Monday, January 18, 2010

Last month, to the embar -rassment of the British government, a London judge issued a warrant for the arrest of former Israeli Foreign Minister and current opposition leader Tzipi Livni, in connection with alleged war crimes by Israeli defense forces during their intervention in Gaza a year ago.

Mrs. Livni cancelled a planned trip to London, and Prime Minister Gordon Brown was forced to apologize, stating that Israeli government officials are welcome in Britain “at any time.” This month, the Obama administration could face a similar situation when it submits its views to the U.S. Supreme Court regarding whether a former defense minister of Somalia may be sued in federal courts for war crimes committed by Somalia armed forces.

Human rights groups consider the case a litmus test of the administration’s avowed commitment to human rights. But the administration has a dilemma: If the Supreme Court concludes that former foreign government officials are subject to civil suits in the United States, it could open the door to human rights litigation against foreign government officials in the U.S. and complicate the administration’s diplomatic initiatives.

The current case before the U.S. Supreme Court involves a suit against Mohamed Ali Samantar, the former defense minister of Somalia during the brutal dictatorship of Siad Barre in the early 1980s. A group of Somali citizens sued Mr. Samantar in federal court in Virginia under the Alien Tort Statute, a 220-year-old federal law that allows aliens to bring suits in U.S. courts for violations of international law. The Somali plaintiffs claim that they were tortured and their family members raped and murdered by members of the Somali army under Mr. Samantar’s command.

In 2007, a federal judge dismissed the case, concluding that Mr. Samantar is immune from suit under the Foreign Sovereign Immunities Act, a federal law that codifies the centuries-old customary international law rule that protects sovereign governments from being sued in the courts of other countries. In 2009, however, a federal appellate court reversed the lower court decision, holding that the Foreign Sovereign Immunities Act protects only governments, not government officials.

Last fall, the Supreme Court agreed to review the case. The plaintiff-victims argue that the United States, as a leader in international human rights, should make its courts available to hold Mr. Samantar, and other former government officials, accountable for their acts of torture and murder. Mr. Samantar contends that he enjoys immunity from suit in U.S. and other foreign courts under both international and domestic law.

Although the executive branch is not required to give its views to the Supreme Court, given the importance of the international legal principles at stake and the precedent the Court’s decision will set for litigation against government officials in the United States and in other countries, the Obama administration should, and is likely to, file a brief. Human rights groups, many of which have been disappointed by the actions of the Obama administration over the last year, are urging the administration to oppose immunity for Mr. Samantar and to support the exercise of federal judicial jurisdiction over human rights violations committed by foreign officials.

The Obama administration faces a dilemma. It should support accountability for human rights violations and will certainly not want to facilitate impunity for a well-known human rights abuser. But international law has long recognized that government officials enjoy immunity for their official actions, and the administration has repeatedly affirmed its commitment to international law. Moreover, if the Supreme Court were to conclude that Mr. Samantar may be sued in U.S. courts, this would open the door to lawsuits against other former government officials, including Israeli, Chinese, Saudi and Russian officials with whom President Obama and Secretary of State Hillary Rodham Clinton have important diplomatic business. Mrs. Livni may be welcome in the United Kingdom, but she would risk being subject to civil suit in the United States. And the Obama administration may be leery about inviting reciprocal lawsuits against former U.S. officials in foreign countries at a time when the Defense Department and Central Intelligence Agency continue to direct lethal force (such as bombings and Predator missile strikes) against terrorists around the world, often resulting in civilian casualties.

Unpalatable as it would seem to be, the best legal and policy decision for the Obama administration would be to support Mr. Samantar’s immunity from civil suit in U.S. courts, but seek to promote justice and accountability for human rights abuses purportedly committed by Mr. Samantar and other foreign government officials in other, more direct ways, such as by pressing their own countries to hold them accountable (or waive their immunity), by supporting international criminal tribunals, and by funding international rule of law and victim rehabilitation programs. This approach would respect international rules of immunity, protect the Obama administration itself, and still promote international justice.

John B. Bellinger III isa partner in the Washington law firm of Arnold & Porter, an adjunct senior fellow at the Council on Foreign Relations, and served as the legal adviser for the Department of State from 2005 to 2009.

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