American Jewish organizations that fought to establish the jurisdiction of U.S. courts for suits against terrorist groups are taking an opposite tack in suits involving human rights abuses.
Jewish groups have filed briefs siding with a former Somali official now living in Virginia who is alleged to bear responsibility for atrocities committed during his tenure.
The case’s outcome is expected to set a precedent on the vulnerability to human rights lawsuits of former and present officials of internationally recognized governments. But supporters of Israel fear the result could enable Palestinians who claim to be victims of Israel to pursue Israeli officials here.
The Supreme Court will hear oral arguments March 3 in the case of Yousuf v. Samantar, in which a group of Somalis is seeking financial damages from Mohamed Ali Samantar, Somalia’s former defense minister. He also served as prime minister from 1987 to 1990. Samantar was a top official in the regime of President Siad Barre, a socialist-leaning dictatorship that was denounced by international groups for its systematic use of torture and arbitrary arrests, and for the rape and murder of political rivals and dissidents.
Among the five Somalis suing Samantar are a student who was allegedly detained and raped 15 times by a military man, a former officer who alleges he survived a mass execution and a businessman who claims he was tortured for months by the regime Samantar helped lead. Two of the plaintiffs are now American citizens. The case was filed under the Torture Victim Protection Act.
The Supreme Court will rule on the plaintiffs’ right to pursue a civil lawsuit against Samantar. Pro-Israel activists, fearing a precedent that will allow others to pursue legal action against Israel for alleged war crimes — as has happened in Europe — have filed briefs opposing their suit.
“There will be a rash of lawsuits of this kind against Israel” if the court rules for the plaintiffs, warned Alyza Lewin, an attorney with the firm of Lewin & Lewin, which has filed a friend-of-the-court brief in favor of Samantar and against making foreign officials vulnerable to civil lawsuits. The brief was filed on behalf of four Jewish groups: the Zionist Organization of America, the Union of Orthodox Jewish Congregations of America, Agudath Israel of America, and the American Association of Jewish Lawyers and Jurists.
It is an unusual setting, one in which pro-Israel activists are siding with the Saudi government — which has also filed a brief on behalf of Samantar — while pitting themselves against international human-rights advocates. Furthermore, this battle also puts the Jewish community on the side of those seeking to limit international jurisdiction after years of fighting to broaden the ability to sue foreign entities in order to go after terror groups and their sponsoring states.
Samantar moved to dismiss the 2004 lawsuit on grounds of immunity provided under the Foreign Sovereign Immunities Act, which protects foreign governments in most cases from legal action in the United States. But in January 2009, the Fourth Circuit Court of Appeals reinstated the case, ruling that this immunity applies not to individuals but only to governments and their agencies. A Washington circuit court had previously reached the opposite conclusion. The Supreme Court’s ruling is expected to resolve the dueling decisions.
For Jewish communal officials, the Samantar case set off alarm bells. The Jewish groups that filed the brief cite more than 1,000 cases of lawsuits against Israeli officials around the world as part of an effort that Israeli leaders dub “lawfare” — a campaign to take Arab human-rights grievances against Israel to international courtrooms.
One of those recent cases was the December attempt to issue a criminal arrest warrant in Britain against Israeli opposition leader Tzipi Livni because of the role she played as foreign minister during last January’s Israeli military operation in Gaza.
In the United States, the law does not allow citizens to file similar criminal lawsuits against foreign officials. But in civil suits, it is an unsettled question whether the Foreign Sovereign Immunities Act, which protects governments, extends to individual government officials and former government officials who were acting in their authorized capacities at the time in question.
Lewin, of the law firm representing the four Jewish groups, says it should. “It would be tempting for us to say, wouldn’t it be nice to sue government officials in these cases, but the risks and the costs outweigh the benefits,” she said.
“You’d have the entire Middle East conflict here in the U.S.” if Samantar won, agreed Marc Stern, co-executive director of the American Jewish Congress. Stern, who also filed a brief on this issue, claimed that allowing civil suits would “require Israelis to recount in an American court years after the event why every rocket was fired and why each attack took place.”
A couple of Israeli officials already faced this threat in the United States.
In 2005, former chief of staff and current Cabinet minister Moshe Ya’alon was served with a civil suit while entering a Washington think tank he was attending as a visiting scholar, filed by families of victims from a 1996 Israeli shelling in Lebanon. A week earlier, Avi Dichter, former head of Israel’s General Security Service, had the same experience in New York. This lawsuit was on behalf of victims of an Israeli bombing in Gaza.
These lawsuits cannot lead to arrests, but they can cause significant financial liabilities to Israelis and eventually deter Israeli officials from visiting America, pro-Israel activists say.
Fighting to maintain immunity for foreign officials seems to place Jewish activists far from positions they have taken in the past. Supporters of Israel actively backed legislation that paved the way for relatives of terror victims to sue terror organizations and their sponsors in American courts. Over the years, these lawsuits have yielded several rulings against Hamas, Fatah and Iran for compensation reaching hundreds of millions of dollars.
Unlike the laws governing human-rights suits, the law empowering individuals to file civil suits against terror organizations and their state sponsors is specifically exempted from the Foreign Sovereign Immunities Act. But the terrorism law — also unlike the human-rights laws — clearly disallows suits against individuals.
The Anti-Defamation League, in a separate friend-of-the-court brief filed in the Samantar case, differed with the position taken by the AJCongress and the groups represented by Lewin. The ADL brief spoke of the need to strike a balance between the allowance of victims of severe human-rights violations overseas to seek remedy in American courts, and the need to “protect the ability of lower courts to dismiss meritless claims brought for political or other improper purposes.”
The Samantar case made some strange bedfellows in fighting to limit the scope of lawsuits against foreigners. Alongside the former Somali politician were not only the pro-Israel activists, but also the kingdom of Saudi Arabia. A brief filed by the Saudis reflects concerns similar to those of pro-Israel advocates — that this case could lead to an outpouring of lawsuits against former and current government officials. Citing numerous suits filed against Saudi Arabia after the 9/11 terror attacks, the brief states the kingdom’s “unique experience” and “strong interest” in the outcome of the case.
On the other side are human- rights groups, led by the Center for Justice & Accountability, representing the Somali citizens suing Samantar. “This case stands for the proposition that the U.S. cannot be a safe haven for human-rights abusers like Samantar,” said Pamela Merchant, the group’s executive director, “and we are confident that the Supreme Court will not allow U.S. law to be manipulated to undermine this principle.”
Both sides are waiting for the American government’s brief to be filed. While previous administrations have opposed expanding the ability to sue foreigners in the United States, senior Obama administration officials were supportive of this notion in their previous capacities.
Contact Nathan Guttman at firstname.lastname@example.org
Nathan Guttman staff writer, is the Forward’s Washington bureau chief. He joined the staff in 2006 after serving for five years as Washington correspondent for the Israeli dailies Ha’aretz and The Jerusalem Post. In Israel, he was the features editor for Ha’aretz and chief editor of Channel 1 TV evening news. He was born in Canada and grew up in Israel. He is a graduate of the Hebrew University of Jerusalem. Contact Nathan at email@example.com, or follow him on Twitter @nathanguttman