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

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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As a retired lawyer and adjunct law professor, Duane W. Krohnke has developed strong interests in U.S. and international law, politics and history. He also is a Christian and an active member of Minneapolis’ Westminster Presbyterian Church. His blog draws from these and other interests. He delights in the writing freedom of blogging that does not follow a preordained logical structure. The ex post facto logical organization of the posts and comments is set forth in the continually being revised “List of Posts and Comments–Topical” in the Pages section on the right side of the blog.

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