By Haggai Carmon

The ADL submitted a friend-of-the-court brief to the U.S. Supreme Court this month, in which the group asks the Court to be careful when deciding the parameters within which victims of torture abroad can sue their torturers in U.S. courts.

The brief was prompted by Samantar v. Bashe Abdi Yousuf, et al., in which a group of Somalis now living in the United States are seeking reparations in a torture case. They were allegedly tortured by soldiers who were taking their orders from a former Somali government official. The official has claimed immunity under the U.S. Foreign Sovereign Immunities Act.

Although ADL is very clear that “[v]ictims of torture or genocide should unquestionably have access to U.S. courts to pursue justice against their oppressors,” National Director Abraham H. Foxman adds: “We must be cautious, however, that such access does not translate into an open invitation to abuse our court system for political purposes. The Supreme Court must ensure that suits of this nature are judged on their individual merit, while retaining safeguards designed to prevent political manipulation.”

The brief filed by the ADL recognizes that the U.S., as per the norms of international law, should not provide immunity to officials and countries accused of torture and genocide: “because the observance of jus cogens is so universally recognized as vital to the functioning of a community of nations, every nation must (by definition) waive its traditional sovereign immunity for violating such fundamental standards ‘[by] the very fact that it is a state.’”

However, it also asks the Court not to overlook or override doctrines and principles already in place to ensure that such lawsuits do not become the tools of international politics. In instances where legitimate governments and officials are brought to U.S. courts for political purposes, the ADL wants to ensure that case dismissal remains a real option, such as in the cases of unjusticiable political questions, failure to establish a recognized basis for liability, proper defendants, forum non conveniens, an exceeded statute of limitations, etc.

The brief concludes: “Regardless of how the Court decides the question presented, it should maintain the effectiveness of the Alien Tort Statute and the Torture Victims Protection Act of 1991, as previously construed by this Court, in providing justice, and genuine remedies, for those harmed by torture or violations of fundamental human rights abuses while, at the same time, protect the ability of lower courts to dismiss meritless claims brought for political or other improper purposes.”

By Haggai Carmon

In June of 2009, legislation was introduced in Canada that would, if passed, create a terrorism exception to the country’s foreign sovereign immunity act. That is – it would allow victims of terrorism to sue in a Canadian civil court countries appearing on a pre-designated ‘state sponsor of terrorism’ list. On November 26, Liberal MP Irwin Cotler introduced a private member’s bill that hones in on allowing victims of torture to bring suit against the countries and officials responsible for violating their human rights.

Canadian victims of torture who have attempted in past to sue their former captors have been unsuccessful, Canadian courts always making reference to the State Immunity Act that currently only offers an exception for commercial wrongdoing, such as the breach of a contract.

The new bill would allow Canadian victims of torture, crimes against humanity and genocidal governments to sue their torturers in Canadian civil courts.

Private bills do not typically pass into law, but this one does have support from both parties in the House of Commons, as well as the support of human rights activists, who believe such an amendment to the State Immunity Act should have been made long ago.

In Canada, criminal charges can be made in the case of torture and crimes against humanity, as per the Crimes Against Humanity and War Crimes Act of 2000, but civilly Canadians cannot as yet seek redress against foreign entities in their home country.

Despite June’s terrorism exception bill, the issue of torture needed to be addressed separately, believed Cotler.

By Haggai Carmon

Charged in Spain with committing crimes of torture and genocide in China, five top CCP officials have been given 4-6 weeks to respond to the indictment issued in mid-November. A failure to respond means the five could face extradition if they travel to a country that has an extradition treaty with Spain.

The decision was taken under the legal principle of universal jurisdiction, which allows domestic courts to hear cases of genocide and crimes against humanity regardless of where they occur.

One of the defendants, former leader of the CCP Jiang Zemin, is widely known to have started the campaign of violence intended to eliminate practitioners of the spiritual practice called Falun Gong. Once practiced by 100 million people in China, Falun Gong is a traditional Chinese spiritual discipline that the CCP originally supported as a promoter of health and social harmony.

When the Party changed its mind and declared the practice illegal, violent persecution of practitioners began, amounting to severe human rights violations including torture and genocide.

In Spain, the attorney Carlos Iglesias of the Human Rights Law Foundation (HRLF) has been trying to bring justice to those who instigated and carried out the violence against the Falun Gong. Two years of investigation led the Spanish National Court Judge Ismael Moreno to indict.

According to the notice issued by the court, the defendants face up to 20 years in prison and may be responsible for financial reparations to the victims.

Attorney Iglesias has remarked: “When one carries out the crime of genocide or torture, it is a crime against the international community as a whole and not only against Chinese citizens. Spain is emerging as a defender of human rights and universal justice.”