Acteal Massacre – dwkcommentaries

U.S. Court of Appeals Affirms Dismissal of Compliant against Former Mexican President

As previously noted, last year the U.S. District Court in New Haven, Connecticut dismissed a complaint against former Mexican President Ernesto Zedillo that had been brought under the U.S. Alien Tort Statute and the Torture Victims Protection Act based upon the alleged 1997 massacre in the Mexican village of Acteal.[1]

On appeal, the plaintiffs conceded that the district court properly had dismissed their complaint. Instead, the plaintiffs argued that the district court had erred in not permitting them to amend their complaint, for which the appellate court could reverse only if the district court had abused its discretion and if any amendment would not be futile.

The Second Circuit Court of Appeals held that any amendment would be futile since the U.S. Government had submitted a suggestion of immunity for Mr. Zedillo and since that suggestion is dispositive.

Therefore, the Second Circuit affirmed the dismissal in a short Summary Order on February 18^th. (Doe v. Zedillo, No. 13-3122 (2d Cir. Feb. 18, 2014).)

[1] Seven prior posts have discussed the Zedillo case in the district court.

Dismissal of U.S. Lawsuit Against Ex-President of Mexico

On July 18th the U.S. District Court for the District of Connecticut dismissed a private lawsuit under the U.S. Alien Tort Statute and Torture Victims Protection Act against Ernesto Zedillo, a former President of Mexico.[1]

The written dismissal order merely states that it was for the reasons stated at the oral argument that day. Those reasons, according to the attorney for Mr. Zedillo, centered on the court’s deferring to the U.S. Department of State’s conclusion that Mr. Zedillo was entitled to immunity as a former head of state of Mexico sued for alleged acts taken in his official capacity. This was confirmed in the transcript of the court’s ruling.

The State Department’s position, which was provided to the court in September 2012, was based upon “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.].” These principles of officials’ immunity included the following:

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.”

The court’s dismissal also relied upon the U.S.’ advising the court on May 15, 2013, that it did not intend to appear at the July 18th hearing and that it “rests on its [previous] Suggestion of Immunity.” The court saw this advice “as a reaffirmation of the State Department’s Suggestion of Immunity, but even if it were a Statement of Neutrality, as the Plaintiffs’ contend, the fact is that the State Department has not withdrawn its Suggestion of Immunity.”

The U.S. court also noted that on May 23rd an unanimous Mexican appellate court reversed a lower court’s ruling that the Mexican government’s request for Zedillo’s immunity was illegal under Mexican law.[2]

The Mexican appellate court held that the Mexican plaintiffs in the U.S. case were not injured bythat Mexican government’s request because it was a “communiqué between Sates, and is a suggestion or proposal of immunity that the neighboring country [the U.S.] may or may not accept.” The appellate court also denied a motion to have the Mexican Supreme Court of Justice review the case, thereby finally ending the Mexican case.

According to the U.S. court, “even if . . . [the lower Mexican court’s decision had been affirmed], I find that it would ultimately be irrelevant to this Court’s determination of whether the Defendant is immune from this lawsuit because the Plaintiffs have cited no authority, and I’m not aware of any authority, for the proposition that the impropriety of such a request by the Mexican government would be sufficient justification for a court to disregard our own State Department’s Suggestion of Immunity.”

The U.S. case should also be over. Any appeal by the plaintiffs, in my judgment, would be fruitless.

The U.S. case was brought by ten anonymous Mexicans alleging that Mr. Zedillo had been complicit in a a 1997 massacre in the Mexican village of Acteal in the southern state of Chiapas.

[1] Various aspects of this U.S. case have been discussed in prior posts.

[2] The decision of the lower Mexican court was discussed in posts on March 10 and March 26, 2013.

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.

Former President of Mexico Is Sued in U.S. Federal Court for Alleged Human Rights Violations

On September 16, 2011, ten anonymous Mexican nationals sued Ernesto Zedillo, the former President of Mexico, in U.S. federal court in New Haven, Connecticut.[1]

The complaint asserts claims for money damages in excess of $10 million under the Alien Tort Statute (ATS) and the Torture Victims Protection Act (TVPA).[2] The ATS allows claims by “an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”[3] The TVPA allows claims by an “individual’s legal representative” who has been subject to “extra judicial killing” against an “individual [acting] under actual or apparent authority, or color of law, of any foreign nation” who commits the extra-judicial killing.[4]

The case centers on a Mexican militia’s December 22, 1997, attack on civilians in the village of Acteal in Chiapas, Mexico. At the time some of the villagers were troubled by the fighting in their area involving an indigenous insurgent group, the Zapatistas, and had formed a pacifist group known as “Las Abejas” or “The Bees.” On December 21st they started a retreat in and around their local church to pray and fast in the name of peace. On the second day of the retreat an anti-Zapatista militia armed with assault rifles surrounded the church and opened fire, killing 45 and wounding 17.[5]

Zedillo, shortly after his election as President in 1994, allegedly decided to break a ceasefire with the Zapatistas and instituted a plan know as “Plan de Campana Chiapas ’94,” which involved arming and training local militia groups. In addition, the Mexican military and Zedillo allegedly were involved or at least aware of the Acteal attack. Afterwards, Zedillo and his administration allegedly were actively engaged in trying to cover up the Mexican government’s involvement in the massacre. This cover-up included charging and convicting innocent people of the crime, as was confirmed in 2009 by the Mexican Supreme Court when it overturned 20 of the 37 convictions on the grounds that the prosecution had fabricated testimonies and tampered with evidence. [6]

Zedillo has not yet responded to the complaint, but immediately after the suit was commenced he said the accusations were “infamous and irresponsible” and “totally groundless and obviously false.” He had similar dismissive comments in 2005 about a complaint about the Acteal massacre that had been filed against Mexico in the Inter-American Commission on Human Rights.[7] In 2010, by the way, the Commission decided that the complaint was admissible, i.e., subject to further proceedings, on most of Mexico’s alleged violations of the American Convention on Human Rights with respect to this incident.[8]

The Connecticut lawsuit was filed over six years after the expiration of the 10-year statute of limitations for suits under the ATS and the TVPA. However, under certain circumstances this limitations period can be suspended or tolled. Thus, we can anticipate that Zedillo will raise this affirmative defense. Indeed, the plaintiffs’ complaint anticipates this defense by alleging that the statute of limitations should be suspended or tolled because of the alleged cover-up of governmental involvement in the massacre that was not revealed until the Mexican Supreme Court’s August 12, 2009, reversal of 20 convictions for the reasons previously stated and because of the government’s intimidation of members of the Chiapas indigenous community.[9]

Another affirmative defense that can be anticipated is the plaintiffs’ alleged failure to exhaust “adequate and available remedies in the place in which the conduct giving rise to the claim occurred [here, Mexico].” Again the complaint anticipates this defense with allegations of absence of adequate legal remedies in Mexico and of their exhaustion of the available remedies.[10]

By January 6, 2012, Zedillo is to file his motion to dismiss for lack of subject matter jurisdiction that will include a request for the court to ask the U.S. government for its opinion as to whether Zedillo has immunity as a former head of a sovereign state.[11]

Since 2002 Zedillo has been the Director of the Yale Center for the Study of Globalization and is believed to live in the New Haven, Connecticut area.[12]

[1] Henderson & Stephenson, Zedillo accused of massacre cover-up, Yale Daily News (Sept. 21, 2011); Navarro, Zedillo faces massacre claims in U.S., Guardian (Dec.27, 2011); Civil Docket Sheets, Doe v. Zedillo, Case No. 3-11-cv-01433-AWT (D. Conn. as of Dec. 28, 2011); 1997 Acteal Massacre, http://acteal97.com. It is surprising that there has been no mention of this case in the New York Times or Washington Post.

[2] Id.

[3] See Post: The Alien Tort Statute, 1789-1980 (Oct. 21, 2011); Post: U.S. Circuit Court’s 1980 Decision Validates Use of Alien Tort Statute To Hold Foreign Human Rights Violators Accountable (Oct. 23, 2011); Poat: The Alien Tort Statute, 1980-2004 (Oct. 25, 2011); Post: Alien Tort Statute Interpreted by U.S. Supreme Court in 2004 (Nov. 9, 2011); Post: The Alien Tort Statute, 2004-Present (Nov. 14, 2011).

[4] Post: The Torture Victims Protection Act (Dec. 10, 2011).

[5] See n.1 supra. The “Las Abejas” or “The Bees” have said that the plaintiffs are not members of their group and that their group is not interested in obtaining money for the massacre. (Stephenson, Plaintiffs in Zedillo case questioned, Yale Daily News (Oct. 5, 2011); Stephenson, Zedillo lawsuit lacks clear backers, Yale Daily News (Oct. 19, 2011).)

[6] See n.1 supra.

[7] Id.; Post, Zedillo says allegations are untrue, Yale Daily News (Feb. 14, 2005).

[8] Manuel Santiz Culebra, et al. (Acteal Massacre), Rep. No. 146/10 (IACHR Nov. 1, 2010).

[9] Complaint ¶¶ 120-133. See 28 U.S.C. § 1350, note §2(c ). See Post: Litigation Against Conspirators in the Assassination of Oscar Romero (Oct. 10, 2011); Post: Former Salvadoran Generals Held Liable for $54.6 Million for Failure To Stop Torture (Nov. 11, 2011); Post: Former Salvadoran Vice-Minister of Defense Held Liable for $6 Million for Torture and Extrajudicial Killing (Nov. 13, 2011); Post: The Torture Victims Protection Act (Dec. 10, 2011).

[10] Complaint ¶¶ 234-238.. See 28 U.S.C. § 1350, note §2(b). See posts in n.9 supra.

[11] Scheduling Order, Doe v. Zedillo (Dec. 6, 2011). Within 30 days after the court dockets the U.S. government’s substantive response to such a request, the plaintiffs shall file their response to the dismissal motion. Within another 30 days after the plaintiffs’ response, Zedillo shall file his reply brief. (Id.) After all of these papers have been submitted, presumably the court will schedule a hearing on the dismissal motion and sometime thereafter issue the court’s decision on that motion.

[12] Ernesto Zedillo Biography, http://www.ycsg.yale.edu/center/zedillo.html;Lee, Zedillo takes globalization center post, Yale Daily News (April 5, 2002).