2010 International Law Update, Volume 16, Number 7 (July)

2010 International Law Update, Volume 16, Number 7 (July)

Legal Analyses published by Mike Meier, Attorney at Law. Copyright 2017 Mike Meier. www.internationallawinfo.com. 

CRIMINAL LAW (ASSISTED SUICIDE)

German High Court rules that cutting off life support for a terminal patient with patient’s consent is not criminal offense under German law

The Defendant in this case is a lawyer specializing in health law. The Patient is Ms. K, born in 1931 and in a persistent coma since 2002. Ms. K made oral statements shortly before she fell into the coma that she did not wish any life‑extending measures and that she did “not want to be connected to any tubes.” A dispute broke out between Ms. K’s children and the Nursing Home where Ms. K was staying. Eventually, the parties agreed in 2007 that the Nursing Home would provide only palliative care and the children could terminate Mrs. K’s artificial nutrition. The Nursing Home administration later prevented the termination of artificial nutrition.

The Defendant advised the children of Ms. K to simply cut the tube that provides the nutrition. The children did so, but were discovered within minutes. Police were called in, and Ms. K was taken to a hospital where she died two weeks later from her multiple diseases. The district court in Fulda, Germany, convicted the Defendant of attempted manslaughter and sentenced him to nine months imprisonment. This appeal ensued.

Germany’s highest court, the Bundesgerichtshof (BGH), reverses. The Court summarizes its holdings as follows: (1) assisted suicide through withholding, limitation or termination of medical treatment is justified if this complies with the actual or presumed intent of the patient (Section 1901a BGB), and allows a terminal medical condition to take its course; (2) a termination of medical treatment can occur not only through withholding of treatment but also by affirmative acts; (3) specific acts that affect human life, which are not related to the termination of medical treatment, cannot be justified with the Patient’s consent.

The Court notes that this case arose before the federal law on “living wills” (advance health care directives) became effective in September 2009 (Patientenverfuegungsgesetz, Gesetz vom 29.07.2009, BGBl. I. S. 2286). The oral consent given by the Patient in September 2002, which has been corroborated, was binding both under the law at the time of the events and under the new federal law on living wills. The district court erred by holding that the Defendant had committed attempted manslaughter by actively preventing the continued artificial nutrition of the Patient. The Patient’s consent justifies not only the termination of life‑supporting measures, but also affirmative acts that terminate unwanted medical treatments.

Citation: [German] Bundesgerichtshof (BGH), Urteil vom 25. Juni 2010 ‑ 2 StR 454/09. The decision is available through the Court’s website http://www.bundesgerichtshof.de.

DECLARATIONS OF NATIONAL INDEPENDENCE

International Court of Justice issues Advisory Opinion on Kosovo’s Declaration of Independence from the Serbian Republic that international law does not prohibit such declarations

The Kosovo territory is disputed by Serbia and the Republic of Kosovo established by the 2008 declaration. The unilateral Declaration of Independence (DOI) of Kosovo from Serbia of February 17, 2008 was adopted in a meeting of the Kosovo Assembly. Serbia, however, claimed that the DOI was illegal. Upon Serbia’s initiative, the matter was referred to the United Nations (UN) General Assembly. The UN General Assembly issued a resolution to refer the matter to the International Court of Justice (ICJ) for an advisory opinion, pursuant to Article 65 of the ICJ Statute. It was adopted as Resolution 63/3 on October 8, 2008.

The ICJ held public hearings in December 2009 and issued its advisory opinion on July 22, 2010. The Court finds, by a vote of 10 to 4, that the DOI did not violate international law. The question of whether a member state will or will not recognize such a declaration, however, is a political one.

The ICJ cites the relevant parts of the declaration: “75. In its operative parts, the DOI of 17 February 2008 states: ‘1. We, the democratically‑elected leaders of our people, hereby declare Kosovo to be an independent and sovereign state. This declaration reflects the will of our people and it is in full accordance with the recommendations of UN Special Envoy Martti Ahtisaari and his Comprehensive Proposal for the Kosovo Status Settlement.’

2.’ We declare Kosovo to be a democratic, secular and multi‑ethnic republic, guided by the principles of non‑discrimination and equal protection under the law. We shall protect and promote the rights of all communities in Kosovo and create the conditions necessary for their effective participation in political and decision‑making processes. ...’

5. We welcome the international community’s continued support of our democratic development through international presences established in Kosovo on the basis of UN Security Council resolution (UNSCR) 1244 (1999). We invite and welcome an international civilian presence to supervise our implementation of the Ahtisaari Plan, and a European Union‑led rule of law mission. ...’

9. ‘We hereby undertake the international obligations of Kosovo, including those concluded on our behalf by the United Nations Interim Administration Mission in Kosovo (UNMIK), ...’

12. ‘We hereby affirm, clearly, specifically, and irrevocably, that Kosovo shall be legally bound to comply with the provisions contained in this Declaration, including, especially, the obligations for it under the Ahtisaari Plan . . . We declare publicly that all states are entitled to rely upon this declaration . . .’”

UNSCR 1244 (1999) authorized the United Nations Secretary‑General to establish an international civil presence in Kosovo in order to provide “an interim administration for Kosovo . . . which will provide transitional administration while establishing and overseeing the development of provisional democratic self‑governing institutions.” This resolution does not prohibit the independence declaration.

“118. ... [T]he Court cannot accept the argument that UNSCR 1244 (1999) contains a prohibition, binding on the authors of the [DOI], against declaring independence; nor can such a prohibition be derived from the language of the resolution understood in its context and considering its object and purpose. The language of UNSCR 1244 (1999) is at best ambiguous in this regard. The object and purpose of the resolution, as has been explained in detail ... is the establishment of an interim administration for Kosovo, without making any definitive determination on final status issues. The text of the resolution explains that the ‘main responsibilities of the international civil presence will include . . . [o]rganizing and overseeing the development of provisional institutions for democratic and autonomous self‑government pending a political settlement’ (para. 11(c) of the resolution; emphasis added).”

“The phrase ‘political settlement’, often cited in the present proceedings, does not modify this conclusion. First, that reference is made within the context of enumerating the responsibilities of the international civil presence, i.e., the Special Representative of the Secretary‑General in Kosovo and UNMIK [United Nations Interim Administration Mission in Kosovo]. Secondly, as the diverging views presented to the Court on this matter illustrate, the term ‘political settlement’ is subject to various interpretations. The Court therefore concludes that this part of UNSCR 1244 (1999) cannot be construed to include a prohibition, addressed in particular to the authors of the declaration of 17 February 2008, against declaring independence.”

“119. The Court accordingly finds that UNSCR 1244 (1999) did not bar the authors of the declaration of 17 February 2008 from issuing a [DOI] from the Republic of Serbia. Hence, the [DOI] did not violate UNSCR 1244 (1999).”

“120. The Court therefore turns to the question whether the [DOI] of 17 February 2008 has violated the Constitutional Framework established under the auspices of UNMIK. Chapter 5 of the Constitutional Framework determines the powers of the Provisional Institutions of Self‑Government of Kosovo. It was argued by a number of States which participated in the proceedings before the Court that the promulgation of a declaration of independence is an act outside the powers of the Provisional Institutions of Self‑Government as set out in the Constitutional Framework.”

The ICJ notes, however, that the Declaration was not issued by the Assembly of Kosovo or any other official body, but by the individual members of the Assembly, acting in their personal capacity. The declaration did not follow legislative procedure and was not properly published.

“121. The Court has already held, however ... that the [DOI] of 17 February 2008 was not issued by the Provisional Institutions of Self‑Government, nor was it an act intended to take effect, or actually taking effect, within the legal order in which those Provisional Institutions operated. It follows that the authors of the declaration of independence were not bound by the framework of powers and responsibilities established to govern the conduct of the Provisional Institutions of Self‑Government. Accordingly, the Court finds that the [DOI] did not violate the Constitutional Framework. [...]”

“... 122. The Court has concluded above that the adoption of the [DOI] of 17 February 2008 did not violate general international law, UNSCR 1244 (1999) or the Constitutional Framework. Consequently the adoption of that declaration did not violate any applicable rule of international law.”

Citation: Accordance with international law of the unilateral declaration of independence in respect of Kosovo (Request for Advisory Opinion), International Court of Justice, 22 July 2010. The opinion is available on the ICJ website http://www.icj‑cij.org.

ENFORCEMENT OF JUDGMENTS/TERRORISM

In action to enforce damage judgment against Iran, Second Circuit holds that Section 201(a) of Terrorism Risk Insurance Act (TRIA) provides subject matter jurisdiction over post‑judgment execution and attachment against a judgment‑debtor, even when judgment did not name Iran as defendant

Ira Weinstein, a U.S. citizen, was severely injured during a suicide bombing in Jerusalem in February 1996. The bomber belonged to Hamas known as terrorist organization. Weinstein later died as a result of the injuries. His widow and his children, as well as the co‑administrator of the estate (Plaintiffs) sued the Islamic Republic of Iran as well as several Iranian government agencies and officials which allegedly financed Hamas attacks. Iran failed to appear, and the U.S. District Court for the District of Columbia entered a $183 million default judgment.

The Plaintiffs registered the judgment in the U.S. District Court for the Eastern District of New York in 2002, and identified the Respondent Bank Melli Iran (Bank Melli) as a possible instrumentality of Iran. The District Court eventually determined that Bank Melli’s accounts were unattachable.

In 2007, one of the Plaintiff‑creditors, Jennifer Weinstein Hazi moved for the appointment of a receiver pursuant to Fed. R. Civ. P. 69 and New York Civil Practice Law and Rules Section 5228(a), to sell certain Bank Melli real estate in New York. Hazi argued that Bank Melli had been designated by the U.S. Department of Treasury, Office of Foreign Assets Control (OFAC) a “proliferat[or] of weapons of mass destruction,” and so its assets were frozen. See Executive Order 13,382 (2005). Thus, the Bank Melli real estate was subject to attachment under the Terrorism Risk Insurance Act of 2002 (TRIA), Section 201(a), Public L. No. 107‑297, 116 Stat. 2322, 2337, 28 U.S.C. Section 1610 note.

Bank Melli moved to dismiss contending [1] that the attachment and sale violates the U.S.‑Iran Treaty of Amity, and [2] it constitutes a taking without just compensation. The District Court granted the Plaintiffs’ motion for appointment of a receiver to attach the property to satisfy the prior judgment, but stayed the matter during the pendency of this appeal. The U.S. Court of Appeals for the Second Circuit affirms.

The Court first addresses Bank Melli’s argument that the District Court lacked jurisdiction. “The Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1602 et seq., provides the exclusive basis for subject matter jurisdiction over all civil actions against foreign state defendants, and therefore for a court to exercise subject matter jurisdiction over a defendant the action must fall within one of the FSIA’s exceptions to foreign sovereign immunity. .... In the underlying action that gave rise to the judgment on which Plaintiff now seeks to collect, the district court exercised subject matter jurisdiction over Iran and the other defendants under 28 U.S.C. § 1605(a)(7), which [1] abrogates immunity for those foreign states officially designated as state sponsors of terrorism by the Department of State [2] where the foreign state commits a terrorist act or provides material support for the commission of a terrorist act and the act results in the death or personal injury of a United States citizen. ... When such an exception applies, ‘the foreign state shall be liable in the same manner and to the same extent as a private individual under like circumstances....’ 28 U.S.C. § 1606 ...”

“Bank Melli was not itself a defendant in the underlying action. However, the FSIA has a separate section, Section 1609, that provides that, where a valid judgment has been entered against a foreign sovereign, property of that foreign state is immune from attachment and execution except as provided in the subsequent sections, Sections 1610 and 1611. 28 U.S.C. § 1609. Section 201(a) of the TRIA, codified as a note to Section 1610 of the FSIA, provides as follows: ‘Notwithstanding any other provision of law, and except as provided in subsection (b), in every case in which a person has obtained a judgment against a terrorist party on a claim based on an act of terrorism, or for which a terrorist party is not immune under [28 U.S.C. § 1605(a)(7)], the blocked assets of that terrorist party (including the blocked assets of any agency or instrumentality of that terrorist party) shall be subject to execution or attachment in the aid of execution in order to satisfy such judgment to the extent of any compensatory damages for which such terrorist party has been adjudged liable.’ TRIA § 201(a), 116 Stat. at 2337 (emphasis supplied).”

“The parties do not dispute that each of the elements of Section 201(a) is satisfied here. Iran has been designated a terrorist party pursuant to section 6(j) of the Export Administration Act of 1979, 50 U.S.C. App. § 2405(j), beginning January 19, 1984, ... and therefore is a ‘terrorist party’ as defined by TRIA § 201(d)(4), 116 Stat. at 2340. The district court in the underlying action found jurisdiction under 28 U.S.C. § 1605(a)(7), and thus Iran was not immune from jurisdiction in the original proceeding. ... Bank Melli’s assets were ‘blocked’ as of October 2007, designated as such pursuant to Executive Order 13,382 and 50 U.S.C. §§ 1701, 1702. Finally, Bank Melli concedes that it is an instrumentality of Iran.” [Slip Op. 6‑8]

Bank Melli presents the novel response that TRIA Section 201(a) does not provide jurisdiction over an instrumentality of a sovereign state when the instrumentality was not itself a party to the underlying tort action. The Court disagrees. Section 201(a) clearly states that “in every case in which a person has obtained a judgment against a terrorist party..., the blocked assets of that terrorist party (including the blocked assets of any agency or instrumentality of that terrorist party) shall be subject to execution or attachment....” TRIA § 201(a) (emphasis added). If Bank Melli’s interpretation were correct, the parenthetical language in Section 201(a) would be superfluous because the instrumentality would itself have been a “terrorist party” against whom the underlying judgment was issued. Therefore, it is clear that Section 201(a) provides subject matter jurisdiction over post‑judgment execution and attachment against a judgment‑debtor, even when held by an agency or instrumentality which is not named in the judgment.

Bank Melli next challenges the constitutionality of TRIA as applied to this case. The underlying judgment in this case dates from 2002. TRIA was enacted later in 2002, and Bank Melli was designated a “proliferat[or] of weapons of mass destruction” only years later. According to the Bank, the court should not apply TRIA retroactively. Again the Court disagrees.

TRIA merely overruled the Supreme Court’s opinion in First Nat’l City Bank v. Banco Para El Comercio Exterior de Cuba, 462 U.S. 611, 627‑28 (1983) (Bancec). There the Supreme Court found that “duly created instrumentalities of a foreign state are to be accorded a presumption of independent status.” Id. at 627. This ruling had nothing to do with the rendering of the judgment itself. TRIA simply renders a judgment more readily enforceable against a related third party.

The Court then addresses Bank Melli’s arguments based on the Treaty of Amity, Economic Relations and Consular Rights, U.S.‑Iran (August 15, 1955, 8 U.S.T. 899). Articles III and IV provide that both countries recognize the juridical status of companies, and that property of citizens and companies shall be protected. The intent of such treaties is to recognize the status of companies in the signatory countries and thus put them on equal footing with domestic companies. Such treaty provisions do not imply special protection of any company’s assets.

After rejecting the remainder of Bank Melli’s arguments, the Court grants the motion [1] to appoint a receiver to attach the property at issue and [2] to sell it in partial satisfaction of the judgment against Iran.

Citation: Weinstein v. Islamic Republic of Iran, No. 09‑3034‑cv (2d Cir. June 15, 2010).

POLITICAL QUESTION

U.S. Court of Appeals for District of Columbia, in en banc opinion, holds that Political Question doctrine bars claims by owners of Sudanese pharmaceutical factory bombed by U.S. forces in 1998 in aftermath of terrorist attacks on Kenya and Tanzania embassies

On August 20, 1998, a few days after terrorist attacks on the U.S. embassies in Kenya and Tanzania, the U.S. bombed the El‑Shifa pharmaceutical plant in Sudan. President Clinton explained in an address that the plant was associated with the Osama bin Laden network and involved in the production of chemical weapons materials. In a later message to Congress, the President stated that the bombing was necessary to prevent further terrorist attacks. Other government officials made similar statements, associating the plant with the al Qaeda network and its terrorist plans.

The owners of the plant (Plaintiffs) sued the U.S. in the U.S. District Court for the District of Columbia, seeking compensation. They claim that it was a purely pharmaceutical plant with no link whatever to bin Laden or terrorism. The District Court dismissed the case. On appeal, the Plaintiffs dropped their claims for compensation, and sought a declaration [1] that the U.S.’s failure to compensate victims violates international law, and [2] that the statements of U.S. government officials about them were defamatory. The U.S. Court of Appeals for the District of Columbia Circuit, however, affirms because the Political Question doctrine barred all claims. Later on, the District of Columbia Circuit granted a rehearing en banc. The full Court, in an en banc opinion, affirms.

“The case at hand involves the decision to launch a military strike abroad. Conducting the ‘discriminating analysis of the particular question posed’ by the claims the plaintiffs press on appeal, ... we conclude that both raise nonjusticiable political questions. The law‑of‑nations claim asks the court to decide whether the United States’ attack on the plant was ‘mistaken and not justified.’ The defamation claim similarly requires us to determine the factual validity of the government’s stated reasons for the strike. If the Political Question doctrine means anything in the arena of national security and foreign relations, it means [that] the courts cannot assess the merits of the President’s decision to launch an attack on a foreign target, and the Plaintiffs ask us to do just that. Therefore, we affirm the district court’s dismissal of the plaintiffs’ law‑of‑nations and defamation claims.” [Slip op. 14‑15]

The parties seemingly agree that courts cannot re‑consider the wisdom of discretionary foreign policy decisions by the Executive Branch. “The plaintiffs’ law‑of‑nations claim falls squarely within this prohibition because it would require us to declare that the bombing of the El‑Shifa plant was ‘mistaken and not justified.’ Whether an attack on a foreign target is justified—that is whether it is warranted or well‑grounded—is a quintessential ‘policy choice[] and value determination[] constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch.’ ... The Plaintiffs appear to recognize this. On appeal they imply that they need only prove [that] the United States failed to compensate them for an attack that was ‘mistaken.’ ... (conceding that ‘whether the attack was reasonable and justified when it occurred’ presents a ‘nonjusticiable question’).”

“By asserting [that] the El‑Shifa bombing was ‘mistaken,’ the Plaintiffs apparently mean that the United States would not have launched the strike if the relevant decisionmakers knew at the time what they allegedly know now—that the plant was neither involved in producing chemical weapons nor associated with bin Laden (e.g. describing the plant as ‘targeted in error’ and arguing [that] the bombing was mistaken because ‘evidence [has] emerged that the plant was in fact innocent property’).”

“But the Political Question doctrine does not permit us to mimic the constitutional role of the political branches by guessing how they would have conducted the nation’s foreign policy had they been better informed. Whether the circumstances warrant a military attack on a foreign target is a ‘substantive political judgment[] entrusted expressly to the coordinate branches of government,’ ..., and using a judicial forum to reconsider its wisdom would be anathema to the Separation of Powers. Undertaking a counterfactual inquiry into how the political branches would have exercised their discretion had they known the facts alleged in the Plaintiffs’ complaint would be to make a political judgment, not a legal one.”

“Moreover, [Baker v. Carr, 369 U.S. 186 (1962)]’s prudential considerations counsel judicial restraint as well. First, the court lacks judicially manageable standards to adjudicate whether the attack on the El‑Shifa plant was ‘mistaken and not justified.’ See Baker, supra at 217. ... We could not decide this question without first fashioning out of whole cloth some standard for when military action is justified. The judiciary lacks the capacity for such a task. As we once said of a claim that certain covert operations were ‘wrongful,’ ‘There are no [judicially] discoverable and manageable standards for the resolution of such a claim.’ ...”

“Second, the decision to take military action is a ‘policy determination of a kind clearly for nonjudicial discretion.’ Baker, id.. Such foreign policy decisions are ‘delicate, complex, and involve large elements of prophecy. . . . They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility . . . .’ ... In short, the decision to launch the military attack on the El‑Shifa plant was constitutionally committed to the political branches, see, e.g., U.S. CONST. art. I, § 8, cl. 11; id. art. II, § 2, cl. 1 ... and this court is neither an effective nor appropriate forum for reweighing its merits. ... Because the plaintiffs’ law‑of‑nations claim requires the court to second‑guess that decision, we conclude that it presents a nonjusticiable political question.” [...]

“In refusing to declare the El‑Shifa attack ‘mistaken and not justified,’ we do not mean to imply that the contrary is true. We simply decline to answer a question outside the scope of our authority. By requiring that we reserve judgment, the Political Question doctrine protects the Congress and the Executive from judicial ‘invasion of their sphere,’ ... and guards against ‘the reputation of the Judicial Branch [being] ‘borrowed by the political branches to cloak their work in the neutral colors of judicial action,’ ...”

The Court then turns to the defamation claims. The Plaintiffs argue that U.S. government officials defamed them by linking them to bin Laden and international terrorism. This claim also would require the Court to consider the merits of the U.S.’s decision to attack the plant.

“The Plaintiffs maintain, however, that even if the Political Question doctrine bars review of the President’s initial justifications for the attack, the court may nevertheless judge the veracity of the subsequent justifications, which, they allege, offer different explanations for the strike. These allegedly defamatory statements are reviewable, the Plaintiffs contend, because they do not state ‘the actual justification for the decision to attack the plant.’ Rather, the Plaintiffs allege that these statements are ‘post hoc pretext’—defamatory efforts at political damage control. ... According to the Plaintiffs, we can review these later justifications for the attack because they bear no relation to the President’s initial justifications—that the plant was associated with bin Laden and involved in producing chemical weapons.”

“We disagree. The allegedly defamatory statements cannot be severed from the initial justifications for the attack. The court cannot adjudicate the truth of the government’s later justifications because, despite the Plaintiffs’ arguments to the contrary, they are fundamentally the same as the initial justifications. In reaching this conclusion, we need look no further than the Plaintiffs’ complaint. Taking all of its allegations as true, we find no material difference between the allegedly defamatory statements and the President’s contemporaneous explanation of his decision to take military action. On the day the United States destroyed the El‑Shifa plant, President Clinton told the American people that he ordered the strike in part because the plant was ‘associated with the bin Laden network’ and was a ‘chemical weapons related facility.’ Complaint at 7, 13; see also Address to the Nation, 2 PUB. PAPERS at 1461 ...”

“All of the allegedly defamatory statements essentially repeat the President’s initial justification for the strike. Each describes a connection between bin Laden and the plant through its owner, Salah Idris. For example, ‘U.S. intelligence officials’ stated [that] Mr. Idris dealt financially with members of Islamic Jihad, which had been ‘absorbed into [bin Laden’s] terror network.’ ... And government officials claimed ‘the owner and manager of the plant were . . . front men for bin Laden.’ ... Contrary to the Plaintiffs’ contentions, these statements do not represent a break from the President’s contemporaneous explanation of his reasons for launching the strike. At most, they elaborate upon the nature of the connection between the plant and bin Laden—a connection the President offered on the day of the attack as one reason for taking military action. Declaring these later statements true or false would require us to make the same judgment about the President’s initial justification for the attack.”

“The Plaintiffs contend that Idris’s alleged ties to bin Laden—the factual issue at the heart of their defamation claim—could not have played any part in the decision to bomb the plant because, at the time of the strike, the United States thought the plant was owned by the Sudanese government and not by Idris. Therefore, they argue, the court could declare the government’s allegations that Idris was connected to bin Laden false without undermining the government’s actual justifications for the attack. ...”

“To be sure, at least one anonymous official had previously suggested [that] the plant belonged to the Sudanese Military Industrial Complex. ... But this is beside the point. As the Plaintiffs conceded before the en banc court, ‘[T]he owner of the plant was immaterial to [President Clinton’s] decision to attack the plant.’ ... The President explained that the United States targeted the plant because it was associated with bin Laden, and officials continued to assert that same rationale when they told reporters the plant’s owner was financially linked to bin Laden’s network. A court’s pronouncement that the plant’s owner had no financial ties to bin Laden would directly contradict the government’s justification for the attack by disclaiming the asserted association between the plant and the bin Laden network.” [Slip op. 19‑22]

In essence, the Plaintiffs are challenging the wisdom of U.S. military action. Such inquiry is barred by the Political Question doctrine. The Court therefore affirms the dismissal.

Judges Ginsburg and Rogers concur. They opine, however, that the Court is unduly expanding the political question doctrine beyond Baker v. Carr. “Under the Court’s new political decision doctrine, however, even a straightforward statutory case, presenting a purely legal question, is non‑justiciable if deciding it could merely reflect adversely upon a decision constitutionally committed to the President. ¼ As Judge Kavanaugh notes, such a holding ‘sub silentio expand[s] executive power [at the expense of the legislature].’ Op. at 11. The result of staying the judicial hand is to upset rather than to preserve the constitutional allocation of powers between the executive and the legislature.” [Slip op. 29‑30]

Judge Kavanaugh and Chief Judge Sentelle concur, with Judges Ginsburg and Rogers concurring in the judgment. First, there is no cause of action for defamation against the U.S. As for Plaintiffs’ second argument, they cite no authority that international law provides redress for mistaken destruction of property during extraterritorial, war‑related activities.

Plaintiffs two claims should be dismissed because they are insubstantial, implausible, and devoid of merit. This approach alone would resolve the matter at bar. The majority, however, delves into the murky waters of the political question doctrine.

“In short, the question whether a statute intrudes on the Executive’s exclusive, preclusive Article II authority must be confronted directly through careful analysis of Article II—not answered by backdoor use of the political question doctrine, which may sub silentio expand executive power in an indirect, haphazard, and unprincipled manner. It is particularly important to confront the question directly because of the significance of such questions to our constitutional separation of powers. As Justice Jackson rightly explained, any claim of exclusive, preclusive Executive authority—particularly in the national security arena—‘must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.’ Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 638 (1952) (Jackson, J., concurring).” [Slip op. 41]

[The case over the bombing of a pharmaceutical factory in Sudan has been pending in various courts for years. See, e.g. 2005 International Law Update 124; 2009 International Law Update 30.]

Citation: El‑Shifa Pharmaceutical Industries Company v. United States, No. 07‑5174 (D.C. Cir. June 8, 2010).

SOVEREIGN IMMUNITY

In case of alleged torture and murder in Somalia, U.S. Supreme Court holds that Foreign Sovereign Immunities Act (FSIA) does not govern an individual’s claim of immunity

The Respondents in the following case are members of the Somali Isaaq clan, who suffered persecution and torture during the 1980s military regime in their homeland. Petitioner Mohamed Ali Samantar was Somalia’s First Vice President and Minister of Defense, and later the Prime Minister. He now resides in Fairfax, Virginia.

The Respondents sued Samantar in the U.S. District Court for the Eastern District of Virginia, pursuant to the Torture Victim Protection Act of 1991, 106 Stat. 73, note following 28 U.S.C. Section 1350 (TVPA), and the Alien Tort Claims Act , 28 U.S.C. Section 1350 (ACTA). According to the Complaint, Samantar exercised command control over the Somali military forces who committed the acts.

The District Court concluded that it lacked subject‑matter jurisdiction and dismissed the case. The U.S. Court of Appeals for the Fourth Circuit reversed and remanded for a determination of whether Petitioner is entitled to immunity. The Supreme Court granted certiorari and holds that the Foreign Sovereign Immunities Act of 1976 (FSIA or Act), 28 U.S.C. Sections 1330, 1602, does not govern the determination of Petitioner’s immunity from suit.

The Court then summarizes the relevant law. “The FSIA provides that ‘a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States’ except as provided in the Act. § 1604. Thus, if a defendant is a ‘foreign state’ within the meaning of the Act, then the defendant is immune from jurisdiction unless one of the exceptions in the Act applies. See §§ 1605‑1607 (enumerating exceptions). The Act, if it applies, is the ‘sole basis for obtaining jurisdiction over a foreign state in federal court.’ Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 439 ¼ (1989). The question we face in this case is whether an individual sued for conduct undertaken in his official capacity is a ‘foreign state’ within the meaning of the Act.”

“The Act defines ‘foreign state’ in § 1603 as follows:‘(a) A `foreign state’ ... includes a political subdivision of a foreign state or an agency or instrumentality of a foreign state as defined in subsection (b). ‘(b) An `agency or instrumentality of a foreign state’ means any entity—‘(1) which is a separate legal person, corporate or otherwise, and ‘(2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof, and ‘(3) which is neither a citizen of a State of the United States as defined in section 1332(c) and (e) of this title, nor created under the laws of any third country.’”

“The term ‘foreign state’ on its face indicates a body politic that governs a particular territory. See, e.g., Restatement of Foreign Relations Law § 4 (defining ‘state’ as ‘an entity that has a defined territory and population under the control of a government and that engages in foreign relations’). In § 1603(a), however, the Act establishes that ‘foreign state’ has a broader meaning, by mandating the inclusion of the state’s political subdivisions, agencies, and instrumentalities. Then, in § 1603(b), the Act specifically delimits what counts as an agency or instrumentality. Petitioner argues that either ‘foreign state,’ § 1603(a), or ‘agency or instrumentality,’ § 1603(b), could be read to include a foreign official. Although we agree that Petitioner’s interpretation is literally possible, our analysis of the entire statutory text persuades us that Petitioner’s reading is not the meaning that Congress enacted.” [2285‑6]

The Court then analyzes the term “agency or instrumentality of a foreign state” (§ 1603(b)). While an individual official could be an “agency or instrumentality,” Congress specifically defined “agency or instrumentality” in the FSIA. The wording indicates that it should be narrowly interpreted. The term “agency or instrumentality” generally refers to an organization rather than an individual. It is awkward to refer to an individual as the “agency or instrumentality” or “organ” of a foreign state. Also, an individual cannot be a citizen of a State “as defined in section 1332(c) and (e),” as those sub‑sections refer to corporations and estates. In sum, there is no indication that Congress intended to include individual officials within the meaning of “agency or instrumentality.”

Reading the FSIA as a whole, nothing suggests that a “foreign state” in Section 1603(a) includes an official acting on behalf of the foreign state. The Court’s review of the text, purpose and history of the FSIA shows that the FSIA does not govern an individual’s claim of immunity. Thus, the Court of Appeals is affirmed, and Petitioner’s immunity under common law and any other defenses will be addressed by the District Court upon remand.

Justice Alito concurs, but notes that the Court’s citations to the FSIA legislative history are of little value. Justice Thomas concurs, but notes that the Court’s textual analysis is sufficient to resolve the case. Justice Scalia concurs, but notes that the Court’s use of the legislative history needlessly injects a mode of analysis that not all Justices consider valid.

Citation: Samantar v. Yousuf, 130 S. Ct. 2278 (2010). See also The Washington Post, June 2, 2010, page A5.