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US Supreme Court ruling on "sovereign immunity" key to war crimes litigation

[TamilNet, Sunday, 07 March 2010, 01:55 GMT]
The central issue discussed in the March 4th morning arguments heard by the panel of nine United States Supreme Court judges in the case Samantar v. Yousuf was not if the the former Somali defense minister Samantar was responsible for torture, war-crimes, and rape in his native land but whether Samantar has immunity under the Foreign State Immunity Act (FSIA) preventing alleged victims from bringing him to court in the United States on tort claims. The courts ruling which is expected in June, will set an important legal precedent, and will likely determine if alleged war criminals can use US as a safe-haven, legal sources in Washington D.C. said.

Samantar's lawyer, Shay Dvoretzky, argued that the matter carries great policy implications for the United States and its relations with other countries, and should stand for the principle that "one nation's courts cannot sit in judgment of another nation's acts."

Patricia Millet, Counsel for Yousuf
Patricia Millet, Counsel for Yousuf
Shay Dvoretzsky, Counsel for Samantar
Shay Dvoretzsky, Counsel for Samantar
Edwin S. Kneedler, Deputy Solicitor General
Edwin S. Kneedler, Deputy Solicitor General
Smantar, former Somali minister
Smantar, former Somali minister
But Congressional sponsors of the Torture Victims Protection Act (TVPA) through an amicus brief filed with the Supreme Court, and victim Yousuf's lawyer, Patricia Millett, argued that the TVPA authorizes lawsuits, and was passed specifically to ensure that those "who avail themselves of the protections and privileges of residency in the United States also bear responsibility for their actions, especially actions as significant as torture."

Counsels for both the appellant (Samantar) and appellee (Yousuf) came under close questioning by the Judges on the issue of how to differentiate the State, as expressed in FSIA, and an individual whose immunity is not expressly stated in the statute.

Samantar's counsel said that the Torture Victims Protection Act (TVPA), creates a cause of action, but it should be interpreted consistent with the "existing immunity principles" [defined by FSIA]. Judge Ginsburg countered that if this is so, the Alien Tort Statute (ATS) falls into the same category [as the TVPA] and therefore, the [important] "Filartiga case -- if the -- if there had been a quest -- request to dismiss because Filartiga was a former officer, and the same thing in Karadzic, none of those could have gone forward?"

Dvoretzky responded that immunity issue was not raised in those two cases.

The [U.S.] government's position is that the FSIA does not offer individuals immunity, but that decisions about whether the lawsuits against them may move forward should be made by the State Department, said Deputy Solicitor General Edwin S. Kneedler in his argument. Justice Scalia expressed his reservations on leaving an decision on an individual to the State Department while implying that he can accept leaving the decision to prosecute a state to the State Department.

In the brief submitted by Senator Arlen Specter et.al. as amici curiae in support of respondents (Yousuf), the amici said, "[t]oward the end of the Barre regime, in the late 1980s and early 1990s, the Somali human rights abuses sanctioned by Petitioner Samantar came to the attention of the United States Senate Committee on Foreign Relations and the United States House of Representatives Committee on Foreign Affairs, both of which received several reports from the United States Department of State chronicling human rights abuses, torture, and extrajudicial killing in Somalia under the Barre regime.

US Supreme Court Judges
US Supreme Court Judges
"In part, these reports led Congress to pass the TVPA," the brief said. Specter also pointed to a US Senate report that said, “Despite universal condemnation [of torture and extrajudicial killing], many of the world’s governments still engage in or tolerate torture of their citizens, and state authorities have killed hundreds of thousands of people in recent years.”

The ruling will consider legal issues related to immunity under FSIA including: differentiating between "State" and "individual," scope of authority related to crimes committed, whether the immunity, if present while in office, continues after the alleged war-criminal leaves office, whether the immunity, if posited by the Statute, applies to jus cogens norms violations, and others, legal sources said.

A spokesperson for the US-based pressure group, Tamils Against Genocide (TAG), said, "legislative history of the TVPA, as detailed in Specter's brief, establishes that Congress carefully considered foreign policy implications of allowing prosecutions of war-criminals in the US. We expect that the Supreme Court will set clear guide lines, so that State-sponsored crimes can be litigated in the US court of law to bring justice to helpless victims, especially when the alleged criminals are US Citizens or Greencard holders. We hope that the Supreme Court will issue a comprehensive opinion covering key legal issues related to FSIA, TVPA, and ATS, and not find openings to leave important questions unanswered."


Related Articles:
07.02.10   Sri Lanka, acid test for International Law

External Links:
OJ: Filartiga v. Pena-Irala 630 F.2d. 876
CJA: Links to court filings including amicus briefs
WP: Somali ex-minister fights war-crimes law suit
DD: Amici Curiae Brief for Samantar v. Yousuf


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