedillo is in accordance with U.S. law and foreign policy and so advised the U.S. court.
  • Under U.S. law, U.S. courts are required to honor the U.S. Department of State’s decisions on immunity of former foreign officials.

Although I do not quarrel with these premises, I do not think that they support the conclusion put forward by Mr. Zedillo.

If the Mexican trial court decision is sustained on appeal in Mexico, then that should result in the Mexican government’s rescission of the earlier request for immunity by its Ambassador. That hypothetical situation, to me, looks like the case where the State Department recently refused to support immunity in a U.S. case for a former Somali official because there was no Somali government that could ask the Department for such immunity.

In any event, if I were the U.S. judge in the Zedillo case, I would postpone making any decision on immunity for Mr. Zedillo until after the Mexican case was concluded and the U.S. State Department had expressed its views on the impact of the Mexican case. Perhaps I would now ask the State Department for its views before the Mexican case had concluded, but I anticipate the Department would say it was waiting for a final judgment in the Mexican case before it expressed its views.

This blog will continue to watch for further developments in these cases.

 

 

 

 

 

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Enforcement of International Human Rights Norms with U.S. Immigration Laws

April 14, 2013

Three methods of enforcing international human rights norms are found in U.S. laws relating to immigration.[1]

Introduction

First, certain foreign human rights violators can be deported or removed from the U.S. As section 237(a)(4)(D) of the Immigration and Nationality Act (INA) states: “Any alien . . . in and admitted to the [U.S.] . . . shall . . .  be removed if the alien . . . (ii) ordered, incited, assisted, or otherwise participated in genocide, as defined in section 1091(a) of title 18, United States Code . . . ; (iii) outside the [U.S.] . . . committed, ordered, incited, assisted, or otherwise participated in . . . (I)any act of torture, as defined in section 2340 of title 18, United States Code; or (II) under color of law of any foreign nation, any extrajudicial killing, as defined in section 3(a) of the Torture Victim Protection Act of 1991 (28 U.S.C. 1350 note).” [2]

Generals Casanova (left) and Garcia (right)

Generals Casanova (left) and Garcia (right)

This provision of U.S. immigration law currently is being used with respect to former Salvadoran military officers Carlos Eugenio Vides Casanova and Jose Guillermo Garcia, who jointly had been held civilly liable for torture in their country by U.S. federal courts under the Alien Tort Statute(ATS)[3] and the Torture Victims Protection Act (TVPA),[4] but who jointly had escaped similar civil liability under the TVPA for the torture and murder of the four American churchwomen in El Salvador.

These two immigration cases were brought by the Human Rights Violators and War Crimes Center of the U.S. Immigration and Customs Enforcement agency (ICE) of the Department of Homeland Security (DHS), whose mission is to “prevent the admission of foreign war crimes suspects, persecutors and human rights abusers into the [U.S.],” to “identify and prosecute individuals who have been involved and/or responsible for the commission of human rights abuses across the globe” and to “remove, whenever possible, those offenders who are located in the [U.S.].”

Second, certain foreign human rights violators who had gained legal entry or presence in the U.S. can be criminally prosecuted for committing fraud in obtaining a U.S. visa or other immigration benefit (18 U.S.C. § 1546(a)) or committing perjury in statements to U.S. immigration officials (18 U.S.C. § 1621(2)).

Innocente Orlando Montano

Innocente Orlando Montano

This set of provisions currently is being used with respect to another former Salvadoran military officer,  Innocente Orlando Montano, who allegedly was involved in various human rights violations in his country, including the November 1989 murder of the six Jesuit priests and their housekeeper and her daughter.[5]

Sergei Magnitsky Grave

Sergei Magnitsky Grave

Third, last year the U.S. adopted the so-called Magnitsky Act which bans the issuance of U.S. visas to Russian individuals involved in certain human rights violations, including the detention, abuse or death of Sergei Magnitsky, a Russian lawyer and auditor who died in a Moscow prison in 2009 after investigating fraud involving Russian tax officials.[6]

Discussion

 Vides Casanova

After an eight-day trial, a U.S. immigration judge on February 22, 2012, issued his 151-page decision on charges by DHS that Casanova, who had been residing in the U.S. since his retirement from the Salvadoran military in 1989, was removable from the U.S. on the grounds that he had committed, ordered, incited, or otherwise participated in torture and extrajudicial killings in El Salvador under the previously cited INA provisions. [7]

The immigration judge found that Casanova had ” assisted or otherwise participated in (a) “the extrajudicial killings of the four American churchwomen, five other named individuals, 29 unnamed others plus “countless civilians committed by the Salvadoran Armed Forces and Salvadoran National Guard while under [his] . . . command” and (b) “the torture of [Arce]” and “countless unnamed individuals [who had been] tortured by the Salvadoran [security forces] while under [his] . . .  command.” Therefore, the immigration judge concluded that Casanova was removable from the U.S. under the previously cited statutory provision.

On August 16, 2012, the Immigration Judge denied Casanova’s application for cancellation of the removal order. The Judge held that the INA barred Casanova from seeking cancellation of removal, that under Board of Immigration (BIA) precedent immigration judges could not apply the doctrine of equitable estoppel against the U.S. Government and that the statutory provision authorizing his removal that was added in 2004 was explicitly made retroactive, thus rendering any contrary international law irrelevant.

On September 17, 2012, Vides Casanova appealed the latter decision to the Board of Immigration Appeals, where it is now pending.

Jose Guillermo Garcia

In October 2009, DHS charged that Garcia, who had been residing in the U.S. since his retirement from the Salvadoran military, was removable from the U.S. under the previously cited INA provisions on the grounds that he had committed, ordered, incited, or otherwise participated in torture and extrajudicial killings in El Salvador.[8]

On February 27, 2013, an immigration judge in Miami, Florida concluded a seven-day trial or hearing on these charges. Closing briefs are due on June 3 and reply briefs by July 5. Thereafter the judge will issue a “timely written decision.”

The trial record consists of nine volumes of documents and the testimony of former U.S. Ambassador to El Salvador, Robert E. White; Dr. Juan Romagoza Arce (a plaintiff in the successful ATS and TVPA case against Garcia and Casanova); Dr. Terry Karl (expert witness); Garcia; and Ana Carolina Montoya (Garcia’s daughter).

  • Ambassador White testified to his frequent conversations with Garcia from March 1980 to early 1981, when the Ambassador urged Garcia to clean up human rights abuses and hold the perpetrators responsible. Garcia, however, failed and refused to do so even though he had admitted to White that 1% of the military were in the death squads. Garcia had expressed approval of the November 1980 assassination of the leadership of an opposition political party and of the strategy of assassinations as a means of dealing with dissidents.
  • Arce testified to his abduction in December 1980 and his horrendous torture over 22 days at a military barracks and the National Guard headquarters.
  • Dr. Karl, a Stanford University political science professor who has studied El Salvador for many years, testified that during the period Garcia was Minister of Defense (October 1979-April 1983) (1) he was the most powerful person, de facto and de jure, in the country; (2) the Salvadoran military engaged in widespread and systematic attacks on civilians; (3) Garcia was in control of the military; (4) Garcia presided over instituting measures of state terror; (5) Garcia’s actions gave a “green light” for human rights abuses; (6) Garcia promoted and protected known human rights abusers and fostered impunity of his fellow officers; and (7) Garcia repeatedly denied human rights abuses were occurring. She also described the widespread and systematic use of torture by the various units of the Salvadoran security forces.
  • Garcia testified that he did not commit or order any acts of torture or extrajudicial killings. He  admitted that he knew there were widespread human rights abuses in the military while he was Minister of Defense; that “was public knowledge” and “can’t be denied.” He, however, had tried to identify and hold the perpetrators accountable, but the available evidence was insufficient to have successful prosecutions.
  • During questioning by the immigration judge, Garcia repeatedly admitted that he know of torture and other abuses by the military, but that he lacked control. Yes, he said, he did bear responsibility for those abuses, but not culpability.

Innocente Orlando Montano

In February 2012 the federal court in Massachusetts indicted Montano for perjury and lying to U.S. immigration officials in connection with his applications for Temporary Protected Status (TPS) in the U.S. under the previously cited criminal code provisions.

On September 13th he pleaded guilty to three counts of immigration fraud and three counts of perjury as a result of (a) his stating a false date of entry to the U.S. that qualified for TPS instead of his actual date of entry which did not so qualify and (b) his false statements to immigration officials that he had never served in a military unit, had never received military weapons training and had never been involved in persecution of others.

Since then the parties have been exchanging briefs on the appropriate sentence. The Government is recommending  one of 51 months while Montano argues that is too long.

The Government’s Sentencing Memorandum of January 8, 2013, makes an interesting and, in my opinion, compelling argument for its recommendation. Here are its main points:

  • During the Salvadoran civil war, Montano quickly rose to the highest echelon of its security forces, and the forces he commanded were responsible for death squad activities and numerous other human rights abuses. According to expert witness, Dr. Terry Karl, there were at least 1,169 such violations, including 65 extrajudicial killings, 51 disappearances and 520 cases of torture. His appointment as Vice Minister for Public Security coincided with “a strong resurgence [in such crimes] . . . aimed at prominent civilians and civilian groups.”
  • Before the November 1989 murder of the Jesuit priests, Montano was an active participant in trying to publicly discredit the priests, including his publicly calling Ignacio Ellacuria, the Jesuit Rector of the University of Central America (UCA), as one “fully identified with subversive movements.”
  • In November 1989, according to the 1993 report of the Truth Commission for El Salvador, Montano was a member of a “small group of elite officers, one of whom gave the official order to ‘kill Ellacuria and leave no witnesses.” (Later in 1993 the Ad Hoc Commission, which was established by the Peace Accords that ended the Salvadoran civil war, recommended that virtually the entire military command, including Montano, be removed from office.)
  • After the murder of the Jesuits, Montano aided the cover up of the involvement of the security forces in this crime. He publicly insisted that the FMLN, not the security forces, had committed the crime. Although Montano initially was responsible for investigating the crime, he did not do anything to do so. He also pressured lower level military officers not to disclose the orders to kill Ellacuria and leave no witnesses to the Salvadoran court in subsequent charge of  investigating the crime. In addition, Montano refused to cooperate with, or be interviewed by, the investigating judge, and in 2000 publicly rejected the claim that he was the indirect author of the murders, rebuked the Jesuits at UCA of “raking up the past” and called the reopening of the case as “orchestrated by the left” as part of “an international leftist plan.”
  • When Montano left El Salvador for the U.S. in 2001, there was “a great likelihood [he] . . . was motivated, at least in part, . . . [by] fear that he was vulnerable to prosecution for his role in the Jesuit murders.”
  • A fear of such vulnerability grew out of the arrest in 1998 of Chilean General Pinochet and of his being stripped of his immunity and ordered in 2001 to stand trial in Chile; the 1999 case against an Argentine military officer; a case against a Honduran general; and the June 2001 conviction of a Guatemalan military officer for the extrajudicial execution of a Roman Catholic bishop.
  • Also supporting such a likely fear was the Salvadoran election of March 2000 which gave the FMLN (the former guerrilla organization) a legislative majority and which immediately thereafter precipitated calls for reopening the Jesuit case from the Rector of UCA and the Archbishop of San Salvador. To the same effect were decisions in 2000 by the country’s courts that its General Amnesty Law could not be applied to human rights violations by public officials while in office and that even though the statute of limitations had run out in the Jesuits case, the writ of amparo could still be used for that crime.

Given the strength of the Government’s justification for the recommended sentence, the lack of any real response from Montano and the skeptical questioning of Montano by the judge, I have little doubt that the judge will find the grounds for removal substantiated by the evidence and order him removed or deported from the U.S.

Magnitsky Act Developments

On April 12, 2013, the Obama Administration issued a list of 18 Russians who were barred from entering the U.S. and whose assets, if any, in the U.S. were frozen, pursuant to this statute. Most were individuals tied to the death of Mr. Magnitsky, but two had been implicated in notorious murders of a Chechen dissident and an American journalist. There were other more highly placed Russian officials on a nonpublic list.

The reaction to the release of this list was mixed. Russian officials, or course, were critical although a Russian legislator said the Obama Administration was taking a “minimalist path” to avoid a deeper crisis before the visit this week to Russia by the Administration’s National Security Advisor, Tom Donilon. Mr. Megnitsky’s U.S. client and major advocate for the Act when it was in Congress, William F. Browder, said, “We’ve just crossed the threshold. This is the end of impunity.” U.S. Senator John McCain, however, said the list was “so damaging” because it was not robust enough and promised new legislation to go after Russian abusers.

The next day (April 13th) Russia retaliated by issuing a list of 18 U.S. citizens who were barred from entering Russia because of their alleged human rights violations. It included two people involved in preparing the so-called “torture memos” –David Addington, Chief of Staff to Vice President Dick Cheney, 2005-2009; and John Yoo, Assistant U.S. Attorney General, 2001-2003–and two who had responsibilities for the operations of the Guantanamo Bay detention facilities– Geoffrey D. Miller, retired U.S.Army Major General, Commandant of Joint Task Force Guantanamo, 2002-2003; and Jeffrey Harbeson, U.S. Navy officer, Commandant of Joint Task Force Guantanamo, 2010-2012. The others on the list were U.S. officials involved in the prosecution and trial of a Russian arms dealer and a Russian pilot allegedly involved in drug trafficking.

Russian officials said the U.S. must realize it cannot conduct its relationship with Russia “in the spirit of mentoring and undisguised diktat.” The statement continued, “Our principled opinion on this unfriendly step is well known: under the pressure of Russophobically inclined U.S. congressmen, a severe blow has been dealt to bilateral relations and mutual confidence. The war of lists is not our choice, but we had no right to leave this open blackmail unanswered.”

Conclusion

These three immigration cases show the interactive nature of the enforcement of international human rights norms. Casanova and Garcia were named as involved in some of the worst human rights abuses in El Salvador by the Truth Commission for El Salvador, and its conclusions were then used by the Inter-American Commission on Human Rights in cases against the State of El Salvador and by U.S. courts in civil lawsuits under the ATS and the TVPA. All of the results of these proceedings were then used in these three U.S. immigration cases.

Another interactive element in these cases is the competent, sustained efforts of the Center for Justice and Accountability in supporting the successful civil lawsuit against Casanova and Garcia under the ATS and TVPA and pressing ICE’s Human Rights Violators and War Crimes Center to bring these immigration cases. The Center is a California-based human rights organization “dedicated to deterring torture and other severe human rights abuses around the world and advancing the rights of survivors to seek truth, justice and redress.” It ”uses litigation to hold perpetrators individually accountable for human rights abuses, develop human rights law, and advance the rule of law in countries transitioning from periods of abuse.”

The Magnitsky Act, in my opinion, is a different matter. I think it was unnecessary because the previously mentioned INA provisions now being used in the Casanova and Garcia immigration cases could be used to deny U.S. visas to the named Russians. I also think it was and is imprudent because it interferes with U.S. relations with Russia and our national interest in trying to obtain Russian assistance on problems with Syria and North Korea, for example. Professor of Russian Studies at NYU, Stephen Cohen, shares the latter view.

Yes, it is true that some of these means of enforcement are weaker than criminal conviction and imprisonment of the violators. Some only involve recommendations to the state (here, El Salvador) by such organizations as the Inter-American Commission on Human Rights. In this post we are concerned, in part, with orders by a country (here, the U.S.) for a violator to leave the country. But such “weakness” is a necessary consequence of a world essentially structured on the basis of an individual state’s sovereignty. Over time these various mechanisms hopefully will be improved and strengthened.

[1]  Asylum, of course, is another part of immigration law that enforces human rights as covered in other posts. Additional ways of enforcement are discussed in another post.

[2] This provision about removal of foreign human rights violators was added by section 5501 of the Intelligence Reform and Terrorism Prevention Act of 2004, 118 Stat. 3638, 3740 (2004). The same language bars such a person from obtaining a visa for legal entry into the U.S. (Id. § 212(a)(3)(E)(ii), (III).)

[3]  The ATS (28 U.S.C.§1350) provides that U.S.”district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the [U.S.].” Many prior posts have discussed this statute and cases thereunder.

[4]   The TVPA (28 U.S.C.§1350 note) provides, “An individual who, under actual or apparent authority, or color of law, of any foreign nation . . . subjects an individual to torture [or extrajudicial killing] shall, in a civil action, be liable for damages . . . .” Many prior posts have discussed this statute and cases thereunder.

[5] A Spanish court under the principle of universal jurisdiction has charged Montano and other Salvadoran military officers with complicity in the murders of the Jesuit priests and their housekeeper and daughter. The Spanish government has asked the U.S. to extradite Montano and another former officer now living in the U.S. to Spain to stand trial on such charges, but the U.S. apparently has not yet acted upon the request. A similar request to El Salvador for extradition of other former officers has been rejected. A summary of these and other developments in the Jesuits case is available on this blog.

[6] The complete title of the statute is the Russia and Moldova Jackson-Vanik Repeal and Sergei Magnitsky Rule of Law Accountability Act of 2012. Sections 404 (a) and 405(a) of the Act make ineligible for U.S. visas individuals identified on a subsequent U.S. presidential list of those “responsible for the detention, abuse, or death of . . . Magnitsky, participated in efforts to conceal the legal liability for the detention, abuse, or death of . . .  Magnitsky, financially benefitted from the detention, abuse, or death of . . .  Magnitsky, or was involved in the criminal conspiracy uncovered by  . . . Magnitsky.” That presidential  list is also to include a list of individuals “responsible for extrajudicial killings, torture, or other gross violations of internationally recognized human rights committed against individuals seeking–(A) to expose illegal activity carried out by officials of the Government of the Russian Federation; or(B) to obtain, exercise, defend, or promote internationally recognized human rights and freedoms, such as the freedoms of religion, expression, association, and assembly, and the rights to a fair trial and democratic elections, in Russia.”

[7]  A previous post discussed this February 2012 decision. The complete (but redacted) text of the February and August 2012 decisions was only made publicly available in April 2013. A summary of this immigration case is available on the web.

[8] A summary of this immigration case is available on the web.  Previously (January 2009), Garcia had been indicted for visa fraud and making false statements to U.S. immigration officials, but in September 2009 the indictment was dismissed when a government witness recanted her testimony.

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Mexican Court Decision Regarding Zedillo Immunity Is Filed in U.S. Case

March 28, 2013

On March 28, 2013, the plaintiffs in the U.S. lawsuit against Ernesto Zedillo in federal court in Connecticut filed a copy of the Mexican court decision (with 108-page English translation) regarding the Mexican government’s request for immunity for the former president. The plaintiffs, however, did not ask the U.S. court for any relief as a result of the Mexican court decision. Presumably that will come later.

According to the U.S. plaintiffs’ attorneys’ summary, the Mexican court on March 6, 2013, (a) granted a writ of Amparo in favor of the plaintiffs; (b) declared that the immunity request lacked any constitutional or legal basis in Mexican law; and (c) instructed the current Mexican Ambassador to perform all official acts necessary to withdraw the immunity request, including notifying the U. S. Department of State of that withdrawal. (Pp.106-107.) The Mexican court provided the following reasons for its decision:

  1. The immunity request violated the principle of Constitutional Supremacy set forth in Article 133 of the Political Constitution of the United Mexican States because the Ambassador of Mexico to the U.S. disregarded the international legal standard adopted by Mexico forbidding requests for head-of-state immunity allowing public officials to evade their responsibilities. (Pp. 99 – 106.)
  2. The immunity request lacks any rationale how Mexico’s national sovereignty would be damaged by civil proceedings against a former president who no longer occupies the post of, or performs the functions of, head of state. Id. at 94– 99.
  3. The immunity request violates the plaintiffs’ human rights of equality and nondiscrimination under the Mexican Constitution, Article 1, because the Mexican Ambassador engaged in disparate treatment pursuant to criteria of a political nature, creating a discretionary exception of impunity in favor of Zedillo, thereby preventing plaintiffs’ ability to exercise their rights to equally seek damages for the injuries suffered. Id. at 83-94.
  4. The immunity request violates plaintiffs’ human rights set forth in the Mexican Constitution, Articles 14 and 16, as applied by the Federal Law of Administrative Procedure, because it is not properly executed with the required formalities. Id. at 78-83.
  5. The immunity request violates plaintiffs’ human rights set forth in the Mexican Constitution, Articles 14 and 16, because the Mexican Ambassador failed to set forth or justify any jurisprudential, statutory or regulatory basis for the degree or amount of subject matter or jurisdictional authority. Id. at 70-78.

As noted in a prior post, the case in Mexico is not yet final so we will have to wait to see what additional proceedings, if any, occur there.

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Additional Thoughts About Mexican and U.S. Legal Issues in the Pending U.S. Lawsuit Against Ernesto Zedillo, Former President of Mexico

March 26, 2013
Ernesto Zedillo

Ernesto Zedillo

In September 2011 Ernesto Zedillo, a former president of Mexico, was sued in the federal court in Connecticut for money damages for his alleged complicity in a massacre in the Mexican village of Acteal in 1997. In September 2012, the U.S. government asked the court to grant immunity to Zedillo and dismiss the case based upon the Mexican government’s request to that effect and the subsequent similar request by the U.S. Department of State. These matters were covered in prior posts (here and here).

The U.S. court has not yet resolved the immunity or any other preliminary issues in the case, and the latest dockets sheets reveal no activities whatsoever since early February this year.

In March 2013 a Mexican court decided that the Mexican request to the U.S. State Department requesting such immunity was legally insufficient, as discussed in a prior post.

Subsequently a Mexican lawyer and friend, Juan Carlos Arjona Estévez, has provided me with additional comments about the Mexican court decision that prompt these additional thoughts about Mexican and U.S. legal issues in the case.[1]

The Mexican Court Decision

The Mexican court said the Mexican Ambassador’s letter to the U.S. Department of State requesting such immunity was legally deficient.[2] First, it was a letter from the Ambassador in his diplomatic capacity, not an official communication of Mexican government policy. Second, the letter did not cite to all the Mexican legal provisions relevant to the case. Third, the letter did not explain why immunity for Zedillo in the U.S. case was appropriate under those Mexican legal authorities and why such immunity would not affect Mexican ethnic groups’ right to access justice.

Moreover, there is no basis in the Mexican constitution for immunity for a former president or other government officials. Such immunity under Mexican law applies only when such individuals are in office.

This court decision could be appealed in Mexico by the Mexican Minister of Foreign Affairs, but reversal does not seem likely because the defense in the Mexican case is that the action of the Ambassador was not an “authorized act” that can affect the human rights of Mexicans, but only a diplomatic action.

If the decision is appealed, the three-magistrate appellate tribunal could affirm the decision and also refer to the provision in the Mexican Constitution stating that Mexican foreign policy has to promote human rights and that the request for Zedillo immunity for alleged human rights violations is contrary to such promotion.

Another possible outcome is for the Mexican Ambassador to rescind his request for immunity and to send a new letter to the U.S. Department of State saying that Senor Zedillo has not been sued in Mexico for the same claims and that Mexican courts should have the first opportunity to deal with these issues.

Related U.S. Legal Issues

These developments in Mexico raise at least two issues for U.S. law.

1. With or without a rescission of the original Ambassador’s letter, should the U.S. court grant immunity to Zedillo?

The original September 2012 letter from the U.S. State Department to the U.S. Department of Justice said “a sitting head of state’s immunity is based on his status as the incumbent office holder and extends to all of his actions.” (Emphasis added.)

On the other hand, the State Department letter went on, the “residual immunity of a former official . . . is based upon the character of that official’s conduct and extends only to acts taken in an official capacity. . . . [The] Department of State generally presumes that actions taken by a foreign official exercising the powers of his office were taken in his official capacity. This . . . is particularly appropriate when a former head of state is sued, because holders of a country’s highest office may be expected to be on duty at all times and to have wide-ranging responsibilities.” (Emphasis added.)

The State Department letter mentioned the Mexican Ambassador’s request for immunity based upon his assertion that “any actions [by Zedillo] . . . in connection with the events alleged in the complaint were taken in the course of his official duties as head of state.” This Mexican government assertion, the State Department letter says, corroborates its assessment to the same effect. In addition, the plaintiffs have not rebutted this assessment.

Therefore, the State Department’s letter concluded that Zedillo’s “alleged actions were taken in an official capacity, and he enjoys immunity from this lawsuit.”

This letter, taken by itself, might suggest that immunity might still be open even if the Mexican Ambassador’s letter were rescinded as it only corroborated that Zedillo was acting in his official capacity.

However, when the State Department in another case declined to request immunity for a former Somali official, it said any immunity protecting foreign officials for their official acts ultimately belongs to the sovereign, not the official. Thus, the foreign state must claim or waive any such immunity for the official. Where there is no recognized government, as was the case for Somali at the time, there was no one that could assert such a claim or make such a waiver. As a result, the State Department concluded that the former official did not enjoy immunity, and the court endorsed that conclusion and rejected the immunity claim.

Thus, if the Mexican Ambassador’s letter to the State Department is rescinded and not replaced by another request for immunity, the principles enunciated in the Somali case suggests that Zedillo would not be entitled to immunity.

2. Failure To Exhaust Mexican Remedies.

Another U.S. issue is whether the plaintiffs have failed to exhaust whatever remedies they have in Mexico.

Some of the claims in the U.S. case are asserted under the Torture Victims Protection Act (28 U.S.C. § 2350 note), which provides, in part, “A court shall decline to hear a claim under this section if the claimant has not exhausted adequate and available remedies in the place in which the conduct giving rise to the claim occurred [here, Mexico].” There is no similar provision in the Alien Tort Statute, under which some of the claims are also asserted, but the U.S. Supreme Court in Sosa v. Alverez-Machain suggested that failure to exhaust remedies in the other country could be a limitation on ATS claims.

Thus, the issue for the U.S. court in such a hypothetical situation would be whether the claims under Mexican law are “adequate and available” and whether the plaintiffs had exhausted whatever Mexican remedies they had. [3]

Conclusion

I would anticipate that the plaintiffs’ lawyers in the U.S. case will advise the court in Connecticut of the Mexican court decision;[4] that the U.S. court will wait until there is a final resolution of the Mexican case before doing anything, and if the recent Mexican decision is not reversed, request the views of the State Department on the significance of the former; and thereafter the U.S. court will make a decision on whether or not to grant immunity to Zedillo.

[1] The Yale Daily News and ctlatinonews also have articles about the Mexican court decision.

[2] Because of the significance of the Mexican Ambassador’s letter, its text is attached at the conclusion of this post.

[3] There also should be a U.S. procedural problem if Zedillo now tries to raise the plaintiffs’ alleged failure to exhaust Mexican remedies as a defense in the U.S. case. The original U.S. complaint anticipated such a defense with the allegation that the plaintiffs do not have adequate remedies in Mexico and that they have exhausted their available Mexican remedies. Zedillo’s U.S. motion to dismiss the complaint only asserted immunity, and Rule 12(g) of the Federal Rules of Civil Procedure should prevent him from now raising this affirmative defense by motion.

[4] One of the plaintiffs’ attorneys has said they would so advise the U.S. court and ask it to request the State Department for reconsideration of the immunity issue.

=================================================

EMBASSY OF MEXICO

07654

Washington, DC, on November 4, 2011.

Madam Secretary:

On behalf of my Government, I have the honor to refer to the case v Doe et al. Zedillo Ponce de León, filed with the U.S. District Court for the District of Connecticut as No. 3:11-cv-01433, in place of the former President of Mexico, Ernesto Zedillo Ponce de León.

In this regard, I wish to express my Government’s rejection of any internal process that violates the sovereignty of Mexico, to exercise jurisdiction over alleged acts occurred in territory in which he allegedly spoke the President in his official capacity. In this regard it should be noted that any other act performed by former President Ernesto Zedillo regard to the facts in the lawsuit that gave rise to the case of history, took place in the course of his official duties as head of state and is Therefore, to rule in some sense, the Court would be deciding on actions the government of Mexico sovereign within their own territory.

In light of the above, I would sincerely request the intervention of the Department of State through the Department of Justice before the U.S. District Court for the District of Connecticut, by a suggestion of immunity to former senses of Mexico. In this regard, I note that the recognition of immunity enjoyed by foreign officials for acts performed in their official capacity is largely rooted in a principle of customary international law, whose application has been confirmed many times by the U.S. government, particularly in situations involving heads of state. There are also precedents in American jurisprudence that confirmed the practice.

In this regard, I quote Gemisen v cases. De la Madrid v Habyarimana. Kagame, Giraldo v. Drummond Co., Wei Ye v. Jiang Zemin and Lafontant v. Aristide, as a sign of the instances in which the State Department has intervened in the past the U.S. courts to reaffirm its position on immunity accompanying heads of state, even after completing your order. Enclosed is a legal memorandum that contains more elements on those precedents.

Similarly, I wish to present it as a process which aims to substantiate against former President of Mexico affect the bilateral relationship between Mexico and the United States, in dismissing the action of various national authorities in response to the event that occurred in the village of Acteal, Chiapas in December 1997, the Government made strongly condemned in turn, immediately abocándose research and presentation of those responsible to the law enforcement bodies.

In thanking Your Excellency in advance for your valuable support for the State Department’s intervention in the case of history, I do own the opportunity to renew the assurances of my highest consideration.

Ambassador Arturo Sarukhan

 

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Mexican Court Invalidates Former Mexican President’s Claim of Immunity from Alien Tort Statute and Torture Victims Protection Act Case in U.S.

March 10, 2013

As a prior post reports, in September 2011, a group of Mexican nationals sued former Mexican President, Ernesto Zedillo, in federal court in Connecticut for his alleged complicity in a 1997 massacre in the Mexican village of Acteal. The complaint seeks $10 million in damages under the Alien Tort Statute and the Torture Victims Protection Act.

The U.S. Government on September 7, 2012, suggested that Former Mexican President Ernesto Zedillo should be immune from this lawsuit and that the case should be dismissed. This was based upon a request for such immunity from the Mexican government.

Eighteen days later (September 25th), the U.S. District Court for the District of Connecticut issued an Order To Show Cause requiring the plaintiffs by October 9th (later extended to October 16th) to show cause why the case should not be dismissed on the basis of former head-of state immunity. Simultaneously the court denied Zedillo’s dismissal motion as moot.

On October 16th the plaintiffs filed their Response to Order To Show Cause, Objection to the United States’ Suggestion of Immunity, and Motion To Stay Proceedings. It asserted, with supporting documents, the following:

• that on October 3rd they filed a petition for a writ of amparo in a Mexican federal court asking for a declaration that the Mexican Government’s request for immunity for Zedillo in this case violated Mexican law and the Mexican constitution and, therefore, is a nullity;

• that on October 9th the Mexican court “accepted” the petition, i.e., determined it was not dismissable; and

• that on October 9th the Mexican court also entered another order temporarily suspending the validity of the Mexican Government’s request for immunity for Zedillo in the U.S. case and enjoining any acts in furtherance of that request pending resolution of the Mexican case.

With this showing, the plaintiffs asked the U.S. court (a) to stay proceedings in this case pending the outcome of the Mexican case; or (b) to dismiss the U.S. case without prejudice while tolling the statute of limitations with leave to re-file the U.S. case if they succeed in the Mexican case; and (c) to request the U.S. Department of State to reconsider its position on immunity after the Mexican case is resolved; and (d) to provide guidance as to plaintiffs’ right to amend their complaint or to petition for leave to do so.

As of March 10, 2013, the U.S. case had been reassigned to another District Judge, and the dispute over the claimed immunity had not been resolved by the U.S. court.

On the afternoon of March 10th while walking in San Miguel de Allende, Mexico, I saw the page 1 headline in an issue of LaJournada, a Mexican newspaper: “Inconstitucional, pedir inmunidad para Zedillo en EU.”  Even my limited Spanish language abilities told me that a Mexican court had decided that the Mexican government’s request for immunity for Zedillo in this U.S. case violated the Mexican constitution.

According to a Google English translation of the article on the Internet, a Mexican judge had determined that Mexican authorities had violated the Mexican Constitution and international human rights treaties by asking the U.S. government to grant immunity to former President Zedillo.

One of the treaties was the Havana Convention, which states that “no immunities must be claimed that are not essential to the performance of official duties,” and it was violated, the court said, because Zedillo does not currently occupy any public position in the Mexican government. The American Convention on Human Rights was also violated, according to the Mexican court, because immunity for Zedillo causes “undue discrimination and threatening the human right of equality” for those who allegedly were harmed.

I imagine that there will be appeals or further proceedings in the Mexican case. In the meantime, I predict that the U.s. court will do nothing until the Mexican case is finally resolved.

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Appellate Court Affirms Denial of Common Law Immunity to Former Somali Official

November 7, 2012

As discussed in a prior post, on February 15, 2011, the U.S. District Court for the Eastern District of Virginia decided that a former Somali General, Mohamed Ali Samantar, was not entitled to the former foreign government official immunity under federal common law.[1]

On November 2, 2012, the U.S. Court of Appeals for the Fourth Circuit affirmed this decision in an opinion that provided an interesting analysis of the role and power of the U.S. Department of State and of the federal courts in making decisions on immunity of foreign officials in civil lawsuits.

First, the appellate court said that there was common law immunity for a foreign head-of-state and that the courts must give “absolute deference” to the State Department’s position on such claims. This conclusion was based on the U.S. Constitution’s assignment in Article II, § 3, of the power to “receive Ambassadors and other public Ministers” to the Executive Branch. The State Department, however, has never recognized Samantar as the head of state for Somalia. Therefore, this type of immunity was not applicable in this case.

Second, the Fourth Circuit held that federal common law also provided immunity for foreign government officials who were not heads of state and that State Department’s determinations on such claims carried “substantial weight” for the courts, but were “not controlling.”

The latter type of immunity, said the Fourth Circuit, is based on the “foreign official’s actions, not his or her status, and therefore applies whether the individual is currently a government official or not.” But not all such actions are entitled to such immunity. Indeed, the court concluded that “under international and [U.S.] domestic law, officials from other countries are not entitled to foreign official immunity for jus cogens violations, even if the acts were performed in the defendant’s official capacity.”

The appellate court correctly observed, “A jus cogens norm, also known as a ‘preemptory norm of general international law,’ can be defined as ‘a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.” Moreover, “Prohibitions against the acts involved in this case–torture, summary execution and prolonged arbitrary imprisonment–are among these universally agreed-upon [jus cogens] norms.”

In this case, the Fourth Circuit added, the State Department suggested to the court that Samantar was not entitled to the foreign official immunity because there was no Somali government to assert this immunity for him and because he was a permanent resident alien of the U.S. These are additional factors supporting the denial of this immunity to Samantar.

Therefore, Samantar was not entitled to the latter type of immunity.[2]

[1] Thereafter the district court held him liable for $21 million of compensatory and punitive damages in a civil lawsuit under the U.S. Alien Tort Statute and Torture Victims Protection Act.

[2] See also Roberts, 4th Circuit again denies immunity in Samantar, IntLawGrrls (Nov. 6, 2012).

 

 

 

 

 

 

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Case Against Corporations Under the Alien Tort Statute Is Allowed To Proceed

November 1, 2012

On November 1, 2012, the U.S. District Court for the District of Eastern Virginia allowed a lawsuit by four Iraqis to proceed against two U.S. corporations for their alleged direct participation in torture and other illegal conduct at Iraq’s Abu Ghraib prison.

The case, Al Shimari v. CACI, which was commenced in June 2008, has had a complex history.[1]

In March 2009, the district court granted the corporations’ motion to dismiss the claims under the U.S. Alien Tort Statute (ATS), but denied the motion to dismiss the other claims under state common law for assault, battery, sexual assault, infliction of emotional distress, and negligent hiring and supervision. (Al Shimari v. CACI, 657 F. Supp. 2d 700 (E.D. Va. 2009).)

In September 2011 a panel of the U.S. Court of Appeals for the Fourth Circuit, 2-1, reversed the district court’s denial of the motion to dismiss the state law claims on the ground that the corporate defendants were immune.

However, in May 2012, that court, en banc, dismissed the defendants’ appeal on the procedural ground that the appellate court had no jurisdiction over the premature appeal. The appellate court, therefore, remanded the case to the district court. (Al Shimari v. CACI Int’l, Inc., 679 F.3d 205 (4th Cir. 2012) (en banc).)

On October 11, 2012, the plaintiffs moved the district court to reverse its March 2009 decision and reinstate the ATS claims. (Plaintiffs’ Memorandum of Law in Support of Their Motion Seeking Reinstatement of the Alien Tort Statute Claims, Al Shimari v. CACI, No.1:08CV827 (E.D. Va. Oct. 11, 2012).)

On November 1st the court did just that with an order to follow. (Civil Minutes, Al Shimari v. CACI, No.1:08CV827 (E.D. Va. Nov. 1, 2012).)

This plaintiffs’ victory may be short-lived because the U.S. Supreme Court has a case under advisement on the issue of whether corporations may be held liable under the ATS.

[1] See generally Center for Const’l Rights, Al Shimari v. CACI.

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Re-argument of Important Human Rights Case in U.S. Supreme Court

October 4, 2012

On October 1, 2012, the U.S. Supreme Court heard re-arguments in an important human rights case, Kiobel v. Royal Dutch Petroleum Co. (Sup. Ct. No. 10-1491).[1]

This case involves claims by a putative class of Nigerians against Netherlands/United Kingdom corporations (Royal Dutch Petroleum Co. and Shell Transport and Trading Company PLC (Shell)) for allegedly assisting in certain human rights violations in Nigeria in 1993-1995.

The claims in this case were asserted under the Alien Tort Statute (ATS) that provides that U.S. federal district courts have “jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”[2]

The order for rehearing asked the parties to address the following issue:

  • Whether and under what circumstances the [ATS] . . .  allows courts to recognize a cause of        action for violations of the law of nations occurring within the territory of a sovereign other than the United States.”

This issue was addressed in the Petitioners’ Supplemental Opening Brief; the Supplemental Brief for Respondents; the Supplemental Reply Brief for Petitioners; 31 amici curiae briefs supporting the petitioners; 14 amici curiae briefs supporting respondents; and 7 amici curiae briefs supporting neither party.  One of those not supporting either party was the U.S. Government.[3]

During the hour-long hearing the Court heard from lawyers representing the plaintiffs-petitioners, the defendants-respondents and the U.S. Government. They all were actively questioned by eight of the Justices with only Justice Thomas not participating. Those eight Justices all seemed to be searching for a way to limit the reach of the ATS, especially when such cases adversely affected U.S. foreign policy.[4]

I will not attempt to predict how the Court will resolve the case. Instead I will set forth how I think the Court should do so.

First, Corporations are not immune from lawsuits under the ATS.

Second, As the Court held in Sosa v. Alverez-Machain in 2004, the ATS is a jurisdictional statute.[5] The Court’s presumption against extraterritorial application of U.S. statutes (unless Congress specifically states otherwise), applies to statutes that impose substantive U.S. regulatory measures, not to jurisdictional statutes.[6] Therefore, there is no issue of extraterritoriality with respect to the ATS.

Third, there are various existing legal doctrines and jurisprudence that federal courts have used and should use, in appropriate cases, to dismiss ATS cases at the outset upon a motion by the defendant asserting such affirmative defenses. They include the following:

  • The court lacks personal jurisdiction over the defendant because it does not have sufficient contacts with the forum to make litigation consistent with U.S. notions of fair play and substantial justice as guaranteed by the Fifth and Fourteenth Amendments’ due process clauses.[7]
  • The case is not brought within 10 years after the acts in question under the statute of limitations borrowed from the Torture Victims Protection Act unless under established principles of equity the statute of limitations should be tolled or stayed.[8]
  • The plaintiff has failed to exhaust remedies in the country where the acts occurred unless those remedies are unavailable or futile.[9]
  • A foreign court is the more appropriate and convenient forum than an U.S. courts under the established principles of forum non conveniens.[10]
  • An individual defendant is entitled to official immunity according to the U.S. Department of State.[11]
  • A non-individual defendant is entitled to immunity under the Foreign Sovereign Immunities Act.[12]
  • The “act of state” doctrine protects the conduct in question.[13]
  • The case presents a “political question” that is inappropriate for judicial resolution.[14]
  • The case should be rejected because of concerns about its impact on U.S. foreign relations or because of “international comity.”[15]
  • The case presents an issue of U.S. state secrets that prevent adjudication of the case.[16]

Fourth, the affirmative defenses just mentioned were not raised by the defendants-respondents in                     their appeal to the U.S. Court of Appeals for the Second Circuit and, therefore, are not before            the Supreme Court for decision.

Fifth, the Second Circuit is reversed, and the case is remanded to the District Court for further        proceedings in accordance with this opinion.

Within the next four months the Court should issue its opinion(s) in this case.

[1]  Prior posts reviewed the procedural background of this case, the Second Circuit decision rejecting such liability, the initial Supreme Court argument in this case regarding whether corporations could be held liable under the ATS, and the Supreme Court’s order for rehearing in this case.

[2] Earlier posts have reviewed the history of the ATS for the periods 1789-1979, 1980 (Filartigacase), 1980-2004, 2004 (Sosa case) and 2004-present.

[3] All of the briefs in Kiobel are available on the website of the Center for Justice and Accountability, a human rights organization, along with its summary of 18 of the 52 amici curiae briefs.

[4] The transcript of that hearing is available online. Reports about the hearing are available in the New York Times, the Washington Post, the Wall Street Journal and the widely followed U.S. Supreme Court blog. In an editorial the New York Times supported sustaining the ATS in this case; the Wall Street Journal did not.

[5]  Sosa v. Alvarez-Machain, 542 U.S.692, 713 (2004).

[6] Morrison v. Australia Nat’l Bank, 130 S. Ct. 2869, 2877 (2010).

[7]  In one of the most recent Supreme Court cases on personal jurisdiction in another context, the Court unanimously determined, in an opinion by Justice Ginsburg, that the South Carolina courts did not have personal jurisdiction over  three corporations that were organized and operating in France, Luxembourg and Turkey, but were not registered to do business in South Carolina, had no place of business, employees or bank accounts in the state, did not design, manufacture or advertise its products in the state and did not solicit business in the state or sell or ship products to customers in the state. (Goodyear Dunlop Tires Operations, S.A. v. Brown, No. 10-76 (Sup. Ct. June 27, 2011). This defense has ended ATS cases for some foreign corporate defendants. (E.g., Doe v. Unocal Corp., 248 F.3d 915, 930-31 (9th Cir. 2001) (French corporation).) However, Shell and the other defendants in the Kiobel case did not raise this defense and thereby waived it under Fed. R. Civ. Pro. 12 (h)(1); another defendant (a Nigerian subsidiary) was dismissed from this case on this ground.

[8] E.g., Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424, 462 (D.N.J. 1999); Doe v. Saravia, 348 F. Supp. 2d 1112, 1146-48 (E.D.. Cal. 2005)(10-year period tolled or stayed because plaintiff could not have obtained justice due to legitimate fear of being killed for making a claim).

[9] This defense was suggested by the Supreme Court in Sosa, 542 U.S. at 733 n.21, and the lower courts are split as to whether it is appropriate in ATS cases. (E.g., Lizarbe v. Rondon, 642 F. Supp. 2d 473 (D. Md. 2009)(civil remedy in Peru inadequate because it is contingent on conclusion of criminal charges that can take years and because civil damages are ineffective).)

[10] Here are two examples of dismissal of ATS cases on the forum non conveniens ground. (Aldana v. Del Monte Fresh Produce N.A., 578 F.3d 1283 (11th Cir. 2009), cert.denied, 549 U.S. 1032 (2010) (litigation in Guatemala, but with the proviso that the motion would be reconsidered if plaintiffs had to return to Guatemala where they feared for their safety); Turedi v. Coca-Cola Co., 343 Fed. Appx. 623 (2d Cir. 2009) (litigation in Turkey).) But such a dismissal was rejected in Licea v. Curacao Drydock Co., 537 F. Supp. 2d 1270, 1274 (S.D. Fla. 2008) (Cuban plaintiffs would be in danger if forced to litigate in Curaco where they had been subjected to slavery-like conditions). In Kiobel,  Shell did not assert the forum non conveniens defense and, therefore, waived it. Shell did do so in a parallel case, but the court rejected the defense. (Wiwa v. Royal Dutch Pet. Co., 226 F.3d 88, 108 (2d Cir. 2000), cert. denied, 532 U.S. 941 (2001).)

[11]  For example, the issue of official immunity for former government officials of Somalia and Mexico has been examined in prior posts.

[12] A prior post looked at some of the basic provisions of the Foreign Sovereign Immunities Act while another post discussed the Supreme Court case that decided that his statute did not protect former foreign government officials.

[13] This defense was suggested by the Supreme Court in Sosa, 542 U.S. at 733 n.21, and it has been used in ATS cases. E.g., Doe v. Israel, 400 F. Supp. 2d 86, 114 (D.D.C. 2005) (acts of Israeli government).

[14] This defense was suggested by the Supreme Court in Sosa, 542 U.S. at 733 n.21, and it has been used in ATS cases. E.g., Corrie v. Caterpiller, 503 f. 3d 974 (9th Cir. 2007) (dismissal of ATS claim for selling bulldozers to Israeli Defense Force);  Schneider v. Kissinger, 412 F.3d 190 (D.C. Cir. 2005), cert. denied, 547 U.S. 1069 (2006) (dismissal on political question ground of ATS case against former U.S. National Security Advisor over killing of Chilean general in 1970 coup d’etat).

[15] E.g., Ungaro-Benages v. Dresdner Bank AG, 379 F. 3d 1227, 1237-39 (11th Cir. 2004).

[16] Foreigners sued an U.S. corporation under the ATS and TVPA for allegedly aiding and abetting the CIA’s extraordinary rendition of five foreign nationals to other countries for torture and interrogation when the corporation provided flight training and logistical and support services to the aircraft and crew. Before the defendant answered the complaint, the U.S. Government intervened and moved to dismiss the complaint under the state secrets doctrine. The district court granted the motion, which the Ninth Circuit, en banc, ultimately affirmed, 6 to 5. The court held that the state secret privilege established by United States v. Reynolds, 348 U.S. 1 (1953), required dismissal because “there is no feasible way to litigate [the defendant's] alleged liability without creating un unjustifiable risk of divulging state secrets.” (Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070 (9th Cir. 2010) (en banc).)

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Posted in History, Law, Other countries, Politics | 1 Comment »

The U.S. State Department Suggests Former President of Mexico Is Immune from Suit in U.S. Federal Court for Alleged Human Rights Violations

September 17, 2012

Ernesto Zedillo

On September 16, 2001, ten anonymous Mexican nationals sued Ernesto Zedillo, the former President of Mexico, in U.S. federal court in New Haven, Connecticut. The complaint asserted claims for money damages in excess of $10 million under the Alien Tort Statute (ATS) and the Torture Victims Protection Act (TVPA) over the December 22, 1997, Mexican militia’s attack on civilians in the village of Acteal in Chiapas, Mexico. On January 6, 2012, Zedillo moved to dismiss the complaint on the ground that as a former Mexican president, he was immune from the lawsuit. All of this was explained in a prior post and a January 10th comment thereto.

Not much happened in this lawsuit until September 7, 2012, when the U.S. Government filed its suggestion that Zedillo should be immune from the suit and the case be dismissed. The Government did so in a letter from Harold Koh, the Department of State’s Legal Advisor and a former Dean of the Yale Law School, to the U.S. Department of Justice and in a formal pleading in the lawsuit entitled “Suggestion of Immunity Submitted by the United States of America.”

The letter stated that the U.S. State Department had determined that Zedillo was immune from the suit. It did so after “[t]aking into account principles of immunity articulated by the Executive Branch in the exercise of its constitutional authority over foreign affairs and informed by customary international law, and considering the overall impact of this matter on the foreign policy of the [U.S.].”

The letter and the formal filing set forth the following principles of the common law of officials immunity:

  • Under the law and practice of nations, a foreign sovereign is generally immune from lawsuits in the territory of another sovereign.
  • Until the 1976 enactment of the Foreign Sovereign Immunities Act (FSIA), U.S. federal courts routinely “‘surrendered’ jurisdiction over suits against foreign sovereigns ‘on recognition, allowance and certification of the asserted immunity by the political branch of the government charged with the conduct of foreign affairs when its certificate to that effect was presented to the court.’”
  • Under the U.S. Constitution, the executive branch of the federal government had the responsibility for foreign affairs.
  • A “sitting head of state’s immunity is based on his status as the incumbent office holder and extends to all his actions.” (Emphasis added.)
  • For a former official, on the other hand, immunity “is based upon the character of that official’s conduct and extends only to acts taken in an official capacity” with a presumption that “actions taken by a foreign official exercising the powers of his office were taken in his official capacity.”
  • Such a presumption “is particularly appropriate when a former head of state is sued, because holders of a country’s highest office may be expected to be on duty at all times and to have wide-ranging responsibilities.”
  • That presumption is corroborated when “the foreign government itself has asserted that the actions of its official were taken in an official capacity.”

Here, the Mexican government had asserted that Zedillo’s actions that are challenged in this lawsuit were taken in his official capacity as President of Mexico. Indeed, according to the letter, this assessment of Zedillo’s actions is confirmed by the allegations of the complaint.

The letter’s reasons and conclusion are endorsed by the Suggestion of Immunity Submitted by the United States of America.

A Duke University Law Professor, Curtis A. Bradley, observed that the courts had the authority to make the ultimate decision on immunity for former officials and that the courts usually side with the State Department’s determination. This was certainly true in the ATS and TVPA case against a former Somali general as seen in a prior post.

I cannot see any legitimate basis for any challenge to this suggestion of immunity and anticipate that the District Court will conclude that Zedillo is immune and dismiss the case.

 

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Posted in History, Law, Other countries, Politics | 7 Comments »

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