torture – Page 2 – dwkcommentaries

U.N. Human Rights Committee’s Hearings about U.S. Human Rights

As discussed in a prior post, in March 2014, the United Nations’ Human Rights Committee (the Committee) issued a negative evaluation of how the United States of America (U.S.) was implementing and complying with the International Covenant on Civil and Political Rights (ICCPR or Covenant), which is regarded as an important part of the International Bill of Rights. That prior post reviewed the background of the ICCPR and certain events preceding the Committee’s evaluation.

Now we look at the hearings that lead up to that negative evaluation. The evaluation itself will be the subject of another post.

The Committee’s Hearings[1]

On March 13 and 14, 2014, the Committee held sessions or hearings in Geneva, Switzerland regarding the U.S. report and other information.

The Committee’s questions focused on racial disparities in the criminal justice system; racial discrimination and profiling; police brutality; treatment of the homeless population; the death penalty; gun violence (including stand-your-ground laws); detention of immigrants; drone attacks; “enhanced interrogation techniques” including water boarding; National Security Agency surveillance; treatment of detainees held in Guantanamo; and transfers or renditions of detainees to third countries that practiced torture. Other covered issues were restrictions on voter registration and alleged mistreatment of mentally-ill and juvenile prisoners.

The Committee encouraged the U.S. to disclose a Senate investigative report on a Central Intelligence Agency (CIA) interrogation program that reportedly involved torture. The U.S. delegation’s insistence that the NSA’s mass collection of data was lawful and subject to substantial oversight was disputed by non-governmental groups that attended the sessions.

One Committee member, Walter Kälin,[2] was especially critical in his comments and questions. Here a few of those comments:

He attacked the US government’s refusal to recognize the ICCPR’s mandate over its actions beyond its own borders. He said if the U.S. position were adopted universally, it would foster “impunity and lack of accountability” for human rights violations.
Kälin said, “One hundred and forty-four cases of people wrongfully convicted to death [in the U.S.] is a staggering number.” He pointed out the “disproportional representation of African Americans on death rows . . . ‘Discrimination is bad, but it is absolutely unacceptable when it leads to death.’”
Kälin pointed to another “‘staggering figure’ – that there are 470,000 crimes committed with firearms each year, including about 11,000 homicides. . . . [M]uch more needs to be done to curb gun violence.”

The Committee’s Chairperson, Sir Nigel Rodley of the United Kingdom,[3] addressed the issue of legal opinions in the George W. Bush Administration that provided a purported legal justification for the “enhanced interrogation” methods. Sir Nigel said, “When evidently seriously flawed legal opinions are issued which then are used as a cover for the committing of serious crimes, one wonders at what point the authors of such opinions may themselves have to be considered part of the criminal plan in the first place?” He added, “Of course we know that so far there has been impunity.”

Chairperson Rodley also zeroed in on the issue of extraterritorial application of the ICCPR. He said at the conclusion of the hearings, it “was difficult . . . to understand what principles underlay the [U.S.] non-acceptance of the extraterritorial application of the Covenant.” Indeed, he immediately followed this statement with his exposition of the Committee’s contrary view. In diplomatic language, Rodley was saying the U.S. position was absurd. Here is Sir Nigel’s exposition:

“The relevant applicable principles were the canons of interpretation contained in the Vienna Convention on the Law of Treaties, . . . [which] stated that a treaty should be interpreted in the light of its text, its context, and its object and purpose.”
“Consequently, it was difficult to see how the words of article 2 of the Covenant regarding a State party’s undertaking to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized therein [[4]] were only capable of interpretation as meaning that they applied solely to people who were both within the territory and subject to its jurisdiction. An ordinary, grammatical reading of the article in question supported the interpretation that it applied to everybody in either of the circumstances provided for.”
“Furthermore, the idea that the object and purpose of the treaty was met by saying that its application stopped at the frontier, whatever effective control any State might have over certain individuals, was one that was hardly consistent with the treaty’s object and purpose. That was the position not only of the Committee [5] but also of the International Court of Justice and very many States.”

Conclusion

The Committee’s negative comments at the hearings were a preview of its very critical comments about U.S. human rights in the Committee’s concluding report or “observations.” Another post will discuss that report.

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[1] This account of the hearings is based upon articles in the Guardian (March 13 and 14), the New York Times (March 13), Reuters (March 13), Al-Jazeera (March 14), the International Justice Resource Center and the Committee’s Summary Record (March 14). The archived webcasts of these sessions are available on the web.

[2] Walter Kälin is a preeminent Swiss humanitarian, constitutional lawyer, international human rights lawyer, activist, advocate, legal scholar and law professor. He has been published extensively on issues of human rights law, the law of internally displaced persons, refugee law and Swiss constitutional law. Since Since 2004, Kälin has served as the Representative of the United Nations’ Secretary-General on the Human Rights of InternallyDisplaced Persons, and In 1991-1992, he served as the Special Rapporteur of the Commission on Human Rights on the situation of human rights in Kuwait under Iraqi occupation. He holds degrees from the University of Bern (Dr. Jur.) and the Harvard Law School (LL.M.)

[3] Sir Nigel Rodley since 2001 has been a Committee member and since 2003 has served as its Vice Chair and now its Chair. He also is a Commissioner of the International Commission of Jurists and a trustee of the NGO Freedom from Torture. Since 1990 he has taught law and human rights at the University of Essex and since 1994 has been its Professor of Law and Chair of the Human Rights Centre. Formerly he was Amnesty International’s Legal Advisor and Head of the Legal and Intergovernmental Organisations [sic] Office (1973–1990) and U.N. Special Rapporteur on torture (1993-2001). He is a founding member and former Executive Committee Vice Chairman of INTERRIGHTS (the International Centre for the Legal Protection of Human Rights). He is the author of books and articles about international human rights and holds degrees from the University of Leeds (LLB), New York University (LLM), Columbia University (LLM) and the University of Essex (PhD). In 1998 Queen Elizabeth awarded him the Knight of the British Empire (KBE) for his “services to human rights and international law.”

[4] The complete text of Article 2(1) of the ICCPR states: “Each State Party to the . . . [ICCPR] undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin,property, birth or other status.”

[5] The Committee publishes “general comments” setting forth its interpretation of various provisions of the treaty, and its interpretation of Article 2(1) is set forth in General Comment No. 31 (The Nature of the General Legal Obligation Imposed on States Parties to the Covenant), which was issued on March 29, 2004.

U.N. Human Rights Committee’s Review of U.S. Human Rights

In March 2014, the United Nations’ Human Rights Committee (the Committee) made a very negative evaluation of how the United States of America (U.S.) was implementing and complying with the International Covenant on Civil and Political Rights (ICCPR or Covenant), which is regarded as an important part of the International Bill of Rights.

Before we examine the Committee’s hearings that resulted in that very negative evaluation in subsequent posts, we will look at the background of the ICCPR and the events leading up to the Committee’s hearings and evaluation.

Background of the ICCPR

As discussed in a prior post, the ICCPR was approved and adopted by the United Nations General Assembly on December 16, 1966. The drafting of the treaty was the work of the U.N. Commission on Human Rights, in which the U.S. participated.

The ICCPR (in terms reminiscent of the U.S. Bill of Rights) establishes an international minimum standard of governmental conduct for rights of self-determination; legal redress; equality; life; liberty; freedom of movement; fair, public and speedy trial of criminal charges; privacy; freedom of expression, thought, conscience and religion; peaceful assembly; freedom of association; family; and participation in public life. The ICCPR forbids “cruel, inhuman or degrading treatment or punishment;” slavery; arbitrary arrest; double jeopardy; and imprisonment for debt.

The ICCPR’s Part IV established the Human Rights Committee, and its Article 41 provides that periodically the States Parties to the treaty shall “submit reports on the measures they have adopted which give effect to the rights recognized . . . [in the treaty] and on the progress made in the enjoyment of those rights” and that the Committee “shall study [such] . . . reports . . . . [and make] such general comments as it may consider appropriate.”[1]

Under Articles 28 and 29 of the treaty, its states parties elect the 18 Committee members to four-year terms from “nationals of the States Parties . . . who shall be persons of high moral character and recognized competence in the field of human rights, consideration being given to the usefulness of the participation of some persons having legal experience, . . . [and] who shall be elected and shall serve in their personal capacity.”

The Committee, under Article 31, “may not include more than one national of the same State” and “consideration shall be given to equitable geographical distribution of membership and to the representation of the different forms of civilization and of the principal legal systems.”

As discussed in a prior post, the Covenant went into force on March 23, 1976, in accordance with its Article 49(1), after 35 states had ratified or acceded to the treaty. On October 5, 1977, the U.S. signed the treaty, but it was not until nearly 15 years later (June 8, 1992), that the U.S. ratified this treaty (with reservations) and became a state party thereto. Now there are 168 states parties to the treaty.

Events Leading Up to the Committee’s Evaluation

1. U.S. Report. On December 30, 2011, the U.S. submitted to the Committee its 188-page Fourth periodic report.[2]

The report opened with these words of President Obama,“By no means is America perfect. But it is our commitment to certain universal values which allows us to correct our imperfections, to improve constantly, and to grow stronger over time. . . .”

The report then marched through the U.S. implementation of each of the 27 Articles of the ICCPR.

In conclusion, the U.S. report discussed the Committee’s Concluding Observations on the prior U.S. report that the U.S. “acknowledge the applicability of the Covenant with respect to individuals under its jurisdiction, but outside its territory, as well as its applicability in time of war.” The U.S., however, reiterated its position that the Covenant does not so apply.

With respect to the Committee’s prior request that the U.S. “consider in good faith the interpretation of the Covenant provided by the Committee,” the U.S. continued to reject the Committee’s interpretation on applicability, but said it “appreciates its ongoing dialogue with the Committee with respect to the interpretation and application of the Covenant, considers the Committee’s views in good faith, and looks forward to further discussions of these issues when it presents this report to the Committee.”

2. Committee’s List of Issues. On April 29, 2013, after reviewing the U.S. report and Common Core Document, the Committee issued its six-page, 27-paragraph List of Issues, which asked the U.S. to respond to the following:

U.S. constitutional and legal framework: clarify U.S. position on applicability of Covenant for individuals under its jurisdiction, but outside its territory; measures to ensure state and local authorities comply with the Covenant; whether a national human rights institution will be established; and whether the U.S. will withdraw its reservations to the Covenant.

Non-discrimination and equal rights of men and women: describe efforts to address racial disparities in criminal justice system and to eliminate all kinds of racial profiling against Arabs, Muslims and South Asians; provide information on imposition of criminal penalties on street people and on obstacles to undocumented migrants’ accessing health services and higher education institutions.

Right to life: provide information on various issues regarding the death penalty and victims of gun violence; and clarify how drone attacks allegedly comply with the Covenant and whether senior officers and lower-ranking soldiers have been investigated and punished for unlawful killings in armed conflict.

Prohibition of torture and cruel, inhuman or degrading treatment or punishment and treatment of detainees: provide information on independent investigations of treatment of detainees, whether U.S. regards so-called “enhanced interrogation” to violate the Covenant, why the U.S. has not adopted a statute prohibiting torture within its territory, whether the U.S. systematically evaluates “diplomatic assurances” before transfers of detainees, addressing claims of police brutality and excessive use of force, regulation of electro-muscular-disruption devices, prohibition and prevention of corporal punishment of children and application of criminal law to minors, non-consensual use of medication in psychiatric and research institutions, solitary confinement, separation of juvenile from adults detainees, rights of detainees in Guantanamo Bay, Afghanistan and Iraq, rights of immigrant detainees and prevention of domestic violence.

Elimination of slavery and servitude: provide information on combatting human trafficking and protection of children from sexual exploitation.

Right to privacy: provide information on NSA surveillance.

Freedom of assembly and association: clarify why certain workers are excluded from right to organize in trade unions.

Freedom of movement, marriage, family and protection of minors: clarify whether all cases of individuals serving life sentences without parole for offenses committed as a minor have been reviewed and if U.S. will abolish such sentences; and provide information on children held at Guantanamo Bay, Afghanistan and Iraq.

Right to take part in conduct of public affairs: provide information on voting rights of citizens who have completed their sentences for felony convictions, states’ measures to impose legal or de facto disenfranchisement of voters and efforts to provide residents of District of Columbia right to vote and elect representatives to U.S. Senate and House of Representatives.

Rights of minorities: provide information on protection of indigenous sacred sites and their rights to be consulted and consent to matters affecting their interests.

3. U.S. Replies. On July 5, 2013, the U.S. submitted its 28-page Replies to the List of Issues. It said the U.S. responded “with great pleasure” and was “pleased to participate in this process.” The U.S., it said, “in the spirit of cooperation, provided as much information as possible in response to the questions posed by the Committee.”

The U.S., however, maintained its position that the treaty did not have extraterritoriality, i.e., it did not apply to U.S. conduct outside the U.S. It did provide some additional information, but did not retract any of its previous positions that prompted the Committee’s List of Issues.

4. Civil Society Organizations’ Submissions. Sometime prior to October 2013, 138 reports about the status of U.S. human rights were submitted to the Committee by civil society organizations, including Amnesty International, Human Rights Watch, the American Civil Liberties Union, Physicians for Human Rights and Minnesota-based Advocates for Human Rights.

5. Postponement. The Committee’s review of the U.S was scheduled for October 2013, but was postponed until March 2014, pursuant to a U.S. request due to the then ongoing U.S. government shutdown.[3]

6. U.S. Delegation. On March 7, 2014, the U.S. submitted to the Committee the list of members of the U.S. delegation for the upcoming session. The U.S. Representative was Mary McLeod, Principal Deputy Legal Adviser, Office of the Legal Advisor, Department of State. She was to be aided by 27 Advisers from the Departments of State, Justice, Defense, Homeland Security, Health and Human Services and Interior; the U.S. Mission to the U.N.; the Attorney General of the State of Mississippi; the Mayor’s Office of Salt Lake City, Utah; and a Private Sector Adviser (a private attorney from Los Angeles, California).

Conclusion

On March 13 and 14, 2014, the Committee held hearings in Geneva, Switzerland on the U.S. report and other information, and on March 26, 2014, the Committee adopted its 11-page report (Concluding observations on the fourth report of the United States of America) that was very critical of the U.S. compliance with the ICCPR.[4]

These subjects will be discussed in subsequent posts.

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[1] The nation states creating and joining this treaty chose to not grant the Committee the power to order the states to do anything. Instead, the Committee only may make recommendations as observations.

[2] The report was supplemented the same date by the 85-page U.S. Common Core Document that contained general information (U.S. demographic, economic, social and cultural characteristics) and legal information (U.S. constitutional, political and legal structure; general framework for the protection and promotion of human rights; and information on non-discrimination and equality and effective remedies).

The U.S.’ fourth periodic report and Common Core Document were preceded by the first U.S. report to the Committee on July 29, 1994 (with the Committee’s concluding observations on October 3, 1995) and the U.S.’ combined second and third reports on November 28, 2005 (with the Committee’s concluding observations on September 15 and December 18, 2006).

[3] The civil society organizations submitted to the Committee an additional 41 reports before the March 2014 Committee session.

[4] The Committee’s procedure and report are similar to, but separate from, the Universal Periodic Review (UPR) of U.S. human rights that is conducted by a separate U.N. organization, the Human Rights Council, as discussed in a prior post.

Federal Appellate Court Allows Lawsuit by Guantanamo Detainees

On February 11^th the U.S. Court of Appeals for the District of Columbia Circuit in Washington, D.C. ruled, 2 to 1, that the federal courts had jurisdiction over habeas corpus petitions by three detainees challenging their being subjected to force-feeding at the U.S. Naval Station at Guantanamo Bay, Cuba.

Therefore, the court reversed the district court’s dismissal of the petitions and remanded the cases to that court for further proceedings. (Aamer v. Obama, No. 13-5223 (D.C. Cir. Feb. 11, 2014).)[1]

These claims arose after a major hunger strike at Guantánamo a year ago. Detainees who lost sufficient weight were forced to eat a nutritional supplement.

The Majority Opinion

1. Federal courts’ jurisdiction.

The key issue for the court was whether habeas jurisdiction was forbidden by section 7(1) of the Military Commissions Act of 2006 (“MCA”), which provided as follows:

“No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.”

In reaching its conclusion that this provision did not foreclose jurisdiction, the court in an opinion by Circuit Judge David S. Tatel that was joined by Circuit Judge Thomas B. Griffith started with the U.S. Supreme Court’s decision in Boumediene v. Bush, 553 U.S. 723 (2008).

In Boumediene the Supreme Court held that this statutory section was unconstitutional under Article One, Section 9, Clause 2 of the U.S, Constitution (the Suspension Clause), which states, “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” This was so, held the Supreme Court, because there was no other means for a Guantanamo detainee to attempt to show that he was being held pursuant to an erroneous application or interpretation of relevant law before a court with the power to order his conditional release.

The next step in the analysis was determining that the D.C. Circuit’s own subsequent decisions had decided that Boumediene had invalidated section 7(1) of the MCA for all habeas petitions by Guantanamo detainees. As a result, the determinative issue for the majority in Aamer was whether these petitioners’ claims were the sort that properly could be raised in habeas petitions.

The circuit court then concluded that these claims were properly within the scope of habeas corpus. This was so, the majority stated, because (a) the Supreme Court had suggested that habeas covers claims challenging conditions of confinement while leaving the issue open for that Court’s decision in a future case; (b) the D.C. Circuit’s own binding precedents had established that “one in custody may challenge the conditions of his confinement “ by a habeas petition; and (c) “the weight of the reasoned precedent” in other circuits had reached the same conclusion.

2. Preliminary injunction.

The detainees on appeal also challenged the district court’s denial of their requests for preliminary injunctive relief against their force-feeding, but the D.C. Circuit affirmed that denial because they had not shown likelihood of success on the merits.

This was so even though the appellate court said,”[W]e have no doubt that force-feeding is a painful and invasive process that raises serious ethical concerns.” But “it is not enough for us to say that force-feeding may cause physical pain, invade bodily integrity, or even implicate petitioners’ fundamental individual rights.”

The majority in Aamer recognized that this claim for injunctive relief had to be evaluated under Turner v. Safley, 482 U.S. 78 (1987), which held that “the legality of a prison regulation that ‘impinges on’ an inmate’s constitutional rights” must be upheld if it “’is reasonably related to legitimate penological interests.’”

Here, said the majority, the government had asserted two penological interests: “preserving the lives of those in its custody and maintaining security and discipline in the detention facility.” These were legitimate interests as “the overwhelming majority of courts have concluded . . . that absent exceptional circumstances prison officials may force-feed a starving inmate actually facing the risk of death.”

The Dissent

Senior Judge Stephen F. Williams’ dissenting opinion concluded that the majority should have followed what he deemed to be Congress’s intentions in enacting the MCA and affirmed the dismissal of the cases. Congress, he said, “unmistakably sought to prevent the federal courts from entertaining claims based on detainees’ conditions of confinement.” “Such evident congressional intent would seem to counsel a cautious rather than a bravura reading” of whether such claims fell into the category of habeas corpus lawsuit.

Conclusion

We now wait to find out what the government will do. Ask the entire D.C. Circuit (en banc) to rehear the case? Petition the U.S. Supreme Court to hear the case? Or return to the district court and litigate the claims there?

The majority in this case emphasized that they were only addressing the likelihood of the petitioners’ succeeding on their claims for preliminary injunctive relief, and not the actual merits. But the majority’s analysis and language, in my opinion, suggests that it is highly unlikely that the petitioners would succeed on the merits.

This case is not the only one involving Guantanamo detainees before the D.C. Circuit.

On February 21, 2014, Judge Tatel joined by Circuit Judges Janice Rogers Brown and A. Raymond Randolph heard oral arguments in an appeal from a dismissal of a complaint for money damages by six such detainees against former Defense Secretary Donald Rumsfeld and former U.S. military officials for alleged torture, religious abuse and other mistreatment at Guantanamo. (Allaithi v. Rumsfeld, No. 13-5096 (D.C. Cir.).) The main issues in this case are the following:

whether the claims are barred by the Westfall Act (28 U.S.C. sec. 2679), which makes lawsuits against the U.S. the exclusive remedy for injury “arising or resulting from the negligent or wrongful act or omission of any [government] employee while acting within the scope of his office or employment;” and

whether the defendants are immune from such a suit.

A decision on this case should issue later this year.

[1] The D.C. Circuit’s opinion was reported in the New York Times and Associated Press. Judge Tatel is a University of Chicago Law School classmate and friend of the blogger.

Alien Tort Statute Case Against a Corporation Is Settled with Its Payment of $5.28 Million

On October 5, 2012, Engility Corporation (formerly known as L-3 Services, Inc. and as Titan Corporation and hereafter “Titan” or “Engility”) paid $5.28 million to settle claims brought by 71 Iraqi citizens for the corporation’s alleged participation in their torture and inhuman treatment at the now notorious Abu Ghraib and other prisons in that country.[1]

Proceedings in the Case Against Engility

The case started in June 2008 in the U.S. District Court for the District of Maryland. The complaint, which was twice amended by October 2008, asserted that during 2003 through 2007 the plaintiffs were tortured at these prisons, which were then under the control of the U.S. Armed Forces. At that time L-3 Services, Inc. was a private contractor that provided translators at the prisons who allegedly participated in, or approved of, the torture and inhuman treatment. The alleged acts of torture and cruel, inhuman and degrading treatment included sexual assault, sleep deprivation, electric shocks, threats (including use of unleashed dogs) and denial of medical treatment.

The complaints sought unspecified compensatory and punitive damages and attorneys’ fees under the Alien Tort Statute (“ATS”)[2] and state tort law (assault and battery, intentional infliction of emotional distress and negligent hiring and supervision of employees).

On July 29, 2010, U.S. District Judge Peter J. Messitte denied L-3’s motion to dismiss the complaint. The court’s careful and detailed opinion ruled that (a) aliens who had been detained abroad by the U.S. were not barred from bringing suit in U.S. courts over their detention; (b) private government contractors were not immune from such suits; (c) the political question doctrine did not apply and, therefore, the case was justiciable; (d) private parties, including corporations, were subject to ATS claims for war crimes, torture and cruel, inhuman and degrading treatment; and (e) Iraqi law, not Maryland law, applied to the state-law claims possibly subject to Maryland public policy forbidding such application of foreign law.[3]

Immediately after that decision, Titan filed a notice of appeal to the U.S. Court of Appeals for the Fourth Circuit. A three-judge panel of that court, 2 to 1, in September 2011, reversed the district court while deciding that the plaintiffs’ state law claims were preempted by federal law and that the case should be dismissed. This decision, however, was overturned by the entire Fourth Circuit in May 2012, when it decided, 11 to 3, that it did not have interlocutory jurisdiction to consider the appeal on the merits.

Thereafter the case was remanded to the district court after the Fourth Circuit had denied Engility’s motion to stay the remand pending the filing and resolution of the corporation’s forthcoming petition for review by the U.S. Supreme Court.

After the remand and Engility’s failure to file a petition with the Supreme Court, the parties on October 5, 2012, agreed to the previously mentioned settlement, and on October 10th the plaintiffs dismissed their case and thereby terminated the litigation.

Comments

This case was sponsored by New York City’s Center for Constitutional Rights, which is “dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights.”

The Center’s extensive experience and expertise in litigating cases against corporations under the ATS and other laws are exceedingly important for successful prosecution of these cases. Their backing also provides the resources, persistence and stamina necessary to conduct such cases over a long time period (here, over four years) in various courts.

A similar case is pending in the federal court in Virginia in preparation for trial against another U.S. corporation, CACI International, Inc., which also was involved in interrogation and translation of detainees at Abu Ghraib and other Iraqi prisons. It is in pretrial discovery awaiting trial and is also sponsored by the Center for Constitutional Rights. It was reviewed in a prior post.

Another similar case sponsored by the Center, Saleh v. Titan, was brought by more than 250 Iraqi plaintiffs against CACI International, Inc. and Titan. In September 2009 the U.S. Court of Appeals for the District of Columbia, 2 to 1, affirmed the dismissal of all claims against Titan and, reversing to the district court, also dismissed all claims against CACI. On June 27, 2011, the U.S. Supreme Court denied the plaintiffs petition for certiorari, thereby ending this case.

Overhanging all of these cases is another case awaiting decision in the U.S. Supreme Court–Kiobel v. Royal Dutch Petroleum (Shell)–that raises the issue whether corporations may be sued under the ATS. This case has been discussed in prior posts.

[1] The settlement is described in an SEC filing by Engility’s parent company (Engility Holdings, Inc.’s Quarterly 10-Q Report at 11 (Nov. 13, 2012)); Cushman, Contractor Settles Case in Iraq Prison Abuse, N.Y. Times (Jan. 8, 2013); Yost, Abu Ghraib Settlement: Defense Contractor Engility Holdings Pays $5M To Iraqi Torture Detainees, Huffington Post (Jan. 8, 2013); Assoc. Press, Iraqis Held at Abu Ghraib, Other Sites Receive $5 Million, W.S. J. (Jan. 9, 2013).

[2] Prior posts have discussed the Alien Tort Statute.

[3] District Judge Peter J. Messitte, was a 1966 classmate of mine at the University of Chicago Law School.

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

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).

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

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.

South Africa Invokes Universal Jurisdiction for Alleged Crimes in Zimbabwe

Flag_of_South_Africa — South African Flag

On May 8, 2012, the High Court of South Africa, pursuant to a recent statute, ordered the commencement of an investigation of alleged torture of Zimbabwean political opponents by Zimbabwe authorities in that neighboring country. We will examine that statute’s implementation of the international legal principle of universal jurisdiction, the legal case and the court decision.

The South African Statute

In 2000 the Republic of South Africa ratified the Rome Statute of the International Court and thereby became a State Party to the Statute.

Two years later South Africa enacted the Implementation of the Rome Statute of the International Criminal Court, Art. 27 (“the SA ICC Act“). Its preamble stated:

“The Republic of South Africa is committed to bringing persons who commit such atrocities [the crimes of genocide, crimes against humanity, war crimes and the crime of aggression] to justice, either in a Court of Law in the Republic in terms of its domestic laws where possible, pursuant to its international obligations to do so when the Republic became party to the Rome Statute of the International Criminal Court [the Statute”], or in the event of the National Prosecuting Authority of the Republic declining or being unable to do so, in line with the principle of complementarity as contemplated in the [S]tatute, in the International Criminal Court, created by and functioning in terms of the said [S]tatute; and, carrying out its other obligations in terms of the said [S]tatute.”

Section 4 (1) of the SA ICC Act provides that “any person who commits [such] a crime, is guilty of an offence and is liable on conviction to a fine or imprisonment, including imprisonment for life, or such imprisonment without the option of a fine, or both a fine and such imprisonment.”

Section 4 (3) of the statute goes on to state, “In order to secure the jurisdiction of a South African court for purposes of this Chapter, any person who commits a crime contemplated in subsection (1) outside the territory of the Republic, is deemed to have committed that crime in the territory of the Republic if . . . (c) that person, after commission of the crime, is present in the territory of the Republic . . . .”

The Case

Pursuant to the SA ICC Act, two South African non-governmental human rights organizations petitioned the High Court to review the decision by the Republic’s prosecutors not to initiate an investigation into the alleged arrest, detention and torture in March 2007 of Zimbabwean nationals by Zimbabwean police as part of a widespread and systematic attack on officials and supporters of an opposition political party.

The two petitioners asserted that they filed their request for an investigation “on behalf of and in interest of the victims of torture in Zimbabwe who cannot act in their own name . . . and in the public interest . . . [and] in their own interest pursuant to their respective aimsand objectives as concerned civil society organizations [sic].”

One of the petitioners was the South African Litigation Center, an “initiative of the International Bar Association and the Open Society Initiative for Southern Africa . . . [that] aims to provide support, both technical and financial, to human rights and public interest initiatives undertaken by domestic lawyers within the Southern African region.”

The other petitioner was the Zimbabwe Exiles Forum, whose “object is to assist victims of human rights abuses occurring in Zimbabwe to obtain access to justice and redress that are ordinarily denied them in Zimbabwe. It also provides assistance necessary for the dignity and wellbeing of all exiles from Zimbabwe, in particular victims of torture, political violence and other human rights abuses.”

The Court’s Decision

The High Court in a 98-page judgment set aside the decision of the prosecutors not to investigate these alleged crimes as being “unlawful, inconsistent with the [South African] Constitution and therefore invalid.” The Court, therefore, ordered the prosecutors to initiate such an investigation.

Important for the Court was the fact that the alleged Zimbabwean perpetrators “from time to time visit South Africa and that, if and when they do so, South Africa was under a duty at International Law and under the ICC Act to apprehend and prosecute them if possible.”

In reaching its conclusion, the Court rejected the respondents’ arguments that the petitioners did not have standing to request such an investigation. According to the Court, the petitioners’ “rights to have the decision made lawfully and in accordance with constitutional and statutory obligations has been infringed, the victims of the torture who had been denied the opportunity to see justice done, and the general South African public who deserve to be served by a public administration that abides by its national and international obligations. The public clearly has an interest in a challenge to the manner in which public officials discharge their duties under the relevant legislation.”

Conclusion

A commentator said this ruling “could cement South Africa’s commitment to protecting human rights and broaden the application of universal jurisdiction.” Unfortunately, in his view, the South African government is preparing an appeal of the decision to South Africa’s Supreme Court of Appeal.

Not surprisingly the Zimbabwe government has criticized and ridiculed the decision.

A prior post surveyed the international legal concept of universal jurisdiction. Other posts examined Spain’s use of universal jurisdiction over cases involving Salvadoran and U.S. nationals.

Federal Appellate Court Grants Immunity to Author of Legal Memoranda Regarding U.S. Detention and Interrogation of Suspects in the “War on Terrorism”

9thcircuit — U.S. Court of Appeals, 9th Circuit

On May 2, 2012, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit in San Francisco unanimously held that John Yoo was immune from civil liability to Jose Padilla (and his mother) for Yoo’s authoring legal memoranda in 2001-2003 for the U.S. Department of Justice regarding the detention and interrogation of U.S. citizens who had been declared to be “enemy combatants.”

This civil case arises out of Padilla’s arrest and detention by U.S. military officials. In May 2002 Padilla was arrested at O’Hare International Airport near Chicago on suspicion of plotting a radiological bomb attack in the U.S. and was detained under a federal material witness arrest warrant until June 9, 2002, when President George W. Bush declared Padilla to be an “enemy combatant.” For the next 3 and a half years Padilla was detained in a military brig where he repeatedly was subjected to sleep deprivation, shakling, stress positions, solitary confinement and administration of psychotropic drugs. In January 2006 he was transferred to a federal civilian detention facility in Miami, Florida, where a federal jury in August 2007 found him guilty of conspiring to kill people and to support overseas terrorism and a federal judge in January 2008 sentenced him to 17.3 years imprisonment. This conviction was affirmed in September 2011 by the U.S. Court of Appeals for the Fourth Circuit, which vacated the 17.3 sentence as too lenient. The case was remanded to the district court where the case awaits the new sentencing.

This civil case was commenced by Padilla and his mother in January 2008. The complaint alleged that Yoo, as an attorney in the U.S. Department of Justice’s Office of Legal Counsel, had authored various legal memoranda that provided purported legal justification for Padilla’s detention and interrogation, all in violation of the First, Fourth, Fifth, Sixth and Eighth Amendments to the U.S. Constitution, Article III and the Habeas Suspension and Treason Clauses of the Constitution and a federal statute. The complaint sought nominal damages of one dollar and a declaration that his treatment violated these constitutional and statutory provisions.

After the district court denied Yoo’s motion to dismiss the complaint, he appealed to the Ninth Circuit, which reversed the trial court on the previously mentioned immunity ground.

The Ninth Circuit correctly concluded that this appeal was governed by the U.S. Supreme Court’s 2011 decision, Ashcroft v. al-Kidd, 131 S. Ct. 2974, which held that “[q]ualifed immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” The alleged right must be “sufficiently clear that every reasonable official would have understood that what he is doing violates that right.”

With this major premise in hand, the Ninth Circuit then concluded that in 2001-2003, when Yoo was at the Department of Justice, it was not clearly established that a U.S. citizen held in military detention as an enemy combatant was entitled to the same constitutional and statutory rights as convicted prisoners and that Padilla’s treatment amounted to torture.

John Yoo himself in an op-ed article in the Wall Street Journal naturally applauded the decision. His resistance to this lawsuit, he said, was “not just to defend the tough decisions that had to be made after 9/11. We fought to protect the nation’s ability to fight and win the war against al Qaeda—and other enemies—in the future.”

Yoo also launched bitter attacks on human rights groups that support lawsuits like the one against him and others who hold opposite opinions on the interrogation tactics. Such groups, he said, seek to “advance their agenda by legally harassing officials, agents and soldiers, and so raise the costs of public service to anyone who does not hew to their extreme, unreasonable views.” Democratic Representative Nancy Pelosi was cited by Yoo as being misleading on the substance of a briefing by the CIA on its interrogation tactics. President Obama, according to Yoo, lacked “backbone” by declaring “the CIA’s interrogation methods to be ‘torture’ before the courts or his own Justice Department had delivered a considered opinion . . . [by launching] an independent counsel to hound CIA agents, even though career prosecutors had already looked into claims of abuse and found no charges appropriate . . . [by trying] to close Guantanamo Bay without any real alternative . . . [by stalling] special military commissions established by President Bush and ratified by Congress, and [by relying] on drones to kill rather than capture al Qaeda leaders for their intelligence.”

The Wall Street Journal, a long-time supporter of Mr. Yoo and the other authors of the legal memoranda in question, also welcomed the Ninth Circuit’s decision. The Journal declared in an editorial that the decision “vindicates the principle that government officials are immune from private litigation for their national-security decisions. The law has long held that executive branch officials can’t be sued for other than criminal acts so they can carry out their duties in the best interests of the country without threat of personal liability.” More vindictively, the Journal said the decision was a “watershed for repudiating sham tort claims whose goal is to intimidate—and perhaps bankrupt—anyone who dares to treat terrorists differently from shoplifters. In a better world, Padilla’s pals at the ACLU and the . . . [Yale Law School] Human Rights Clinic would be hit with sanctions and a bill for Mr. Yoo’s costs.”

The New York Times, on the other hand, criticized this decision. Its editorial acknowledged that the Ninth Circuit followed, as it had to, a U.S. Supreme Court ruling in 2011 that the so-called qualified immunity existed unless “existing precedent” put the claimed right “beyond debate.” This Supreme Court decision, however, had changed the legal standard for such immunity; previously it had required that a reasonable person would have known about the alleged right he allegedly had violated.

According to the New York Times, the Ninth Circuit’s decision this week showed why the new Supreme Court standard was “unworkable.” The newspaper said “the Bush administration manufactured both ‘debates’ — about torture and enemy combatants. . . . By using the ‘enemy combatant’ category, the Bush administration stirred debate that had not existed about whether rights of an American citizen in custody depend on how he is classified. By coming up with offensive rationalizations for torturing detainees, it dishonestly stirred debate about torture’s definition when what it engaged in plainly included torture.” The Ninth Circuit decision can be used, the Times said, by future administrations “to pull the same stunt as cover for some other outrage.”

In the meantime, as reported in a prior post, Yoo and five other authors of the legal memoranda regarding detention and interrogation of individuals in the so-called war on terrorism are the suspects in a criminal case in Spain under the principle of universal jurisdiction that the trial court had temporarily dismissed or stayed so that the issues could be pursued in the U.S. On March 23, 2012, an appeals court in Spain affirmed the trial court’s decision. However, three of the 17 members of this appellate court dissented on the grounds that the conduct authorized by these memoranda were crimes under international and Spanish law and that the requirements for a Spanish court to defer to U.S. authorities under Spain’s concept of “subsidiarity” had not been satisfied.

Legal Entities Not Liable under the Torture Victims Protection Act

U.S.SupremeCt — U.S. Supreme Court Building

On April 18, 2012, the U.S. Supreme Court unanimously decided that legal entities, including corporations, are not liable under the Torture Victims Protection Act (TVPA).

The TVPA provides a civil cause of action for money damages by an “individual” who is a victim of torture or by his or her representative for extrajudicial killing against an “individual” who committed the wrong under authority or color of law of any foreign nation. The opinion for the Supreme Court by Justice Sotomayor held that the word “individual” in the statute encompasses only natural persons and thus does not impose liability against organizations. This conclusion was supported, the opinion stated, by the ordinary meaning of the word “individual” and the absence of any indication in the statute itself that Congress intended the word to have a different meaning. In addition, the counterarguments, including the legislative history of the TVPA, were not persuasive.

Justice Scalia joined the Sotomayor opinion, except for the portion that found support for its conclusion in the legislative history of the TVPA. Justice Breyer also joined the Sotomayor opinion, but filed a concurring opinion that said he did not believe the ordinary meaning of the word “individual” alone was sufficient to justify the Court’s conclusion, but that the legislative history supported the Court’s conclusion.

The unanimity of the Court and the issuance of the opinion only 49 days after the argument confirm my earlier opinion that this was an easy case for non-liability of organizations.

Congress, of course, at any time could amend the TVPA to expand or restrict the applicability of the statute.

Netherlands Court Awards Monetary Damages to Palestinian for Libyan Torture

This March a court in the Netherlands awarded 1 million euros to a Palestinian plaintiff against 12 Libyan officials for torture and inhumane treatment over eight years in a Libyan prison.

The plaintiff, Dr. Ashraf al-Hajuji, who now lives in the Netherlands, along with five Bulgarian nurses had been charged in Libya in 2000 with deliberately infecting over 400 children with HIV-AIDS. In 2004 they were convicted and sentenced to death by a firing squad. A year later the convictions were overturned and a new trial was ordered after Bulgaria agreed to establish a fund for the families of the infected children. In December 2006, however, Dr. Hajuji and the nurses were again convicted and sentenced to death, but in July 2007 their sentences were commuted to life imprisonment after the children’s relatives agreed to accept compensation of $1 million per child. In 2007 the doctor and nurses were pardoned and released after French President Sarkozy negotiated with Col. Muammar Gaddafi . Gaddafi admitted they had suffered horrible torture in Libyan prisons.

This may be the first time another legal system has granted a civil monetary damages award to a foreigner due to violation of international human rights norms by other foreigners in a foreign country similar to the awards made by U.S. courts in civil lawsuits under the Alien Tort Statute.

In the meantime, Bulgarian prosecutors are still investigating what happened in Libya for a possible criminal prosecution of those responsible for the torture.