The Supreme Court heard arguments yesterday regarding whether former government officials who commit human rights violations should enjoy immunity under the Foreign Sovereign Immunities Act (FSIA).
The petitioner in the case, Mohamed Ali Samantar, served as Vice President, Minister of Defense, and Prime Minister under General Siad Barre in Somalia during a period of intense conflict in the region. Under the command of Samantar, who is now living just outside of Washington, DC, the Somali Armed Forces committed numerous atrocities against Somali citizens. (For more background on Mr. Samantar and the cases leading to the Supreme Court, see our previous post.)
Yesterday’s arguments before the Supreme Court addressed (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.
In non-legal terms: We don’t allow people to sue foreign governments because that would be a political mess... but what about individual government officials? Who can be held accountable for wrongs they committed and who can use a government position as a reason not to participate in a lawsuit?
Samantar’s lawyers argued that individuals who acted in the official capacity of a foreign government should be protected by FSIA (and thus not be subject to a lawsuit) because “such suits are the equivalent of a suit against the state directly.” Samantar’s attorney argued that while the Torture Victims Protection Act (TVPA) allows torture survivors and their families to bring claims against those who violated their human rights, that statute must be interpreted with existing immunity principles. In other words, FSIA should trump the TVPA. Samantar’s attorneys argue that if there is no explicit exception from Congress or waiver of immunity by the foreign state where a potential defendant is or was an official, no one should be able to hold that person accountable for actions taken in his or her official capacity. Samantar’s lawyers argued that the legislative history shows that the FSIA was intended to codify the common law and international law understandings of foreign governmental immunity and there is no mention of individuals because there was no dispute that the law would apply to individuals.
Attorneys for the Somalis who suffered under the Barre regime argued that the silence of the law shows Congress’ intent not to protect individuals from suit. The attorneys also noted that the TVPA was passed after FSIA and specifically gives torture victims and their families access to U.S. courts. The TVPA, they argued, imposed personal liability on individuals, including those who were acting with actual or apparent authority of the foreign state. Furthermore, if every act of a governmental official amounted to an act of the state, the cause of action under the TVPA would not exist. So the question becomes: can you torture someone and then avoid being held accountable by claiming you were acting on behalf of a foreign government when you did so?
The Deputy Solicitor General argued the Court should allow some lawsuits against individuals, while allowing the U.S. State Department to weigh in on immunity for such individuals.
Nina Totenberg gives a sneak peak at the arguments prior to arguments in Court today.
SCOTUSBlog has short podcasts of attorneys from both sides explaining their arguments.
SCOTUSBlog analysis of the arguments.
Transcript of yesterday’s argument.
Prepared with assistance from IJP Intern Christiaan Segura.