Can one nation’s courts sit in judgment of another nation’s acts?

Daya Gamage – US National Correspondent Asian Tribune
Washington, D.C. 06 March (

The United States Supreme Court when hearing technical arguments on “war crimes charges” against former Somali defense minister and prime minister Mohamed Ali Samantar on March 03 (2010) whether he has immunity under U.S. law - Foreign Sovereign Immunity Act - the pivotal issue the justices faced was whether one nation’s courts has the right to sit in judgment of another nation’s acts.

When the issue of former Bush administration Defense Secretary Donald Rumsfeld’s litigation in a Spanish court in 2008 on Guantanamo detainee torture charges was raised the justices and the attorney for the Solicitor General Office were in a consensus that the U.S. Government’s position in opposing a ‘Rumsfeld Trial’ was correct as he was acting on behalf of his government.

The Deputy Solicitor General Kneedler who represented the Obama Administration said: “Under established international and domestic law, the lawsuit cannot proceed once the U.S. government notifies the Spanish court that the Secretary of Defense was acting in his official capacity on behalf of the U.S. government.”

A significant issue also emerged that one nation’s courts have no jurisdiction to sit in judgment of another nation’s acts.

The immunity of the former Somali defense minister was questioned in the light that there was no functioning government in Somalia to speak on his behalf a question was raised whether he was culpable of alleged torture charges when there is no functioning government at present to speak on his behalf, and whether the country could or couldn’t be held responsible for the acts and further whether officials who acted on behalf of that country could be held responsible if the country is not held responsible.

The United States Supreme Court’s decision on this case, which is expected in July this year, may have far reaching politically powerful policy implications for the U.S. and its foreign relations.

The justices wrestled with two laws that seemed to point in different directions. The Torture Victims Protection Act of 1991 allows lawsuits against individuals said to have committed torture under the authority of a foreign nation. But the Foreign Sovereign Immunities Act of 1976 bars suits against foreign states and their “agencies or instrumentalities.”

In this case before the U.S. Supreme Court charges have been leveled against the former defense minister and prime minister of Somalia Mohamed Ali Samantar who currently lives in the State of Virginia in the U.S. after fleeing Somalia in 1991 to Rome, and then moving to the U.S. join his family in 1997. The charges brought by five naturalized U.S. citizens of Somali origin that Samantar bears command responsibility for a "regime of repeated rape, abduction, summary execution, and long imprisonment in solitary confinement" of many of their relatives.

The former Somali defense minister/prime minister’s attorneys argued that their client has immunity under Foreign Sovereign Immunity Act.

The questions presented to the Supreme Court are:

1. Whether a foreign state’s immunity from suit under the Foreign Sovereignty Immunities Act (FSIA), 28 U.S.C. § 1604, extends to an individual acting in his official capacity on behalf of a foreign state.

2. Whether an individual who is no longer an official of a foreign state at the time suit is filed retains the immunity for acts taken in the individual’s former capacity as an official acting on behalf of a foreign state.

Supporting the torture victims at the Supreme Court on March 03 was the Obama administration’s Deputy Solicitor General Edwin Kneedler.

Kneedler argued there's no reason to grant immunity to an official of a collapsed state that has not functioned as a state in nearly 20 years.

Former Somali defense minister/prime minister Samantars’s attorney Mr. Dvoretzky’s question that “One nation’s courts cannot sit in judgment of another nation’s acts, and U.S. courts are not the ultimate arbiters of foreign law” prompted Justice Scalia to refer to Bush administration’s Secretary of Defense Donald Rumsfeld. The justice reminded that “a few years ago, a Spanish court allowed a lawsuit to proceed against U.S. secretary of defense and you (the justice addressing the US Government attorney) say that’s perfectly okay?”

To this Deputy Solicitor General Kneedler answered: It would not be perfectly okay. Under established international and domestic law, the lawsuit cannot proceed once the U.S. government notifies the Spanish court that the Secretary of Defense was acting in his official capacity on behalf of the U.S. government.

Justice Scalia: The immunity statute applies to foreign states, but its text, it seems to me, does not include private individuals.

Former Somali defense minister Samantar’s Lawyer Dvoretzky contended that the effect of holding former officials liable would be the same as holding the state liable.

Mr. Samantar has called the accusations in the lawsuit baseless. His lawyer, Shay Dvoretzky, said that Mr. Samantar had worked on behalf of his government “in the midst of what was effectively quelling a secessionist insurgency.”

Representing the Somali refugees, lawyer Patricia Millett told the justices that the Torture Victims Protection Act would be an empty statute if former officials of a foreign state were automatically immune.

But the Chief Justice Roberts posed the following significant question:

Chief Justice Roberts: The only way a state can act is through people, and you're saying the state is insulated, but the people who do the acts for the state are not.

Justice Ginsburg: Under your theory, is there any torture suit that would survive?

Answer: If the state weighs immunity, it would.

Justice Ginsburg: But that's not going to happen. Justice Ginsburg continuing said: You say that the officer is the same thing as the state. But this case is seeking money out of the pocket of Samantar and no money from the treasury of Somalia.

Answer (by Samanter’s lawyer): Regardless, one nation's courts cannot sit in judgment of another nation's acts. And the basis for liability, asserted in this case, is (former Somali defense minister) Samantar's acts on behalf of the state of Somalia.

International Law

The Asian Tribune, for the benefit of the readers, would like to cite where the international law stands in this type of cases.

International law does not require, as a condition of a state's entitlement to claim immunity for the conduct of its servant or agent that the latter should have been acting in accordance with his instructions or authority. A state may claim immunity for any act for which it is, in international law, responsible, save where an established exception applies. In 2001 the International Law Commission promulgated Draft Articles on the Responsibility of States for Internationally Wrongful Acts. Article 4 provides:

"Conduct of organs of a State

1. The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central government or of a territorial unit of the State.

2. An organ includes any person or entity which has that status in accordance with the internal law of the State."

The commentary on paragraph (2) of this article observes:

"A particular problem is to determine whether a person who is a State organ acts in that capacity. It is irrelevant for this purpose that the person concerned may have had ulterior or improper motives or may be abusing public power. Where such a person acts in an apparently official capacity, or under color of authority, the actions in question will be attributable to the State."

Article 7 takes the matter further:

"Excess of authority or contravention of instructions

The conduct of an organ of a State or of a person or entity empowered to exercise elements of the governmental authority shall be considered an act of the State under international law if the organ, person or entity acts in that capacity, even if it exceeds its authority or contravenes instructions."

This article also is considered in the commentary:

"The problem of drawing the line between unauthorized but still 'official' conduct, on the one hand, and 'private' conduct on the other, may be avoided if the conduct complained of is systematic or recurrent, such that the State knew or ought to have known of it and should have taken steps to prevent it. However, the distinction between the two situations still needs to be made in some cases, for example when considering isolated instances of outrageous conduct on the part of persons who are officials. That distinction is reflected in the expression 'if the organ, person or entity acts in that capacity' in article 7. This indicates that the conduct referred to comprises only the actions and omissions of organs purportedly or apparently carrying out their official functions, and not the private actions or omissions of individuals who happen to be organs or agents of the State. In short, the question is whether they were acting with apparent authority."

The case of former Somali defense minister/prime minister which was argued in the United States Supreme Court is expected to come out in judgment somewhere in July this year, and that decision may have far reaching politically powerful policy implications for the U.S. and its foreign relations.


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