Thursday, January 22, 2009
There are a couple of interesting cases involving interpretations of the Foriegn Sovereign Immunities Act (FSIA), 28 U.S.C. sec. 1605, working their way through U.S. Courts.
Earlier this month, the U.S. Supreme Court accepted cert in Republic of Iraq v. Beaty, Docket No. 07-1090, in which Iraq seeks to overturn a judgment against it obtained by U.S. citizens seeking damages for emotional distress they suffered during the time when their fathers were held hostage by the former Iraqi regime under Saddam Hussein in the 1990s. Iraq claims that it enjoys foreign sovereign immunity, but the U.S. District and Circuit Courts determined that its sovereign immunity had been waived or abrogated under the state-sponsored terrorism exception to FSIA. Briefing in the case should be completed by March, with oral argument to be scheduled sometime thereafter.
In a second recent FSIA decision from a U.S. Court of Appeals, the Fourth Circuit adopted the minority view that FSIA does not immunize foreign officials from lawsuits in this country. In Yousef v. Samantar, Docket No. 07-1893, natives of Somalia brought suit under the Alien Tort Statute and the Torture Victims Protection Act alleging that Mohamed Ali Samantar, the former minister of defense from 1980-1986 and prime minister from 1987-1990, knew or should have known about and tacitly approved the Somali government's acts of torture and murder against them or their family members. Samantar claimed immunity under FSIA. The Fourth Circuit sided with the Seventh Circuit in finding that individual foreign officials do not fall within the definition of an "agency or instrumentality of a foreign state" entitled to immunity under FSIA. The Court held that the statutory language contemplates a political body or a corporate entity, not an individual. Moreover, even if the FSIA does apply to individual defendants, the Court held that it would not shield former government officials such as Samantar. At least four other circuits have taken the opposition position, making this case a good candidate for review by the U.S. Supreme Court.