Go On! AI annual meeting in San Francisco

(Go On! is an occasional item on symposia and other events of interest)

Amnesty International USA will host its Annual General Meeting this weekend, March 18-20, in San Francisco. Registration details here; full agenda here. (photo at right is from last year's meeting)
Amnesty is convening a special session for human rights lawyers on Friday, March 18 at the Fairmont Hotel, 950 Mason Street, from 9 a.m.-4 p.m. The event is free, but registration is recommened. Topics will include:

• the Foreign Sovereign Immunities Act,


• the Torture Victims Protection Act,


• the Alien Tort Statute,


• corporate accountability for complicity in human rights violations, and


• applying actions from international human rights mechanisms in U.S. courts.

Here is the full schedule:

9:00 – 9:30 Welcome and Opening Remarks: Jessica Carvalho Morris (left), Vice-Chair AIUSA Board of Directors and Director of the International and Foreign Graduate Programs, University of Miami School of Law
9:30 – 11:00 Civil Actions to Hold Human Rights Violators Accountable: Successes, Obstacles, and Future Challenges

• William S. Dodge, Professor of Law at the University of California’s Hastings College of the Law

• IntLawGrrl Chimène Keitner, Associate Professor of Law at the University of California’s Hastings College of the Law (right)

• Andrea Evans, Litigation Director, Center for Justice and Accountability (left)

11:00 – 12:30 No Safe Haven: Criminal and Administrative Enforcement

• IntLawGrrl Pamela Merchant, Executive Director, Center for Justice and Accountability (left, at podium)

• IntLawGrrl Beth Van Schaack, Associate Professor of Law, Santa Clara University School of Law (below left)

• Theresa Harris, AIUSA Board of Directors and Executive Director of the World Organization for Human Rights USA (right)

12:30 – 2:00 Lunch

2:00 – 3:30 Corporate Accountability: Emerging Standards

• Paul Hoffman, Schonbrun, Seplow, Seplow, Harris, Hoffman & Harrison, LLP

• IntLawGrrl Natalie Bridgeman Fields, Founder and Executive Director of Accountability Counsel (right)

• Morton Winston, Founding Chair of the AIUSA Business & Human Rights Group

3:30 – 4:00 Discussion and Closing Remarks

Hope to see you there!

Samantar accountability advances

(Delighted to welcome back IntLawGrrls alumna Pamela Merchant, who contributes this guest post)

I am pleased to update you on a recent development in Yousuf v. Samantar, a human rights case that five survivors of torture brought in 2004 against General Mohamed Ali Samantar, who was Minister of Defense in Somalia (left) during the brutal Siad Barre regime.

On February 15th, the U.S. District Judge Leonie M. Brinkema ruled that this former Somali offical is not immune from suit.

This ruling in the Eastern District of Virginia clears a legal hurdle that we have been contesting for years, including at the U.S. Supreme Court.

Last June, the Supreme Court held that General Samantar was not entitled to immunity under the Federal Sovereign Immunities Act, but left open the question of whether he is entitled immunity under the common law. (Prior IntLawGrrls posts available here.) Last month's district court ruling settled that question by deferring to a statement from the State Department which unequivocally declared that General Samantar is not entitled to any immunity from suit.

The intervention in the Samantar case by the State Department is particularly significant because the United States only occasionally intervenes in litigation, and very rarely intervenes to claim that a defendant is not entitled to immunity.

The ruling ensures that our march towards accountability will continue. To learn more about the case, filed by the San Francisco-based Center for Justice & Accountability, for which I serve as Executive Director, and pro bono co-counsel Akin Gump Strauss Hauer & Feld LLP, please click here.

Sovereign immunity in Canada

(Thanks much to IntLawGrrls for inviting me to contribute this guest post on several important developments in human rights litigation in Canada)

One of the things that always strikes me in working with torture survivors and victims’ families is how consistently people say they want to help prevent others from experiencing the same trauma. They want something hopeful to result from such dramatic pain and loss, and often see the pursuit of justice as one of the means to achieve this.
That was certainly the message from Canadian-Iranian Stephan Kazemi as he digested the outcome of a key decision in his lawsuit against Iran for the torture and death of his mother, Zahra Kazemi (left). He could see that while the decision is a victory in terms of his own ability to proceed, it closes the door to most other cases in Canada for torture suffered overseas and undermines his broader goal.

Zahra Kazemi was a photojournalist from Montreal, Canada,, whose work sought to shed light on political and human rights issues, often highlighting the strength of women in situations of poverty and oppression. In 2003, she traveled to Iran during a time of demonstrations against the government, and with a press card took photographs of family members outside the notorious Evin prison who were seeking information about those thought to have been falsely imprisoned.

As a result, Zahra was herself detained, brutally raped and beaten. Her son in Canada, an only child in his twenties at the time, sought her return for treatment in Canada. This was denied, and she died of her injuries. No one was ever held accountable in Iran for Zahra’s torture and death. After other possible avenues to redress had been exhausted, a lawsuit was filed against Iran in Quebec Superior Court, on behalf of Zahra’s estate and of her son Stephan. The first hurdle in the case was the need to address the claims of the Government of Iran and the three named individual officials that they were immune from the lawsuit because of Canada’s State Immunity Act (SIA).

Passed in 1982, the SIA was intended to provide assurance to other governments that they would not be sued in Canada as they carried out their official or “sovereign” duties. A strong argument can be made that acts that are in clear contravention of international law – such as torture – cannot be considered “sovereign”. The SIA uses a restrictive approach and contains two exceptions to immunity – for commercial activities and for injuries suffered inside Canada. Unfortunately there is currently no exception in the legislation for torture or other serious violations of international human rights. The intervention of the Canadian Centre for International Justice, for which I serve as Executive Director, as a friend of the court in the Kazemi case was an attempt to remedy this.

The Quebec Superior Court took almost a year to issue its judgment on the state immunity issue. When it finally came in late January, it was a very mixed result. The court permitted Stephan's individual claims to proceed on the basis of the existing exception written into the SIA that eliminates immunity for injuries suffered inside Canada. It found that the nervous shock Stephan suffered as a result the mistreatment of his mother could fall under this exception. His individual part of the case will proceed and it will certainly be significant – the first trial of its kind in Canada.

However, the claims by the Estate of Zahra Kazemi were dismissed on the ground that the abuses Zahra suffered were only in Iran; she never suffered an injury in Canada. The court upheld immunity in those circumstances, rejecting arguments that immunity should not be permitted for torture and other serious human rights violations. The paradoxical result of the court's approach is that relatives in Canada of persons tortured or killed abroad may have a remedy while the persons who were actually tortured often will not.

Yet while the judgment is disappointing, there is still hope:

► Aspects of the case could be subject to appeal, and decisions about that will be made in the coming weeks.

► The judgment is also a clear invitation to Canadian Members of Parliament to act by passing a bill that is currently before them, intended to clarify that there should never be immunity for torture, war crimes, genocide or crimes against humanity. Bill C-483, a private member’s bill, was re-introduced in Parliament on March 3, 2010 by Liberal MP Irwin Cotler (right) with the support of MPs from the other three parties that hold seats: the Conservatives, New Democratic Party and Bloc Quebecois. The bill would deny immunity to countries and officials alleged to be responsible for torture, genocide, war crimes and crimes against humanity by creating a new exception to the general rule in the SIA that foreign governments cannot be sued in Canada. The exception would remove the key barrier to lawsuits involving allegations of these violations of human rights and humanitarian law, and create an important precedent as the civil courts of other countries also grapple with the issue of state immunity.

Further developments in the Kazemi case will be important to watch, as will progress on the parallel efforts at law reform through the legislature. It is my very deep hope that Stephan Kazemi will have the opportunity to offer this final tribute to the tremendous courage his mother demonstrated through her work and art.

Nazi-looted art & California

(Delighted to welcome back IntLawGrrl alumna Jennifer Kreder, who contributes this On Art! guest post)

Latest developments in California respecting claims for recovery of artworks stolen by the Nazis in World War II: legislation that would ease the ligitation of looted-art-recovery claims awaits decision by California governor, and an en banc panel of the U.S. Court of Appeals for the Ninth Circuit has issued an interlocutory ruling in favor of one such claim.

Pending legislation

Some history is in order to understand the significance of A.B. 2765, the bill that California legislators approved at the end of last month.

► In 2009, in von Saher v. Norton Simon Museum of Art at Pasadena, a 3-member panel of the U.S. Court of Appeals for the Ninth Circuit struck down § 354.3 of the California Code of Civil Procedure. That law had attempted to extend, to December 31, 2010, the statute of limitations applicable to claims seeking restitution of Nazi-looted art against museums and galleries. But the Ninth Circuit held that the state statute was preempted under the foreign affairs doctrine.

The von Saher case involves Adam and Eve (right), a circa-1530 diptych painted by Lucas Cranach the Elder, which had undeniably been stolen from one of the most prominent art dealers in Europe, Jacques Goudstikker, whose Amsterdam gallery was aryanized after he fled for his life (and who died in an accident on the fleeing ship). The Dutch government seems to have mistakenly returned the paintings to the wrong family after the war, and the paintings were later sold by an art dealer to the museum. Under the American common law of property, an axiomatic rule is that title to stolen art does not pass except in limited circumstances involving bailments – although limitations periods could bar a claim.

A petition for certiorari is set to be considered by the U.S. Supreme Court at its conference on September 27.

► In 2007, another 3-member panel of the Ninth Circuit, in Orkin v. Taylor, had ruled both that federal law created no private right of action for Holocaust survivors and heirs to seek restitution of their art, and that the California conversion/replevin cause of action accrues when the “plaintiff discovers or reasonably could have discovered her claim to and the whereabouts of her property.” (credit for photo of Vincent Van Gogh painting in dispute in Orkin)

A number of courts across the country recently have been interpreting constructive notice standards in ways that do not account for the inability of Holocaust survivors and their heirs to truly discover until now their ability to reclaim artwork stolen or sold under duress or in a forced sale.

The Supreme Court declined the petition for certiorari filed in this case.

The California legislation that is awaiting signature or veto by Governor Arnold Schwarzenegger would:

► Require actual notice; and

► Double the length of time allowed between actual discovery and commencement of the cause of action, from three to six years.

The law would apply to all new and pending causes of action commenced on or before December 31, 2017. It also would include actions that were dismissed based on the expiration of the statute of limitations in effect prior to the date of enactment. Although the new standard would apply only to art in museums and galleries in California, it could pave the way for more state-level reform.

New ruling

While this statewide legislation was pending, an en banc panel of the San Francisco-based federal appellate court issued a ruling that permitted another recovery suit to go forward.

In Cassirer v. Kingdom of Spain, decided in mid-August, the en banc Ninth Circuit panel held 9-2 that Spain and its instrumentality, the Madrid-based Thyssen-Bornemisza Collection Foundation, are subject to U.S. jurisdiction under the expropriation exception of the Foreign Sovereign Immunities Act – even though it was the Nazis, not Spain, that engaged in the expropriation.

The court in Cassirer held that the plain language of 28 U.S.C. § 1605(a)(3), which states only that the property be “taken in violation of international law,” has no requirement as to who must actually engage in the taking. The court then found that the Foundation is engaged in sufficient commercial activity in the United States – advertising for tourism – to fall under the commercial activity exception in this section of the FSIA.

In light of the limited jurisdiction it possessed on interlocutory appeal, the Ninth Circuit in Cassirer declined to engage in an extensive review of defense arguments that the plaintiff was required to exhaust local remedies for jurisdiction to lie in the United States. It also declined to review the lower court’s denial of the motion to dismiss on grounds related to personal jurisdiction and the case-or-controversy requirement.

The plaintiff, Southern California resident Claude Cassirer, seeks recovery of Rue Saint-Honoré, après-midi, effet de pluie (below right). A Nazi agent allegedly (and in this author’s opinion certainly) confiscated this 1897 painting by the impressionist Camille Pissaro from the plaintiff’s grandmother, Lily Cassirer. (image credit) The Ninth Circuit in Cassirer reiterated the basic allegations as follows:

In 1939 Lilly decided she had no choice but to leave Germany. By that time – as the district court judicially noticed – German Jews had been deprived of their civil rights, including their German citizenship; their property was being “Aryanized”; and the Kristallnacht pogroms had taken place throughout the country. Permission was required both to leave and to take belongings. The Nazi government appointed Munich art dealer Jakob Scheidwimmer as the official appraiser to evaluate the works of art, including the Pissarro painting, that Lilly wished to take with her. Scheidwimmer refused to allow her to take the painting out of Germany and demanded that she hand it over to him for approximately $360. Fearing she would not otherwise be allowed to go, and knowing she would not actually get the money because the funds would be paid into a blocked account, Lilly complied.

The court explained how the painting made its way to the collection of the Thyssen-Bornemisza Collection Foundation:

Schweidwimmer traded the painting to another art dealer, who was also persecuted and fled Germany for Holland. After Germany invaded Holland, the Gestapo confiscated the painting and returned it to Germany, where it was sold at auction to an anonymous purchaser in 1943. It turned up at a New York gallery in 1952 and was sold to a St. Louis collector; it was sold again in 1976 to a New York art dealer who, in turn, sold it to Baron Hans-Heinrich Thyssen-Bornemisza. Bornemisza lived in Switzerland and was a preeminent private collector.

A petition for certiorari almost certainly will be filed with the Supreme Court.

Breaking News: ICJ Rules in Germany v. Italy on Legality of Counter-Claim

Hot off the presses and straight from the source, I have an advanced copy of the International Court of Justice preliminary ruling concerning Italy’s counterclaims in the Jurisdiction Immunities of the State (Germany v. Italy). (The opinion should be online soon; the ICJ's press release, dated 20 July, is here).
By way of background, the original claims by Germany stem from the fact that Italian courts had permitted certain civil claims to be pursued by Italian nationals based on violations of international humanitarian law (including the forced labor of Italian POWs and deportation (see photo, below left)) in the World War II and postwar period. Germany has argued that it is entitled to sovereign immunity. In particular, in its initial Application and Memorial to the Court, Germany argued that the claims were barred by virtue of the 1947 Peace Treaty between the two countries—which promised restitution for seized property and contained a waiver of other claims on behalf of Italy and Italian citizens.
Italy, in turn, appended a counter-claim in its Counter-Memorial, espousing the claims of certain nationals against Germany arising out of WWII-era violations. Both the primary and counter-claims premised ICJ jurisdiction on the 1957 European Convention for the Peaceful Settlement of Disputes, in which parties agreed submit to the judgment of the ICJ all international legal disputes that may arise between them, including those that may constitute a breach of an international obligation and any claims for reparation. The Convention is prospective in that it does not apply to

[d]isputes relating to facts or situations prior to the entry into force of [the] Convention

which for the parties occurred in 1961.
In its subsequent objections to the counter-claim, Germany argued that the counter-claims were not proper according to Rule 80 of the Rules of the Court, which requires that counter-claims:

1. Come within the jurisdiction of the Court and
2. Be directly connected with the subject matter of the original claim.

Germany reserved its position on the second element of the test. On the question of jurisdiction ratione temporis, Germany argued that the only operative facts at issue in the counter-claims concern violations of international law allegedly committed by German armed forces and occupation authorities in the immediate post-WWII period, well before the enactment of the European Convention.
For its part, Italy argued that whereas the underlying breaches (the fact of which are not in dispute between the parties) occurred in that period, the right to reparation (which is in dispute) emerged anew from the 1961 Agreements—which post-date the entry into force of the European Convention and voided any waiver of claims in the original Peace Treaty—and the Law on “Remembrance, Responsibility and Future” Foundation and other legislation enacted by Germany more recently to address an outpouring of WWII claims not subject to postwar peace treaties or agreements. Italy argued in essence that these subsequent actions barred Germany from relying on the waiver in the Peace Treaty.
In response, Germany argued any right to reparation was not a new claim, but a “consequence” of the original claims. It also argued that Italy unequivocally waived any claims it or its citizens might have had in the original Peace Treaty; the 1961 Agreements were mere “gesture[s] of goodwill;” and the exclusion of Italian claims from the ambit of more recent reparative legislation does not give rise to any new claim of right.
In ruling against Italy and rejecting the counter-claims, the ICJ made clear that it would consider only those facts and situations that are the true “source of the dispute” or its “‘real cause.’” In this regard, the Court ruled that

• the original waiver remained extant and by its subsequent actions, Germany did not renounce any right to rely on it in the present dispute;
• the 1961 Agreements did not create any new claims of right on behalf of the Italian citizens whose claims undergirded the counter-claims, and
• the 2000 legislation did not create any new obligations on the part of Germany to pay reparations to Italian citizens.

As such, the Court lacked temporal jurisdiction over Italy’s counter-claims.
Judge Antonio Cançado Trindade (right, from Brazil), who joined the Court in 2009 having served as a Judge on, and President of, the Inter-American Court of Human Rights (IACHR) from 1995-2008, appended a Dissenting Opinion five times the length of the majority holding. Judge Trindade, who became known at the IACHR for his ever frequent and always elegant separate opinions, is staying true to form at the ICJ.
His opinion, which focused on the complexities of the parties’ positions not apparent from the superficial majority holding, hinged on the idea that Germany’s breaches of international law were of a continuing character, as recognized by

• Article 14(2) of the ILC’s Articles on State Responsibility,
• the ICJ in the South West Africa Case (wherein the Court ruled that South Africa’s continued occupation of Namibia constituted a continuing violation giving rise to international responsibility), and
• a host of international human rights decisions.

In particular, he cited a number of decisions and instruments concerned with forced disappearances, which have been deemed to constitute continuing violations of the victim’s right to life, right to liberty and security of person, and right to be free from torture and other cruel treatment, as well as family members’ rights to access to justice and to a fair trial.
In this regard, Judge Trindade decried the fact that the majority opinion homogenized and rendered invisible the victims’ newly acquired rights arising from the 1961 Agreements (which embodied new obligations, voluntarily assumed by Germany), subsequent German legislation revisiting the question of reparations, and subsequent dealings between the parties, inter alia. In so doing, the Court left the state immunity claim in artificial isolation, notwithstanding that the original claim and the impugned counter-claim were “ineluctably intertwined” and, as such, indivisible. Most importantly, Judge Trindade correctly noted that the Court missed an opportunity to interrogate more closely the power of states to waive rights (especially rights arising from jus cogens) that are not, ultimately, theirs to waive. All in all, he summed up the majority opinion as follows:

The Court’s decision … seems more open and receptive to the sensitivities of States than to the victimized human beings, subjected to deportation and sent to forced labour.

In his estimation, the counter-claims should have been declared admissible and then subject to a rigorous testing on the merits. Hear hear.

Human rights claims clear immunity hurdle

(My thanks to IntLawGrrls for the opportunity to contribute this guest post discussing a case on which I worked while an intern at the Center for Justice & Accountability)

The U.S. Supreme Court unanimously has rejected certain claims to immunity against civil actions alleging human rights violations. Still, questions remain.

In Samantar v. Yousuf, the Court held last week that the Foreign Sovereign Immunities Act does not shield former government officials from liability for suits filed under either the Torture Victim Protection Act or the Alien Tort Statute.

As IntLawGrrls have posted (here, here, and here), during the late 1980s petitioner Mohamed Ali Samantar served as the First Vice President and Minister of Defense of Somalia for the regime headed by President Siad Barre. Under Samantar's direction, the Somali military subjected the seven respondents/plaintiffs, or their family members, to torture, cruel, inhuman and degrading treatment, or extrajudicial killings. These victims’ only "offense" was membership in the Isaaq clan, a prosperous and independent group perceived by the regime as a likely source for potential political rivals.
After the Barre regime collapsed, Samantar moved to the United States and took up residence in Virginia. In 2004 respondents filed suit under the Torture Victim Protection Act and the Alien Tort Statute. These laws confer jurisdiction on federal courts to hear cases regarding foreign torts committed in violation of international law -- in this case, torture and extrajudicial killing. Samantar moved to dismiss. The federal district court granted his motion, reasoning that he was acting within the scope of his authority as a foreign official and, therefore, that the FSIA shielded him from liability. The U.S. Court of Appeals for the Fourth Circuit reversed, and the Supreme Court granted respondents' petition for certiorari.
The high court’s just-issued decision is a victory for human rights advocates in this country, because it prevents former foreign officials from claiming immunity under the FSIA for their human rights abuses.

The principal opinion, authored by Justice John Paul Stevens (left), rests on a very detailed and technical reading of the terms “agency or instrumentality” and “foreign state” in the FSIA. “Agency or instrumentality,” as defined by the statute itself, is an “entity,” “separate legal person, corporate or otherwise,” or an “organ” of the state -- language the Court interprets to mean an organization or corporation, not an individual official.

Stevens wrote (slip op. at 16):

Reading the FSIA as a whole, there is nothing to suggest we should read 'foreign state' in § 1603(a) to include an official acting on behalf of the foreign state, and much to indicate that this meaning was not what Congress enacted.

As a result, the Court ruled that the petitioner/defendant does not qualify as an agency or instrumentality of a foreign state, even if he was acting within the scope of his official authority. Thus he cannot rely on the FSIA to protect him from liability.
The Court also looked to the legislative history and intent of the FSIA to bolster its reading of the statute. Examining the complicated interplay between immunity for foreign states and for foreign officials, it held that Congress intended to leave immunity for foreign officials outside the scope of the act. Not surprisingly, in separate concurring opinions, Justices Samuel A. Alito Jr., Antonin Scalia, and Clarence Thomas took exception to the Court’s use of legislative history in its interpretation of the statute.
With this very narrow judgment the Court left open a series of important and niggling questions; for example:

► Do former government officials have immunity stemming from the common law?

► If so, what form does that immunity take and who determines it?

The Office of the Solicitor General has argued consistently that the Executive Branch, and more specifically the U.S. State Department, has the power to determine common law immunity, not the courts.

This is an interesting and infrequently litigated area, which will no doubt garner much debate in the coming years.

Interpreting foreign officials' immunity

(IntLawGrrls is delighted to welcome a new guest post, from alumna Chimène Keitner, on an amicus brief she's just filed in an Alien Tort case before the U.S. Supreme Court)

A year ago January, as Beth Van Schaack then posted, the U.S. Court of Appeals for the Fourth Circuit dealt a “blow” to foreign sovereign immunity in Yousuf v. Samantar, which held that the Foreign Sovereign Immunities Act of 1976 does not apply to individuals. Samantar, who lives in Virginia and is the former Prime Minister and Minister of Defense of Somalia, faces claims for torture and extrajudicial killing brought under the Alien Tort Statute and the Torture Victim Protection Act. The U.S. Supreme Court granted Samantar’s petition for certiorari to review the Fourth Circuit’s decision interpreting the FSIA, as posted last fall by IntLawGrrls guest/alumna Pamela Merchant, Executive Director of the Center for Justice & Accountability. (The Huffington Post has published Pamela's thought-provoking summary of the case; moreover, information on the case and links to legal documents are available on the CJA’s website.) Briefing is currently in progress, and oral arguments are scheduled for March 3.
Strictly speaking, the questions before the Court at this juncture are, simply,
► Whether the FSIA provides immunity to individual foreign officials and,
► If it does, whether it also provides immunity to former foreign officials.
The Fourth Circuit found that the FSIA does not apply to individuals, and it remanded the question of whether other sources of immunity might nonetheless apply. The Solicitor General filed an amicus curiae brief urging the Supreme Court to affirm the Fourth Circuit’s interpretation of the FSIA. Numerous briefs that have been filed by other amici may be found here.
The Brief of Professors of Public International Law and Comparative Law as Amici Curiae in Support of Respondents -- for which I was counsel of record and whose signatories include IntLawGrrl guest/alumna Mary Ellen O'Connell -- systematically examines non-FSIA case law involving the immunities of foreign officials from civil suit. In the context of this case, the amicus brief refutes two unsupported assertions made by petitioner Samantar:
► First, Samantar asserts that “pre-1976 common law immunized a state’s officials for their official acts.” He relies heavily on this assertion for his conclusion that the FSIA should be read to include former foreign officials notwithstanding the omission in FSIA, 28 U.S.C. § 1603(a), of any reference to individuals in its definition of the term “foreign state.”

► Second, Samantar claims that “the overwhelming current international authority” provides immunity to former foreign officials sued in their personal capacity for acts of torture and extrajudicial killing. The authorities he cites, and significant authorities that he omits to cite, do not support these assertions. Non-FSIA sources of foreign official immunity do not provide a blanket shield from personal liability for universally recognized international law violations, even if such violations were committed by individuals who held government positions.

U.S. Supreme Court soon to hear Somalia human rights case

(IntLawGrrls welcomes this guest post from our guest/alumna Pamela Merchant)

At the start of its new Term this month, the U.S. Supreme Court announced that it will hear arguments in Case No. 08-1555, Samantar v. Yousuf. The decision represents a 1st for the nongovernmental organization that I head, the San Francisco-based Center for Justice and Accountability.

In 2004, CJA and and pro bono co-counsel at the law firm of Cooley Godward Kronish sued Somali General Mohamed Ali Samantar on behalf of 4 Somali men and 1 Somali woman. The complaint, based on the Torture Victim Protection Act and filed in the the U.S. District Court for the Eastern District of Virginia, accused Samantar of a wide range of human rights abuses, including torture, extrajudicial killing, and war crimes, committed during the regime of Siad Barré during the 1980s. Samantar was Somalia's Minister of Defense from 1980 to 1986 and Prime Minister from 1987 to 1990; he now resides in Fairfax, Virginia.

This past January, the U.S. Court of Appeals for the Fourth Circuit reinstated the suit, thus reversing the district court's 2007 dismissal.

Here's the issue before the Supreme Court:

Whether a foreign state’s immunity from suit under the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1604, extends to an individual acting in his official capacity on behalf of a foreign state and whether an individual who is no longer an official of a foreign state at the time suit is filed retains immunity for acts taken in the individual’s former capacity as an official acting on behalf of a foreign state.

To date, no person has ever been held legally responsible for the abuses committed by the military government against the civilian population of Somalia in the 1980s.

The Supreme Court's decision to hear Samantar represents a key point in CJA's struggle to combat the recent rise of immunity defenses to avoid accountability in human rights cases. Given the fact that the Supreme Court takes only 80 cases per year, we were surprised that a CJA human rights case made it to the top of the docket. Having said that, we are confident that we prevail and that our clients will ultimately have their day in court.

Conspiracy to Commit Torture

Within and without the U.S. government, debate continues about whether there should be legal accountability for the United States’ detainee policies, especially where those policies amounted to a license to torture and otherwise mistreat individuals in U.S. custody. (Prior IntLawGrrls posts on this issue may be found here.) Although little serious debate now occurs about whether particular techniques, such as waterboarding, constitute torture, questions remain as to the theories of penal responsibility that might be employed to reach senior levels of the Bush Administration.

Folks interested in this issue would do well to revisit the case law under the operative statute, the so-called Torture Act, 18 U.S.C. § 2340, which was enacted upon the United States’ ratification of the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment.

One does not have far to go.

To date, the only case to proceed under that statute is that against Charles “Chuckie” Taylor, Jr. aka Charles Emmanuel (left), the son of ex-President Charles Taylor of Liberia and a presumptive U.S. citizen who was apprehended at the Miami airport on passport fraud charges. (See posts here). He was later indicted by a grand jury for torture, conspiracy to commit torture and carrying or using firearms in connection with a felony (an enhancement statute, 18 U.S.C. § 924). The most important opinion generated during the case is here: United States v. Charles Emmanuel, 2007 U.S. Dist. LEXIS 48510 (S.D. Fl. July 5, 2007) (upholding constitutionality of the federal torture statute).

An oft-overlooked aspect of the Torture Act is that it criminalizes not only the commission and attempted commission of acts of torture, but also the conspiracy to commit torture:

(c) Conspiracy.— A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy.

This provision does not find a direct parallel in the Torture Convention, which at Article 4 directs state parties to enact penal legislation as follows:

Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.

The lack of specific mention of conspiracy liability in the treaty is not surprising given that many nations, especially those of the civil law tradition, either reject conspiracy liability outright or utilize more limited notions of conspiracy (in some cases limiting conspiracy liability to crimes against the state, such as sedition).

With representation from the Federal Public Defender, Taylor fils challenged the indictment against him, arguing inter alia that:

► Congress exceeded its authority in enacting the Torture Act, because the definition of torture does not precisely match the treaty definition, as torture can be prosecuted even where the pain and suffering are not inflicted for the purposes of intimidation, coercion, or for obtaining a confession as is stated in the treaty;

► Congress did not intend the Torture Act to apply extraterritorially;

► His prosecution violated the principle of sovereign immunity;

► The statute is void for vagueness, especially in light of contradictory memoranda emerging from the Department of Justice (the 2002 Bybee memo and the 2004 Levin memo superseding the Bybee memo) on the definition of torture; and

► The prosecution lacked a sufficiently nexus to the U.S. in violation of his 5th A due process rights.

The court disposed of these arguments with ease:

► Congress had the authority, and indeed was obligated, to enact the Torture Act in light of the U.S. ratification of the Convention Against Torture, which requires implementing legislation. Congress does not exceed its authority under the Necessary and Proper Clause of Article I of the Constitution when it does not enact treaty language verbatim, so long as the statutory language

bears a rational relationship to the stated objectives of the Convention.

Id. at *24. In any case, the court noted, the Offenses Against the Law of Nations Clause of Article I would also provide the necessary authority. Id. at *25-28.

► The statute applies extraterritorially by its express terms, which reach torture committed “outside the U.S.” Id. at *32-33. Furthermore, the court held that because the substantive statutory provision targets extraterritorial conduct, so too does the conspiracy provision. Id. at *33 (iting United States v. Layton (9th Cir. 1988), overruled on other grounds, Guam v. Ignacio (9th Cir. 1993)).

► On the sovereign immunity argument, the court ruled that the Foreign Sovereign Immunities Act does not apply to criminal actions, per binding 11th Circuit authority in the Noriega case. Id. at *40.

► On vagueness, the court held that the allegations in the indictment, coupled with the specific intent statutory language, sufficiently advised the ordinary person of the prohibited conduct. Id. at *43-45.

► On the due process challenge, the court ruled that the defendant’s presumptive U.S. citizenship (he was born in Boston) was a sufficient nexus to justify the application of the statute against him even for extraterritorial acts with no other connection to the United States. Id. at *45-*47. The Taylor case thus involved the nationality principle of jurisdiction rather than universal jurisdiction per se. The court specifically reserved the question of whether Taylor's mere attempt to enter the United States would have been a sufficient nexus for due process purposes, leaving open the question of whether the U.S. can constitutionally exercise "pure" universal jurisdiction. Id. at *47-48 n.12.

In October 2008, as we posted, a jury convicted Taylor of conspiracy, torture, and the possession of firearms during the commission of same and sentenced him to 97 years’ imprisonment.

It remains to be seen whether Taylor pere will follow in the footsteps of his son.

Across the pond, the Special Court for Sierra Leone recently rejected Charles Taylor Sr.'s Motion for Judgment of Acquittal.

A Blow To Foreign Sovereign Immunity

The 4th Circuit recently issued an important ruling in an Alien Tort Statute ("ATS") case involving a Somalian defendant brought by the Center for Justice & Accountability. (map of Somalia to the right; credit)
In Yousuf v. Samantar, plaintiffs are suing Mohamed Ali Samantar (found living in Virginia) for alleged acts of torture and other human rights violations committed against them by government agents commanded by Samantar during the brutal regime of Mohamed Siad Barre. The district court concluded that Samantar should enjoy immunity under the Foreign Sovereign Immunities Act, and dismissed the action for lack of subject matter jurisdiction. The 4th Circuit, bucking a contrary jurisprudential trend, recently concluded that the FSIA does not apply to individuals and reinstated the case.
Historically, states were immune from suit, subject to the whims of the executive. As the Supreme Court stated in The Schooner Exchange v. McFadden (1812):

One sovereign being in no respect amenable to another; and being bound by obligations of the highest character not to degrade the dignity of his nation, by placing himself or its sovereign rights within the jurisdiction of another, can be supposed to enter a foreign territory only under an express license, or in the confidence that the immunities belonging to this independent sovereign station, though not expressly stipulated, are reserved by implication, and will be extended to him.

Later, an inclination toward restrictive immunity emerged that withheld immunity for private acts of the state (jure gestionis, i..e. acts that could be undertaken by a non-governmental entity) while maintaining immunity over its public acts (jure imperii, i.e., acts that could only be committed by a state).

In 1976, Congress enacted the FSIA in many respects to codify the doctrine of restrictive immunity and depoliticize determinations of sovereign immunity. The FSIA reaffirmed immunity as a default defense in litigation against states and their agencies or instrumentalities, subject to a series of exceptions. Enumerated exceptions include
► situations in which a foreign state has “waived its immunity either expressly or by implication,”
► cases in which “the action is based upon a commercial activity carried on in the United States,” and
► suits against a foreign state for “personal injury or death or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment.”

The courts have been split as to whether an individual may constitute an agency or instrumentality of a state under the FSIA. A majority rule seemed to be emerging to the effect that they can. See Belhas v. Ya’Alon, 515 F. 3d 1279 (D.C. Cir. 2008) (“concluding that defendant was acting as an agency or instrumentality of [a] foreign state”); In re Terrorist Attacks on September 11, 2001, 538 F.3d 71, 83 (2d Cir. 2008) (considering the term “agency or instrumentality” to be broad enough to encompass “senior members of a foreign state’s government”). But see Enahoro v. Abubakar, 408 F.3d 877, 881-82 (7th Cir. 2005) (rejecting this approach as inconsistent with the statutory text).

In these cases, the courts determined that only where an enumerated exception to immunity exists, or where the defendant acted in his or her “personal or private” capacity, may individual state actors be sued under the ATS (or its sibling, the Torture Victim Protection Act ("TVPA")). This construction of the interaction between the two statutes has the potential to effectively eviscerate the TVPA and much of the ATS, because satisfying any state action requirement inherent to the tort alleged (such as torture, which requires a showing of state action) might automatically trigger the applicability of the FSIA. This is notwithstanding that the TVPA was passed after the FSIA and should not be subordinated to it without explicit Congressional guidance to that effect. The Belhas court, and courts following its lead, also failed to recognize that acts of torture and other human rights abuses can never be within the “official” functions of a foreign official, even where such actions are putatively undertaken in the service of the policies or interests of the sovereign, because such acts are unlawful under international law.

In Samantar, the 4th Circuit joined the 7th Circuit in ruling that
► the plain text of the statute,
► the entire statutory scheme,
► the legislative history, and
► the FSIA's object and purpose
did not support the district court opinion. Citing Dole Food Co. v. Patrickson, 538 U.S. 480 (2003), the 4th Circuit also indicated, in what is essentially dicta, that in any case, the FSIA would not apply to former government officials, such as Samantar (shown on the left).
The case was thus remanded for further proceedings, which will likely include a consideration on whether the plaintiffs failed to exhaust local remedies or whether the case is time-barred.

Additional details on the case are available here. Defendant has apparently moved for rehearing en banc and has announced he'll also seek cert if he does not prevail on his appeal.

On Art! Beyond Babylon...to federal court

(In this installment of IntLawGrrls "On Art!" series on artifacts of transnational culture, guest blogger Judith Weingarten, an archaeologist, returns to the blog with an account of legal issues swirling about a new show at a leading U.S. art museum)

The latest archaeological blockbuster at New York's Metropolitan Museum of Art is Beyond Babylon: Art, Trade and Diplomacy in the Second Millennium B.C.

The exhibit, which opened a week ago today, runs through March 15, 2009, and is the subject of this New York Times review, is the direct sequel to the Met's 2003 Art of the First Cities, which covered the third millennium B.C. But unlike the 2003 show, which took place as American troops invaded the heartland of ancient Mesopotamia, there is a gaping hole in the new show: 55 pieces from Syria — stone sculptures; frescoes; goldwork, including this stupendous bowl from the ancient city of Ugarit (below left) – were not sent as promised to New York.
In a wall card near the beginning of the show, the Met thanks the Syrian government for its willingness to lend such important objects, and expresses "deep regret that recent legislation in the United States has made it too difficult and risky for the planned loans to proceed." That legislation, an amendment made in January to the Foreign Sovereign Immunities Act, permits private individuals claiming to be victims of state-sponsored terrorism to file liens against property belonging to that state whenever the property is in the United States. Property loaned to museums may fall within the ambit of this amendment.
This is the almost inevitable sequel to the legal battle over the Persepolis tablets.

What are the Persepolis Fortification Tablets?
In size and durability, the Achaemenid Persian Empire had no equal before the creation of the Roman Empire and, like the Roman Empire, it created an area of political, economic, and cultural connections of an unprecedented scale. The Great King Darius I (522–486 B.C.) built
an imperial residence complex at Persepolis – today, Iran. This empire came to a brutal end when Alexander the Great conquered, looted, and burned the city in 330/329 B.C. Even in ruins, the massive platform, lofty columns, sculptured walls, and staircases were imposing, and for many centuries they attracted visitors.
But it was not until 1931 that The Oriental Institute of the University of Chicago began to excavate what lay beneath these standing ruins. One entirely surprising discovery was a large group of 15,000 to 30,000 or more cuneiform clay tablets. Together, these tablets constituted proof that behind the splendid palaces and sculptured façades that were the setting for the court of the Great Kings stood an administrative apparatus that controlled movements of food, animals, and labor in the region around the palaces, relying on an information system that was as complex and sophisticated as any in the ancient world.
Until their discovery, the main written sources for the Persian Empire were those written by foreigners — notably the Hebrew Bible and Greek sources such as Herodotus and historians of Alexander’s campaigns. These accounts, quite naturally, gave a partial and biased picture of the
Persian Empire.
The Persepolis tablets thus have a very deep modern significance as irreplaceable items of cultural heritage for the people of Iran. Persepolis and the Persian Empire are central symbols of their cultural identity.
It was therefore an extraordinary act of trust and international scholarly cooperation for when the Iranian government to allow the tablets to be brought to the Oriental Institute in 1936 on a long-term loan for purposes of conservation, translation and analysis. The massive quantity and fragile physical condition, coupled with the challenges of reading the texts. have made their analysis and publication a difficult, long-term project. Already it has extended for seventy years, and it is still far from completion. (Details on the tablet archive project are here.)

Return of the Texts
From the time of the tablets’ first arrival in Chicago, researchers at the Oriental Institute were keenly aware of the texts’ importance as the cultural heritage of the Iranian people, and of their scholarly responsibility not only to translate the tablets but also to ensure their return as loan objects back to Iran once analysis and recording were complete. The most recent return of loaned tablets, in 2004, received extensive in the international media. It therefore came as a complete shock when, several months later, the Oriental Institute was served with legal
documents demanding that it surrender the Persepolis tablets to satisfy the legal claims for damages in a lawsuit by victims of a Hamas bombing attack in Israel. (Details on the litigaton may be found here and here and here.)

The Oriental Institute found itself caught in the middle of a complex legal drama that began in Jerusalem in 1997 and is now playing out in a federal courthouse in Chicago. In 1997, a group of American tourists fell victim to a bombing attack in Jerusalem. The Palestinian organization Hamas claimed responsibility for the bombing. The surviving victims and the families of those who died argued that the Islamic Republic of Iran had funded Hamas and should therefore be held accountable to pay compensation. When the case was heard in federal court in Rhode Island, representatives of the state of Iran did not appear to contest the case. As a result, a default judgment was entered against Iran for over $400 million in damages. Because the tablets are on loan from Iran to the Oriental Institute, the plaintiffs are attempting to appropriate and sell them to satisfy the claim for damages. The Oriental Institute and the University of Chicago maintain that the law does not allow for the seizure of cultural heritage as compensation.

Whose tablets are these anyway?
The tablets are not commercial assets like oil wells, tankers, or houses. Instead, these types of culturally unique and important materials fall within a special protected category and are not subject to seizure. This trove of tablets has never been a commercial item to be bought or sold. The tablets have never been a source of profit either to Iran or to the Oriental Institute. They are non-commercial items of cultural heritage, every bit as unique and important as the original document of the Constitution of the United States. (Imagine if a future Iraqi government were to put a lien on that document.) The stakes are enormous. If the lawsuit prevails, this would do irrevocable harm to scholarly cooperation and cultural exchanges throughout the world.
That is already starting to happen. The Syrian government had offered to lend the Met invaluable parts of their cultural heritage: many of these objects that had never left the country before. Of American institutions, only the Met has the resources to pull off such a project, which depends as much on personal contacts as on cash.
That little card on the wall doesn’t say it all.
The Met submitted applications for immunity from seizure for all the borrowed foreign works — including pieces from Armenia, Georgia, Greece, Lebanon and Turkey, as well as Syria — but finally decided that the FSIA amendment jeopardized the Syrian loans. Though not on display, the 55 Syrian objects are in the catalog. There you can see how important a role they played in the internationalist narrative conceived by Joan Aruz (right), the curator in charge of the Met’s department of ancient Near Eastern art.

World Conference on Japanese Military Sexual Slavery

Further to Grace O’Malley’s “Go On” post below, I will be attending the World Conference on Japanese Military Sexual Slavery and speaking on a strategy panel during the legal conference on Saturday. A perfect storm of legal doctrines, foreign policy objectives, treaty provisions waiving claims for reparations, failures of political will, and Japanese intransigence has left the “comfort women” with little in the way of legal options at this point. If we imagine a matrix of available legal mechanisms along several axes—international & domestic fora, civil & criminal claims, state & individual defendants—every possible accountability configuration has been either unsuccessful to date or is entirely foreclosed.
The great missed opportunity in this story of impunity and cover up was the failure of prosecutors before the International Military Tribunal for the Far East (“the Tokyo Tribunal”— left) to include charges relating to the “comfort women” in their indictment of the major Japanese Imperialists. For many years, it was widely assumed that this omission was due to the fact that Japan had completely covered up the “comfort system” in the post-WWII period by ordering relevant documents to be destroyed and the women killed or hidden. It later came to light, however, that the Allies had sufficient information at the close of the war to serve as the basis for indictments. (The photo to the right is apparently an Allied soldier interviewing a "comfort woman" in Burma).
Whereas crimes of sexual violence were wholly absent from the Nuremberg judgment, at least at Tokyo the “rape of Nanking” among other atrocities served as the basis for conviction of the major Japanese defendants. There were no facts presented at all about the “comfort system,” however. This is notwithstanding that slavery and the related crimes of forced labor and the trafficking of women and children were outlawed in a number of multilateral treaties (e.g., ILO Convention No. 29 of which Japan was a member). The crimes inherent to the “comfort system” were thus much better codified under international law than many other crimes against humanity prosecuted at Nuremberg and Tokyo.
In terms of civil claims against Japan itself, the states from whom the comfort women were forcibly abducted or fraudulently recruited could have espoused the claims of their female citizens and brought suit against Japan before the International Court of Justice (below), which can entertain civil suits against states that have accepted its jurisdiction. Korea, which was the source of 80% of the victims, would have been an obvious Applicant. Korea, however, signed a treaty with Japan in 1965 that included a waiver of any wartime claims that might be made by Korean nations in exchange for the payment of $800 million in grants, soft loans, etc. And, Japan’s acceptance of ICJ jurisdiction was expressly prospective, so any claims would have been the more indirect and tricky claims related to the cover up and denial of justice.
In terms of domestic fora, the “comfort women” have tried to bring suit against Japan in United States and Japanese courts. In the United States, these claims were foreclosed through the operation of state immunity doctrines (the case was governed by the Foreign Sovereign Immunities Act, which withholds state immunity in only narrow circumstances), the statute of limitations, and the prudential political question doctrine. In getting the cases dismissed on foreign sovereignty and political question grounds, Japan benefited from the assistance of its longtime ally the United States, whose government submitted statements of interest urging the courts to dismiss the cases on the ground that the 1951 Treaty of Peace waived all reparations claims. Article 14(b) of that treaty reads:

Except as otherwise provided in the present treaty, the Allied Powers waive all reparations claims of the Allied Powers, other claims of the Allied Powers and their nationals arising out of any actions taken by Japan and its nationals in the course of prosecution of the War.

Its position in the Japanese litigation is in stark contrast to the productive role the United States played in helping to settle scores of historical justice lawsuits filed in U.S. courts against German and Swiss defendants.
In terms of claims against responsible individuals, the only criminal prosecutions held to date were in the then-Dutch East Indies before a Dutch occupation court, which prosecuted Japanese soldiers for abuses against 35 Dutch women held as “comfort women.” Prosecutors did not include crimes committed against Asian women in these proceedings. Conceivably tort claims could have been brought in the United States against responsible individuals under the Alien Tort Statute (ATS) if personal jurisdiction could have been obtained against them here. The ATS carries a 10-year statute of limitation, however, which may serve to bar claims. Arguably, claims should be tolled until at least the early 1990s when official documents about the “comfort system” first came to light and the Government of Japan finally began admitting its role in establishing and maintaining the system in piecemeal and contested apologies.
This legal impasse makes political efforts like House Resolution 121 so important. H.R. 121, sponsored by Representative Mike Honda (D-CA) (left), provides as follows:

That it is the sense of the House of Representatives that the Government of Japan

(1) should formally acknowledge, apologize, and accept historical responsibility in a clear and unequivocal manner for its Imperial Armed Forces' coercion of young women into sexual slavery, known to the world as "comfort women”, during its colonial and wartime occupation of Asia and the Pacific Islands from the 1930s through the duration of World War II;

(2) would help to resolve recurring questions about the sincerity and status of prior statements if the Prime Minister of Japan were to make such an apology as a public statement in his official capacity;

(3) should clearly and publicly refute any claims that the sexual enslavement and trafficking of the “comfort women” for the Japanese Imperial Armed Forces never occurred; and

(4) should educate current and future generations about this horrible crime while following the recommendations of the international community with respect to the “comfort women.”

It remains to be seen whether this resolution, together with the results of this weekend’s conference, can spur the Government of Japan to heed the words of Japanese intellectual Uchimura Kanzo (below), who wrote in 1897:

Repentance is humble acknowledgement of the supremacy of the Eternal Law of Justice, from which no man or nation—not even Japan—can be exempt. … The sooner we own our evils as evils the better.

(Posted by Beth Van Schaack, aka "Eleanor Roosevelt")