In suit by Nigerian citizens against former dictator, Seventh Circuit rules that Foreign Sovereign Immunities Act does not apply to individuals and that Torture Victim Protection Act precludes plaintiffs' Alien Tort Claims Act claims
The plaintiffs in this case are surviving Nigerian victims of the military junta that oppressed Nigeria from November 1993 until May 1999. They allege that officially sanctioned government crimes took place ranging from torture to murder.
The Illinois federal court rejected General Abdulsalami Abubakar's (defendant's) claim that he was immune from suit under the Foreign Sovereign Immunities Act of 1976 (28 U.S.C. Section 1605) for official conduct taken while he was a Nigerian public official. Defendant filed this interlocutory appeal. In a divided vote, the U.S. Court of Appeals for the Seventh Circuit affirms and remands.
The Court first notes that ""[t]he FSIA defines a foreign state to include a political subdivision, agency or instrumentality of a foreign state but makes no mention of heads of state.' ... We noted that the FSIA did not seem to subscribe to Louis XIV's not-so-modest view that "L'etat, c'est moi.'" [Slip op. 9] Under 28 U.S.C. Section 1603(a), a "foreign state" includes "a political subdivision of a foreign state or an agency or instrumentality of a foreign state."
In turn, an "agency or instrumentality of a foreign state" includes a "separate legal person, corporate or otherwise." 28 U.S.C. Section 1603(b). Spurning defendant's argument that "separate legal person" must include an individual, the Court declares: "[I]f it was [sic] a natural person Congress intended to refer to, it is hard to see why the phrase "separate legal person' would be used, having as it does the ring of the familiar legal concept that corporations are persons." [Slip op. 10-11]
Acknowledging a conflict with the Ninth Circuit on this point, the Seventh Circuit writes, "We are troubled by this approach " that is, by saying Congress did not exclude individuals; therefore they are included. Not only does it seem upside down as a matter of logic, but it ignores the traditional burden of proof on immunity issues under the FSIA.
"The party claiming FSIA immunity bears the initial burden of proof of establishing a prima facie case that it satisfies the FSIA's definition of a foreign state." [Slip op. 12] The Court does concede, however, that some courts have applied the FSIA to individuals when they are acting in their official capacity.
While the Seventh Circuit's interpretation of the FSIA as not affording immunity to defendant favors the plaintiffs here, the Court's conclusions about the relationship between the Alien Tort Claims Act (ATCA) [28 U.S.C. Section 1350] and the TVPA has the opposite effect. The majority holds that the 1991 Torture Victim Protection Act (TVPA) [Pub.L. No. 102-256, 106 Stat. 72, 28 U.S.C. Section 1350 note] precludes the bringing of torture claims under the ATCA.
Congress intended the TVPA to occupy the field of civil remedies against torture and extrajudicial killing. "If it did not, it would be meaningless. No one would plead a cause of action under the Act and subject himself to its requirements if he could simply plead under international law." [Slip op. 20]
The majority also finds some support in Sosa v. Alvarez-Machain, 124 S. Ct. 2739 (2004), See 2004 International Law Update 98. The Circuit Court writes: "[w]hile there is no explicit statement to this effect in Sosa, the implications are that the cause of action Congress provided in the Torture Victim Protection Act is the one which plaintiffs alleging torture or extrajudicial killing must plead." [Slip op. 20]
Noting the Supreme Court's emphasis that courts should exercise "great caution" when asked to adapt international law to private rights of action, the Seventh Circuit reasons that "[i]t is hard to imagine that the Sosa Court would approve of common law claims based on torture and extrajudicial killing when Congress has specifically provided a cause of action for those violations and has set out how those claims must proceed." [Slip op. 22]
The Court's reading of Sosa specifically weakens the plaintiffs' case because, unlike the ATCA, the TVPA, contains a preliminary procedural demand that the claimant has to have "[exhausted] adequate and available remedies in the place in which the conduct giving rise to the claim occurred." 28 U.S.C. Section 2(b).
This might be problematic here because the Nigerian government had persecuted the plaintiffs or their relatives as political enemies, arguably impeding their access to justice. The Seventh Circuit remands the case to the district court to determine whether it should let the plaintiffs file an amended complaint under the TVPA, and if so, whether they have exhausted "all adequate and available remedies" within Nigeria.
Citation: Enahoro v. Abubakar, 2005 WL 1243178; No. 03-3089 (7th Cir. May 23, 2005); news report by Laolu Akande βAbubakar floored at U.S. Appeal Court: Judges Say Human Rights Case Against Ex Ruler Can Proceed,β available at www.africanews.com.
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