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.
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:
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.)
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.
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.
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.
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.
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.
[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.
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.
