Tuesday, February 2, 2010

In the News: Can you live in the U.S. but claim its laws don’t apply to you?

The Supreme Court is on the verge of a decision that could have a tremendous impact on human rights law in the U.S. On March 3, 2010, the Court will hear oral arguments in the case of a former Somali government official who is believed to have overseen grave human rights violations in Somalia. The question facing the Court is whether former officials of foreign governments who commit human rights violations abroad can use the U.S. as a “safe haven” to avoid being held accountable for their crimes? (Can you guess which side we’re on in this one?)

“How could the U.S. be a ‘safe haven’ for such people?” you ask? Under FSIA (the Foreign Sovereign Immunities Act), a foreign state, its agencies and instrumentalities acting under that government’s authority are immune from the jurisdiction of U.S. courts - unless certain exceptions are met. The District Court dismissed the case, finding FSIA applies and Samantar is immune from liability. The Appellate Court reversed, finding FSIA does not grant immunity to individual government officials and, even if it did, FSIA does not apply to those who are not still government officials when the suit against them is filed. So to whom does FSIA’s immunity apply? And for how long can they hide under its coverage? That’s now for the Supreme Court to decide…

In the meantime, we provide some background for our readers:

In the 1980s, under the direction of General Siad Barre, the Somali Armed Forces tortured, imprisoned and summarily executed civilians accused of supporting the opposition party, the Somali National Movement.

Mohamed Ali Samantar served as Vice President, Minister of Defense, and Prime Minister under General Barre. Under Samantar’s command, the Somali government waged brutal attacks against civilians. Samantar personally oversaw the aerial and ground assault on Somalia’s second largest city in which over 5,000 residents were killed. After Barre and his supporters were ousted from Somalia in 1991, Samantar fled to the United States. He currently lives in Fairfax, Virginia.

Somalis living in the United States and in Somalia brought suit against Samantar for abuses suffered by them and their families during Samantar’s tenure. On November 10, 2004, several Somalis, ably represented by the Center for Justice and Accountability, filed suit under the Torture Victims Protection Act (“TVPA”) and the Alien Tort Statute (“ATS”) in the Eastern District of Virginia. The suit alleges that Samantar had command responsibility for: extrajudicial killing; arbitrary detention; torture and cruel, inhuman or degrading treatment; crimes against humanity and war crimes carried out by his subordinates. In response, Samantar claimed immunity from suit under the FSIA. The District Court agreed and dismissed the case.

On appeal, the Fourth Circuit reversed the District Court’s opinion, concluding that Congress did not intend the FSIA to apply to individual foreign government agents like Samantar, and that individuals are not considered “agencies or instrumentalities of the state.” The Fourth Circuit held that even if an individual foreign official could be an “agency or instrumentality” under the FSIA, immunity would be available only if the individual were still an “agency or instrumentality” at the time of the suit, meaning that former government officials could not use immunity to avoid accountability.

The Supreme Court of the United States granted certiorari in this case on September 30, 2009, and will address (1) whether a foreign state’s immunity from suit under the FSIA extends to an individual; and (2) whether an individual who is no longer an official of a foreign state retains immunity for acts committed while s/he was acting in that capacity.

This case has attracted widespread attention with everyone from the U.S. Congress to foreign governments weighing in. Over the course of the case, Senators Arlen Spector and Russ Feingold, and Congresswoman Sheila Jackson Lee signed an amicus brief in support of the plaintiffs. The Kingdom of Saudi Arabia has also voiced an opinion, submitting an amicus brief in support of Samantar, arguing foreign sovereign immunity should apply. Several human rights organizations, including Human Rights USA, signed an amicus brief at the appellate level and again before the Supreme Court arguing that former government officials are not immune from suit; foreign officials who have committed torture and other human rights abuses should not be able to use U.S. soil and U.S. law as a safe haven.

If the Supreme Court reverses the Fourth Circuit’s decision and sides with Samantar, it would fundamentally undermine the principle that torturers should not enjoy safe haven in the United States. Congress passed the TVPA to ensure that courts could hear suits by survivors of torture, including those against former government officials. The TVPA states that foreign government officials who commit torture must be held accountable when the alleged torturer has chosen to live in the United States and an effective judicial system is unavailable in the country where the crimes were committed. Allowing former officials who have committed torture to claim immunity would strip many torture survivors of the access to justice that Congress specifically constructed in enacting the TVPA, including American students brutalized while overseas, relief workers targeted while on vital aid missions, and U.S. government personnel – civilian or military – tortured while on foreign assignments.

In contrast, affirming the Fourth Circuit opinion (finding FSIA does not apply to Samantar) would confirm that victims of torture have the right to face their abusers in court and seek redress for the atrocities that they have suffered. This case would establish once and for all that torturers cannot seek impunity in the United States – that they are not above the law and will be held responsible for their acts. To guarantee that survivors of torture continue to have access to justice in U.S. courts, the Supreme Court should hold that FSIA immunity does not extend to former government officials.

For coverage in the New York Times, click here.

Prepared with the assistance of International Justice Project Interns Kacey Mordecai and Lindsey Ingraham.

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