- Associated Press - Wednesday, December 22, 2010

NEW YORK (AP) — The plaintiffs in two U.S. lawsuits accusing Pakistan’s spy chief of nurturing terrorists involved in the 2008 Mumbai attacks are hoping for a historic outcome recalling the Lockerbie settlement, but they would have to overcome serious legal obstacles first, lawyers and experts say.

The civil complaints naming Gen. Ahmed Shuja Pasha and his Inter-Services Intelligence agency as defendants are like past lawsuits filed in federal courts against overseas figures with alleged links to terrorist attacks and other atrocities.

A lawyer for the U.S. plaintiffs, John Kreindler, said Tuesday that they hope to win a deal like the one struck with Libya over the 1988 bombing of Pan Am Flight 103 over Lockerbie, Scotland. The $1.5 billion settlement announced in 2008 was seen both as a victory for the families of 180 Americans killed in the terrorist attack and as a diplomatic breakthrough with the North African nation, once a pariah.

“The hope is to obtain appropriate compensation, but we also see it as a chance for the United States and Pakistan to join together and condemn terrorism,” he said.

“I think our chances are very good,” he added. “We wouldn’t be doing it if it was simply for show.”

But experts say a U.S. court could find that Gen. Pasha, as a high-ranking foreign official, is protected by sovereign immunity. Even when not protected, many international defendants don’t bother to respond to summonses and, as a result, never see the inside of an American courthouse or engage in settlement negotiations.

Judges can hear testimony from the plaintiffs and order damages, but the chances of collecting are a long shot. In some cases, judges have tossed out cases after the U.S. government opposed them on diplomatic grounds.

“Lawsuits like this aren’t highly successful,” said John F. Murphy, a professor at Villanova University School of Law in suburban Philadelphia. “Decisions that have been favorable to the plaintiffs have been largely symbolic.”

In Pakistan, prominent lawyer Athar Minallah said Tuesday that with the U.S. court’s jurisdiction in question, he couldn’t see the litigation getting very far.

“Why should they even bother to respond?” Mr. Minallah said of Gen. Pasha and the ISI.

An ISI representative said Tuesday that Gen. Pasha had received a summons but declined to discuss the case further.

The wrongful death lawsuits were filed last month in federal court in Brooklyn by relatives of victims in the Mumbai attacks, which left 166 people and nine attackers dead. The assault has been blamed on the Pakistani militant group Lashkar-e-Taiba, which is also named as a defendant.

The lawsuits repeat long-standing allegations that the ISI “has long nurtured and used international terrorist groups,” including Lashkar.

“Defendant ISI provided critical planning, material support, control and coordination of the attacks” by a roving band of gunmen who attacked a Jewish community center, a popular restaurant and tourist hotels, the lawsuits allege.

The plaintiffs’ lawyer has said they would not publicly discuss the case. They include the Brooklyn father of Gavriel Holtzberg, a rabbi who was killed along with his pregnant wife at the Jewish center, and the wife of Sandeep Jeswani, a Chicago man who was traveling on business when he was killed at a hotel.

The lawsuits, which seek unspecified damages, were filed under the Alien Tort Statute, an 18th-century law that allows U.S. citizens to sue in U.S. courts for acts that violate international law. The law originally was enacted to prosecute pirates but has been used more recently by Holocaust survivors and relatives of people killed or tortured under despotic regimes.

In New York, lawsuits seeking billions of dollars in damages were filed by representatives, survivors and relatives of Sept. 11 victims against foreign governments, charities, financial institutions and individuals believed to have provided support to al Qaeda. The plaintiffs claim the defendants gave money to charities in order to funnel it to al Qaeda.

The cases still are pending but suffered a setback last year when the Supreme Court refused to allow claims against Saudi Arabia and four of its princes. The court left in place the ruling of a federal appeals court that the defendants are protected by sovereign immunity.

Other high-profile cases that were allowed to go forward have resulted in massive awards that remain unpaid.

In 2000, a federal judge in Manhattan ordered former Bosnian Serb leader Radovan Karadzic to pay $4.5 billion in damages for Serb atrocities in the 1992-95 Bosnian war. The award came only weeks after another jury returned a $745 million verdict against Mr. Karadzic in another civil case in the same courthouse.

The plaintiffs alleged gross human rights abuses, including genocide, torture, rape and execution in an ethnic cleansing campaign to drive non-Serbians from their homes in Bosnia-Herzegovina.

Mr. Karadzic fought the claims through New York lawyers for four years before telling the judge he would not defend himself. He never paid any damages and currently is fighting genocide charges at the U.N. war crimes tribunal in The Hague.

Mr. Karadzic mocked the civil litigation, writing, “Do you really believe that attaching a U.S. dollar sign to human tragedy around the world by empty judgments in uncontested lawsuits is a step toward peace or justice?”

There was a similar outcome for a lawsuit against former Haitian paramilitary leader Emmanuel “Toto” Constant, who human rights groups say ordered the slaughter in the early 1990s of slum dwellers loyal to exiled President Jean-Bertrand Aristide.

In 2006, another Manhattan judge awarded $19 million to three Haitian women who claimed they were gang-raped by paramilitary soldiers under Constant’s command. But Constant, who is now serving time in a New York state prison for mortgage fraud, never responded to the complaint, nor has he paid a dime in damages.

Still, the Center for Constitutional Rights, which sued on behalf of the women, considers the outcome a success, said Maria LaHood, a senior attorney for the human rights group.

Ms. LaHood said a main goal of such lawsuits is to hold the accused accountable by drawing attention to their crimes.

“It’s primarily about justice for the victims, even if they’re not going to be compensated in the end,” she said.

Associated Press writers Larry Neumeister in New York and Nahal Toosi in Islamabad, Pakistaqn, contributed to this report.

 

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