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.
Comment: District Court Orders Plaintiffs To Show Cause Why Case Should Not Be Dismissed # 319A–10/17/12
As the post reports, the U.S. Government on September 7, 2012, suggested that Senor Zedillo should be immune from this lawsuit and that the case be dismissed.
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.
This Order was prefaced by a citation of three U.S. Supreme Court cases that held that the federal courts are bound by such suggestions of 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 asserts, 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 this 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) request the U.S. Department of State to reconsider its position on immunity after the Mexican case is resolved; and (d) provide guidance as to plaintiffs’ right to amend their complaint or to petition for leave to do so.
Zedillo has not yet responded to this action by the plaintiffs, and the court has not yet ruled on their response to the order to show cause.
I suspect that the U.S. court will not do anything until after Zedillo has responded and that unless the plaintiffs have misrepresented the status of the Mexican case, the U.S. court will informally or formally stay the U.S. case until the Mexican case is resolved.
Análisis de los sucesos del sexenio de Ernesto Zedillo que implicaron la violación de los derechos humanos de un amplio sector de la sociedad mexicana.
Este documental refuta las versiones oficiales y las versiones revisionistas que en fechas recientes se elaboran con la pretensión de exculpar al estado mexicano de su participación en los acontecimientos de Acteal, el 23 de diciembre de 1997.
El genocida invisible recoge la voz de los especialistas que desentrañan, alrededor de los hechos de Acteal y El Charco, la colusión de autoridades de diferentes niveles de gobierno en actos de tortura y asesinato. El testimonio de un paramilitar de ‘Paz y Justicia’ aporta elementos valiosos para la comprensión de la estrategia contrainsurgente emprendida por el gobierno del estado de Chiapas.Analysis of the events of the administration of Ernesto Zedillo that involved violation of human rights of a large segment of Mexican society.
This film refutes the official versions and revisionist versions are developed recently with the aim of exculpate the Mexican state of their participation in the events of Acteal on Dec. 23, 1997.
The genocidal collects unseen voice specialists unravel, about the facts of Acteal and El Charco, the collusion of officials of different levels of government in torture and murder. The testimony of a paramilitary ‘Peace and Justice’ provides valuable information for the understanding of the counterinsurgency strategy undertaken by the state government of Chiapas. http://www.youtube.com/watch?v=TgIbnEzmuAY
Gracias. Here is the Google “Translate” translation of the above comment:
Analysis of the events of the administration of Ernesto Zedillo that involved violation of human rights of a large segment of Mexican society.
This film refutes the official versions and revisionist versions are developed recently with the aim of exculpate the Mexican state of their participation in the events of Acteal on Dec. 23, 1997.
The genocidal collects unseen voice specialists unravel, about the facts of Acteal and El Charco, the collusion of officials of different levels of government in torture and murder. The testimony of a paramilitary ‘Peace and Justice’ provides valuable information for the understanding of the counterinsurgency strategy undertaken by the state government Chiapas.Analysis of the events of the administration of Ernesto Zedillo That Involved violation of Human Rights of a large segment of Mexican society.
This film refutes the official versions and revisionist versions are Recently Developed With The aim of exculpate the Mexican state of Their participation in the events of Acteal on Dec. 23, 1997.
The genocidal collects Specialists unravel unseen voice, about the facts of Acteal and El Charco, the collusion of Officials of Different levels of government in torture and murder. The testimony of a paramilitary ‘Peace and Justice’ Provides valuable information for the Understanding of the counterinsurgency strategy Undertaken by the state government of Chiapas. http://www.youtube.com/watch?v=TgIbnEzmuAY