Thursday, March 4, 2010

Supreme Court to Determine Immunity of Foreign Officials under "Federal Sovereign Immunities Act of 1976" and "Torture Victim Protection Act"

"Somali Prime Minister's Immunity Before Justices"

"In a case closely watched by foreign officials, the immunity of a former Somali prime minister involved in widespread killing, torture, and rape was put to question in the Supreme Court Wednesday. The ousted official had fled to the United States and was then sued in Virginia by his victims.

Defendant Mohamed Ali Samantar held several prominent positions in the oppressive Somalian government during the 1980s, serving as the vice president, as the minister of defense and as the prime minister. When the government was overthrown in 1991, Samantar fled to Kenya, then Italy, and finally settled in the United States, where he was sued by torture victims...

The court must now decide whether the Federal Sovereign Immunities Act of 1976 includes foreign officials when it immunizes 'agencies and instrumentalities' of a foreign country from being sued. And if foreign officials are immune under that act, the question would still turn on whether the Torture Victim Protection Act passed later would undo those immunities...

Shay Dvoretzky, a partner at Jones Day, represented Samantar. He argued that the immunity of "agencies and instrumentalities" of a foreign country includes foreign officials because they act on the state's behalf. He said this means the laws applied to the country and its officials are indistinguishable.

'U.S. courts are not the ultimate arbiters of foreign law,' he said.

Patricia Millett, a partner at Akin Gump Strauss Hauer & Feld, represented the victims, and was supported by the Obama administration. She said that foreign officials are not immune from being sued because the immunities act is only meant to protect the foreign country, not individuals. And she said that the vulnerable Samantar is liable under the torture victim act...

The district court granted Samantar's motion to dismiss the case, holding that claims against a foreign official equate to claims against the country, but the 4th Circuit reversed. It held that holding that individuals are not immune and if they were, Samantar is not because he is no longer a member of the Somali government."
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