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Pamela Merchant

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It's Official: The U.S. Is Not a Safe Haven for Human Rights Abusers

Posted: 06/18/10 01:48 PM ET

This month, in one of the most significant human rights cases to be heard by the Supreme Court in years, the Court unanimously ruled that former foreign government officials who come to the U.S. and avail themselves of the benefits of living here are not immune from suit under the Foreign Sovereign Immunities Act.

The Court's ruling in Samantar v. Yousuf means that former foreign officials who have committed egregious human rights abuses, such as torture and extrajudicial killing, can be held accountable for their crimes and will not be able to find comfort and sanctuary in the U.S. In an era in which the Court has often moved to curtail plaintiffs' access to courts, the Court's unanimous ruling is truly noteworthy. The Court's decision assures that U.S. courts will remain open to survivors of human rights abuses and that the U.S. can continue to serve as a leader in the protection and promotion of human rights and individual dignity.

The Supreme Court's decision is the latest development in a case originally filed in 2004 by the Center for Justice and Accountability (CJA), a non-profit legal human rights organization based in San Francisco, California. CJA filed a lawsuit under the Torture Victim Protection Act (TVPA) and the Alien Tort Statute (ATS) on behalf of five plaintiffs who were tortured or whose family members were killed under the command of former defense minister of Somalia, Mohamed Ali Samantar. It is undisputed that Mr. Samantar presided over a brutal campaign of violence in which at least 50,000 civilians were killed or tortured. Despite his past, Mr. Samantar has lived comfortably in a Fairfax, Virginia suburb -- just a stone's throw away from the steps of the highest court in the land -- for over a decade.

Mr. Samantar's presence in the U.S. landed him at the heart of a debate pitting accountability against impunity. In this case, Mr. Samantar had attempted to evade responsibility for his actions by claiming immunity under the Foreign Sovereign Immunities Act (FSIA) of 1976. Mr. Samantar's claim of immunity relied on an inventive, but flawed, reading of the FSIA. Lawyers for Mr. Samantar argued that because he was acting on behalf of the government, he was entitled to the same immunity that the government of Somalia (if there were a recognized and functioning government) would enjoy. His argument ran counter to well-settled precedents dating back to the postwar Nuremburg trials and the guiding principle that individuals can and must be held liable for egregious human rights violations. His position would also have undermined decades of U.S. jurisprudence on human rights law and recent U.S. efforts to secure accountability for those crimes.

The plaintiffs, by contrast, joined by a diverse and broad group of supporters including former American diplomats, retired military professionals, Holocaust survivors, anti-genocide activists, and members of the U.S. Senate and House of Representatives, argued that the FSIA could not be interpreted in a way that would afford immunity to individual human rights abusers. Various amici argued, for example, that human rights abuses are threats to both international security and our national interests, noting that the U.S. commitment to internationally-recognized human rights is critical to our diplomatic and military strength. Moreover, plaintiffs asserted that when Congress passed the TVPA, it explicitly determined that the law was a necessary deterrent to human rights abusers seeking safe haven in the U.S.

The Court, faced with a choice between upholding accountability or permitting impunity -- an impunity unsupported by either morality or law -- concluded that U.S. law provides for and demands accountability. Now, Mr. Samantar and other former officials who commit human rights abuses will not be able to hide behind a shield of FSIA immunity. Mr. Samantar will be forced to account for his past crimes. And the plaintiffs who have been pursuing him will finally have their day in Court -- and an opportunity for justice.