Friday, October 16, 2009

Are Torturers Above the Law? Or Can They Be Sued?

By Brendon Fleming

[Cross-posted from Our Rights, Our Future, the blog of the National Campaign to Restore Civil Rights]

TortureNearly 20 years ago, Ali Samantar left his native Somalia, then a country tumbling deeper and deeper into chaos. After years as a general in the Somali army, as defense minister, and finally as prime minister, Samantar fled Somalia and eventually settled in Virginia. His past, however, eventually found him in the United States.

In 2004, a group of Somalis sued Samantar in federal court in Virginia, alleging that Somali agents under Samantar’s control had tortured them and committed other human rights abuses against them in the 1980s and early 1990s, before Samantar fled the country. Those suing wanted to see Samantar held responsible for the torture and abuses, asking he pay them monetary damages.

After five years winding its way through the federal courts, the U.S. Supreme Court will now hear the case. At the core of Samantar v. Yousuf, is the issue whether or not Samantar is immune, as a former official of a foreign government, from being sued in the United States for alleged human rights abuses that occurred on his watch in Somalia in the 1980s. The suit claims Samantar and those in his command were responsible for killings, rapes, and torture—including waterboarding.

The plaintiffs, five Somali survivors of torture, sued Samantar under the Alien Tort Statute and the Torture Victim Protection Act. The Alien Tort Statute (ATS), a federal law that has been on the books since 1789, allows non-citizens to sue their abusers in federal court for human rights abuses that violate international law. The Torture Victim Protection Act of 1991 (TVPA) allows victims of torture carried out by agents of a non-U.S. government to sue their torturers for monetary damages in federal court. The ATS and the TVPA are doors into U.S. courts for victims of torture and human rights abuses suffered abroad, at the hands of despots and tyrants. The laws allow a day in court for victims who might otherwise never have one in the United States, in their home countries, or anywhere else.

But the Supreme Court could close those doors, at least to some plaintiffs, with this case, depending on its reading of the Foreign Sovereign Immunities Act (FSIA). The FSIA is a law that governs when and how foreign countries may be sued in American courts. FSIA makes foreign countries immune from certain lawsuits. In this case, the Court will decide whether the ATS or TVPA allow lawsuits against foreign officials—individuals with state power, rather than merely a state itself—for alleged human rights abuses committed in their official capacity. Put another way, the Court will decide whether FSIA immunity extends to individuals acting as officials for foreign governments, including former officials, or whether it only immunizes foreign states themselves and their government agencies.

The Supreme Court must decide which is right: allowing the case against Samantar to proceed under the ATS and TVPA, thereby giving the victims of alleged torture their day in court, or using a federal law that was designed to facilitate diplomacy by protecting foreign governments instead to protect an alleged torturer and perpetrator of vast human rights abuses.

The ATS and the TVPA are important because they are an acknowledgment by the United States of the existence and enforceability of international human rights law. They recognize that some abuses are so flagrant that they violate the norms and rules accepted by the international community as the law of nations—international law. Allowing a suit such as this one, against Samantar, would be a significant step forward for the international rule of law—a resounding statement that individuals who torture for their governments or take official action that violates international human rights norms cannot hide behind their government’s immunity.

If the Supreme Court allows the case to proceed, a lower federal court could then determine that Samantar is liable for the alleged abuses, an outcome that the plaintiffs and many Somalis would no doubt applaud. But a court could instead, based on testimony and evidence, find him not liable, which would likely disappoint many who already believe Samantar is responsible for the abuses. As important as the outcome of the case is, it is equally important to allow the court to hear the case through to completion, without cloaking it with official immunity and stopping it in its tracks.

Somalia has been without a stable functioning government since 1991, when its government collapsed and Samantar fled. Regardless, U.S. courts can and should still provide a day in court for these Somali survivors.

(Photo by Javier Kohen.)

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