Enahoro, Anthony v. Abubakar, Abdulsalam

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3089
CHIEF ANTHONY ENAHORO, DR. ARTHUR
NWANKWO, FEMI ABORISADE, OWENS WIWA,
C.D. DOE, CHIEF GANI FAWEHINMI, and HAFSAT
ABIOLA, individually and on behalf of the estate
of her deceased father CHIEF M.K.O. ABIOLA,
Plaintiffs-Appellees,
v.
GENERAL ABDULSALAMI ABUBAKAR,
Defendant-Appellant.
____________
Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 02 C 6093—Matthew F. Kennelly, Judge.
____________
ARGUED JANUARY 10, 2005—DECIDED MAY 23, 2005
____________
Before CUDAHY, KANNE, and EVANS, Circuit Judges.
EVANS, Circuit Judge. A courtroom in Chicago, one would
think, is an unlikely place for considering a case involving
seven Nigerian citizens suing an eighth Nigerian for acts
committed in Nigeria. It sounds like the sort of fare that
would be heard in a courtroom on the African continent.
But this case ended up in Chicago, and that leads us to
2 No. 03-3089
consider the claims of seven Nigerian citizens against a
Nigerian general over alleged torture and murder in
Nigeria. The path the plaintiffs are pursuing is, as we shall
see, quite thorny.
The plaintiffs make allegations of torture and killing
at the hands of the military junta that ruled Nigeria
from November 1993 until May 1999. The defendant,
General Abdulsalami Abubakar, was a member of the junta
and was Nigeria’s head of state for the last year of the
junta’s reign. Alleging that he was behind the atrocities, the
plaintiffs sued General Abubakar and claimed that the
United States district court had jurisdiction under 28
U.S.C. §§ 1331 and 1350. The district court considered
motions for dismissal and for summary judgment. The spe-
cific issue which gives rise to this interlocutory appeal is the
decision that the Foreign Sovereign Immunity Act of 1976
(FSIA), 28 U.S.C. §§ 1602 et seq., does not apply to in-
dividuals and thus General Abubakar is not immune from
suit. The court determined, however, that General Abubakar
is entitled to common law immunity for the year that he was
head of state. Plaintiffs do not contest the latter finding.
The facts as we recite them come mainly from the plain-
tiffs’ claims which, at this stage of the suit, we accept as
true. The situation in Nigeria at the time of these events
was unstable. On December 31, 1983, General Muhammed
Buhari staged a military coup that overthrew Nigeria’s
democratically elected president and set off a series of coups
and forced abdications. A number of military rulers were
overthrown, one after another, and in June 9, 1998, defen-
dant Abubakar assumed control of the regime following the
sudden death of General Sani Abacha. Finally, a presiden-
tial election was held, and in May 1999, Nigeria had its first
elected civilian president in 15 years.
During the various military regimes between 1983 and
1999, the highest governmental body was the Provisional
Ruling Council (PRC). It was composed of military officials
No. 03-3089 3
and a few civilians; whoever was the current military ruler
was the chairman of the PRC. According to the complaint,
the PRC ruled by decree and curtailed civil liberties. During
this time, Abubakar occupied the third highest military and
political position in Nigeria.
Plaintiff Hafsat Abiola is the daughter of Nigerian pro-
democracy activists; she claims that Abubakar is responsi-
ble for the deaths of her parents. Her father, M.K.O. Abiola,
in fact, was a candidate for president in 1993. Plaintiff
Abiola contends that the early election returns showed that
her father won the vote, but the military regime nullified
the election, leading to violent clashes between miliary
forces and civilians. M.K.O. Abiola unsuccessfully chal-
lenged the election’s nullification through the Nigerian
court system and sought Nigerian and international support
for the recognition of the election results. In June 1994,
M.K.O. Abiola declared himself the president of Nigeria. He
was promptly arrested and charged with treason. According
to the complaint, he was kept in prison under inhumane
conditions, was tortured, and denied access to lawyers,
doctors, and his family. He died in prison in July 1998,
shortly after General Abubakar assumed control of the
military regime.
Plaintiff Abiola’s mother, Alhaja Kudirat Abiola, was also
a pro-democracy activist. After her husband was imprisoned
she began a campaign to free him and continued a call for
the democratization of Nigeria. The complaint alleges that
she received menacing telephone calls warning her of the
consequences of continuing to demand the release of her
husband. In June 1996, she was murdered in broad daylight
in her car on the streets of Lagos City. She had been shot
multiple times.
Plaintiff Anthony Enahoro is a political activist who played
a leading role in Nigeria’s independence from Great Britain
in 1960. In 1994, when he was 70 years old, he was arrested
4 No. 03-3089
and imprisoned by the junta for 4 months. During his
detention he was not provided medical treatment even
though he was a diabetic. Plaintiff Arthur Nwankwo, an-
other political activist, was arrested in June 1998. He
claims he was stripped naked, flogged, and taken away in
the trunk of a car. He also was denied medical treatment
for the 2 months he was in custody.
Based on these allegations, the complaint states seven
claims: torture; arbitrary detention; cruel, inhuman and de-
grading treatment; false imprisonment; assault and battery;
intentional infliction of emotional distress; and wrongful
death.
As we said, General Abubakar appeals from the denial of
immunity under the FSIA. The preliminary issue is
whether we have appellate jurisdiction over the appeal. We
conclude that we do.
We stated in Rush-Presbyterian-St.Luke’s Medical Center
v. The Hellenic Republic, 877 F.2d 574, 576 n.2 (7th Cir.
1989):
Since sovereign immunity is an immunity from trial
and the attendant burdens of litigation, and not just a
defense to liability on the merits, the denial of a claim
of sovereign immunity is an immediately appealable
interlocutory order under the “collateral order doctrine”
of Cohen v. Beneficial Industrial Loan Corp., 337 U.S.
541, 545-47, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528(1949). See Compania Mexicana de Aviacion, S.A. v.
United States Dist. Court, 859 F.2d 1354, 1358 (9th Cir.
1988) (per curiam); Segni v. Commercial Office of Spain,
816 F.2d 344, 347 (7th Cir. 1987).
Our is not an isolated opinion. See S & Davis Int’l, Inc. v.
The Republic of Yemen, 218 F.3d 1292 (11th Cir. 2000); In
re Republic of Philippines, 309 F.3d 1143 (9th Cir. 2002);
Jungquist v. Sheikh Sultan Bin Khalifa Al Nahyan, 115 F.3d
1020 (D.C. Cir. 1997). That said, we turn to the appeal.
No. 03-3089 5
General Abubakar contends that he has immunity for
official conduct taken while he was a Nigerian public official
and a member of the ruling council. Underlying his argu-
ment is his contention that the FSIA applies to individuals
in government, not just foreign governments and agencies.
The historical underpinnings of the FSIA go back almost
200 years. In Schooner Exchange v. McFaddon, 11 U.S.
(7 Cranch) 116 (1812), the Supreme Court recognized the
immunity of foreign sovereigns from suits brought in the
courts of the United States. Justice Marshall said that “as
a matter of comity, members of the international commu-
nity had implicitly agreed to waive the exercise of jurisdic-
tion over other sovereigns in certain classes of cases, such
as those involving foreign ministers or the person of the
sovereign.” Republic of Austria v. Altmann, 541 U.S. 677(2004) (quoting McFaddon, 11 U.S. at 136). For the next
165 years, the executive branch decided whether a foreign
nation was entitled to immunity. The usual procedure was
that the State Department would provide the court with a
“suggestion of immunity” and the court would dismiss the
suit. See 15 Moore’s Federal Practice, § 104.02 (Matthew
Bender 3d ed.).
But in 1952, the State Department adopted what has
become known as the “restrictive theory” of sovereign im-
munity. Verlinden B. V. v. Central Bank of Nigeria, 461
U.S. 480 (1983). Under this theory, immunity is limited to
suits involving the sovereign’s public acts and does not ex-
tend to cases arising out of strictly commercial actions.
In 1976, Congress got into the act, passing the FSIA.
Under the FSIA, a foreign state is “presumptively immune
from the jurisdiction of United States courts . . . .”
Saudi Arabia v. Nelson, 507 U.S. 349, 355 (1993). That
immunity exists unless one of the statutory exceptions to
immunity applies. See 28 U.S.C. §§ 1605 & 1607. Ironically,
however, the FSIA is also the sole basis for jurisdiction over
6 No. 03-3089
a foreign state. Title 28 U.S.C. §§ 1604 and 1330(a) work
together. Section 1330 confers jurisdiction when the state
is not entitled to immunity under one of the exceptions in
the FSIA. Argentine Republic v. Amerada Hess Shipping
Corp., 488 U.S. 428, 434 (1989).
In this case, no one contends that an exception to im-
munity applies. If Abubakar is covered by the FSIA, he is
immune; no exception is relevant; and the suit would have
to be dismissed. Therefore, the only issue is whether the
statute applies to individuals, who are connected with the
government, as opposed to the state itself and its agencies.
We have recently looked at a similar question. Ye v. Zemin,
383 F.3d 620 (7th Cir. 2004), involved a head of state, and
we concluded that the FSIA did not apply to heads of state:
“The FSIA defines a foreign state to include a political
subdivision, agency or instrumentality of a foreign state but
makes no mention of heads of state.” Ye, 383 F.3d at 625.
We noted that the FSIA did not seem to subscribe to Louis
XIV’s not-so-modest view that “L’etat, c’est moi.” How much
less, then, could the statute apply to persons, like
General Abubakar, when he was simply a member of a com-
mittee, even if, as seems likely, a committee that ran the
country?
The language of the Act supports our conclusion. The over-
riding concern of the Act, as set out in 28 U.S.C. § 1602, is
allowing judgments against foreign sovereigns “in connec-
tion with their commercial activities.” The statute was passed
so immunity determinations in such contexts would be made
“by courts of the United States and of the States . . .”, not by
the executive branch of the government. Section 1604
provides that a “foreign state” is immune unless certain ex-
ceptions apply. Under § 1603(a), a foreign state includes “a
political subdivision of a foreign state or an agency or
instrumentality of a foreign state . . . .” In turn,
(b) [a]n “agency or instrumentality of a foreign state”
means any entity—(1) which is a separate legal per-
son, corporate or otherwise, and (2) which is an
No. 03-3089 7
organ of a foreign state or political subdivision
thereof, or a majority of whose shares or other own-
ership interest is owned by a foreign state or politi-
cal subdivision thereof, and (3) which is neither a
citizen of a State of the United States as defined in
section 1332(c) and (d) of this title nor created
under the laws of any third country.
The definition does not explicitly include individuals who
either head the government or participate in it at some high
level.
Abubakar argues, however, that “separate legal person”
must mean an individual. We suppose it could. But if it was
a natural person Congress intended to refer to, it is hard to
see why the phrase “separate legal person” would be used,
having as it does the ring of the familiar legal concept that
corporations are persons, which are subject to suit. Given
that the phrase “corporate or otherwise” follows on the heels
of “separate legal person,” we are convinced that the latter
phrase refers to a legal fiction—a business entity which is
a legal person. If Congress meant to include individuals
acting in the official capacity in the scope of the FSIA, it
would have done so in clear and unmistakable terms.
It is true, however, that this issue is a long way from
being settled. The FSIA has been applied to individuals, but
in those cases one thing is clear: the individual must have
been acting in his official capacity. If he is not, there is no
immunity. For instance, a Korean official being sued by a
personal family employee was not immune because he was
not acting within the scope of his official duties. Park v.
Shin, 313 F.3d 1138 (9th Cir. 2002).
That same court, though, in Chuidian v. Philippine
National Bank, 912 F.2d 1095, 1101 (9th Cir. 1990), looked
at the statute and concluded that its language—the terms
agency, instrumentality, organ, entity, and legal person—
“while perhaps more readily connoting an organization or
8 No. 03-3089
collective, do not in their typical legal usage necessarily
exclude individuals.” Because Congress did not exclude
individuals, the court concluded that if the individual was
acting in his official capacity, the FSIA was applicable. We
are troubled by this approach—that is, by saying Congress
did not exclude individuals; therefore they are included. Not
only does it seem upside down as a matter of logic, but it
ignores the traditional burden of proof on immunity issues
under the FSIA. The party claiming FSIA immunity bears
the initial burden of proof of establishing a prima facie case
that it satisfies the FSIA’s definition of a foreign state.
Then the burden of going forward shifts to the plaintiff to
produce evidence that the entity is not entitled to immu-
nity. The ultimate burden of proving immunity rests with
the foreign state. Int’l Ins. Co. v. Caja Nacional de Ahorro
y Seguro, 293 F.3d 392, 397 (7th Cir. 2002); Keller v.
Central Bank of Nigeria, 277 F.3d 811, 815 (6th Cir. 2002);
Virtual Countries, Inc. v. Republic of S. Africa, 300 F.3d
230, 241 (2nd Cir. 2002).
A case which is similar to the one before us is In re Estate
of Ferdinand E. Marcos Human Rights Litigation, 978 F.2d
493 (9th Cir. 1992). Archimedes Trajano, a student, went to
an open forum in the Philippines where Imee Marcos-
Manotoc—the daughter of Ferdinand Marcos, the former
Philippine President—was speaking. Trajano apparently
asked the wrong question at the forum and was kidnaped,
interrogated, and tortured to death by military intelligence
personnel who were acting in part under the authority of
Marcos-Manotoc. A wrongful death suit, filed in the United
States District Court for the District of Hawaii, followed,
and a preliminary question was whether Marcos-Manotoc
was entitled to immunity under the FSIA. Because Marcos-
Manotoc was in default, she was said to have admitted that
she acted on her own authority and not on the authority of
the Republic of the Philippines. Therefore, she was not
entitled to immunity. That also meant that there was also
No. 03-3089 9
no jurisdiction under the FSIA and that the Alien Tort
Statute (ATS) was the sole basis for jurisdiction in the case.
In our case, we conclude, based on the language of the
statute, that the FSIA does not apply to General Abubakar; it
is therefore also clear that the Act does not provide juris-
diction over the case. If General Abubakar were covered,
the FSIA would be the only basis for subject matter juris-
diction over him. As we indicated above, the Supreme Court
has said in Argentine Republic v. Amerada Hess Shipping
Corp., 488 U.S. 428, 434 (1989):
We think that the text and structure of the FSIA
demonstrate Congress’ intention that the FSIA be the
sole basis for obtaining jurisdiction over a foreign state
in our courts.
The corollary proposition in Argentine Republic is that the
Alien Tort Statute cannot provide jurisdiction over foreign
sovereigns but remains a jurisdictional basis for suits against
other defendants. And the ATS is, in fact, the basis on which
plaintiffs in our case claim jurisdiction.
Because we are obligated to consider our jurisdiction at
any stage of the proceedings, we now turn to the ATS as it
forms a basis for jurisdiction in this case. The ATS provides
that
[t]he district courts shall have original jurisdiction of
any civil action by an alien for a tort only, committed in
violation of the law of nations or a treaty of the United
States.
Our examination of the statute is particularly compelling at
this time because recently (after the district court issued its
decision in this case) the Supreme Court extensively
considered the ATS. Sosa v. Alvarez-Machain, 124 S. Ct.
2739 (2004), established that the ATS is a jurisdictional
statute that creates no new causes of action. The concept is
not as simple as it sounds.
10 No. 03-3089
The Sosa case grew out of the capture in Mexico of a Drug
Enforcement Administration agent who was taken to a
house in Guadalajara, where he was tortured over the
course of a 2-day interrogation and then murdered. DEA
officials in the United States came to believe that Humberto
Alvarez-Machain (Alvarez), a Mexican physician, was
present at the house and acted to prolong the agent’s life so
that the interrogation and torture could be extended. Alvarez
was indicted in the United States District Court for the
Central District of California. The DEA asked the Mexican
government to help obtain Alvarez’s presence in the United
States. When that failed, the DEA hired Mexican nationals,
including Jose Francisco Sosa, to seize Alvarez and bring
him to the United States from Mexico. Sosa and the others
abducted Alvarez, held him overnight in a motel, and
brought him by private plane to El Paso, Texas, where he
was arrested by federal officers. Eventually, Alvarez went to
trial, but the district court granted his motion for a judg-
ment of acquittal. After returning to Mexico, Alvarez filed
suit in the Central District of California against Sosa and
others under the Federal Tort Claims Act, 28 U.S.C. § 2674,
and the ATS.
As relevant here, Sosa argued that the action under the
ATS should be dismissed because the statute merely pro-
vided the court with jurisdiction but did not authorize the
courts to recognize any particular right of action without
further congressional action. On the other hand, Alvarez
argued that the statute was not simply a jurisdictional
grant but was authority for the creation of a new cause of
action for torts in violation of international law. The Court
found that the statute was intended as jurisdictional “in the
sense of addressing the power of the courts to entertain cases
concerned with a certain subject.” At 2755. But it also
reasoned that when Congress enacted the statute in 1789,
it did not enact a “stillborn” statute which could not provide
a claim for relief without a further statute expressly
No. 03-3089 11
authorizing a cause of action. Examining international law
at the time of enactment, the Court found that specific
recognized violations of the law of nations were probably in
the minds of the drafters of the ATS. These included safe
conducts, infringement of the rights of ambassadors, and
piracy. The Court stated:
[A]lthough the ATS is a jurisdictional statute creating
no new causes of action, the reasonable inference from
the historical materials is that the statute was intended
to have practical effect the moment it became law. The
jurisdictional grant is best read as having been enacted
on the understanding that the common law would
provide a cause of action for the modest number of
international law violations with a potential for per-
sonal liability at the time.
At 2761.
But, the Court cautioned,
there are good reasons for a restrained conception of the
discretion a federal court should exercise in considering
a new cause of action of this kind. Accordingly, we think
courts should require any claim based on the present-
day law of nations to rest on a norm of international
character accepted by the civilized world and defined
with a specificity comparable to the features of the
18th-century paradigms we have recognized.
At 2761-62.
In sum, “the judicial power should be exercised on the
understanding that the door is still ajar subject to vigilant
doorkeeping . . . .” At 2764.
Alvarez’s case against Sosa was properly dismissed
because a “single illegal detention of less than a day, fol-
lowed by the transfer of custody to lawful authorities and a
prompt arraignment, violates no norm of customary in-
12 No. 03-3089
ternational law so well defined as to support the creation of
a federal remedy.” At 2769.
Because the ATS provides jurisdiction over a very limited
number of claims and the jurisdictional grant is so closely
tied to the claim, we need to examine whether there is a
claim in this case which allows for the exercise of jurisdic-
tion. See Kadic v. Karadzic, 70 F.3d 232, 238 (2nd Cir.
1995) (“Because the Alien Tort Act requires that plaintiffs
plead a ‘violation of the law of nations’ at the jurisdictional
threshold, this statute requires a more searching review of
the merits to establish jurisdiction than is required under
the more flexible ‘arising under’ formula of section 1331.”).
The plaintiffs before us allege significantly more appall-
ing violations than did Alvarez. Their allegations fall into
two primary categories that the Sosa Court specifically
recognized as violations of the law of nations: torture and
killing. The Court also noted that Congress has provided an
“unambiguous” basis for “federal claims of torture and
extrajudicial killing” in the Torture Victim Protection Act of
1991, 106 Stat. 73. Sosa, 124 S. Ct. at 2763.1
This would seem to be positive news for the plaintiffs. But
that may not necessarily be so. In the district court,
Abubakar argued that because the plaintiffs had not
complied with the exhaustion requirement in the Torture
Victim Protection Act, their case should be dismissed. The
district judge rejected the argument because the plaintiffs
had not pled their case under the Act and therefore had no
need to comply with its requirements. The implication of
the district court’s decision is that there are two bases for
relief against torture and extrajudicial killing: the statute
and independently existing common law of nations condemn-
ing torture and killing. The issue, then, becomes whether
1
Tellingly, the Torture Victim Protection Act is inserted in the
United States Code under the Historical and Statutory Notes of
the ATS (28 U.S.C. § 1350).
No. 03-3089 13
both can simultaneously exist to provide content to the
ATS. In other words, does the Torture Victim Protection Act
occupy the field or could a plaintiff plead under the Act
and/or under the common law?
We find that the Act does, in fact, occupy the field.2 If it
2
The dissent cites Kadic for the proposition that the “scope of the
Alien Tort Act remains undiminished by enactment of the Torture
Victim Act.” The court, however, made this pronouncement as a
gloss on H.R. Rep. No. 367, 102d Cong., 2d Sess., at 4 (1991),
which stated that
(c)laims based on torture and summary executions do not
exhaust the list of actions that may appropriately be covered
[by the Alien Tort Act]. That statute should remain intact to
permit suits based on other norms that already exist or may
ripen in the future into rules of customary international law.
The latter statement does not, we think, necessarily say that
there are now two routes for claims based on torture and killing
to take. Rather, it indicates that the enactment of the Torture
Victim Protection Act did not signal that torture and killing are
the only claims which can be brought under the Alien Tort
Statute. Other claims, in addition to torture and killing as pro-
vided for in the Torture Victim Protection Act, can still be recog-
nized under the ATS as well. That issue, however, does not concern
us in this case. We also think that the court in Flores v. Southern
Peru Copper Corp., 343 F.3d 140 (2nd Cir. 2003), was cognizant
that the relationship between the statutes was murky. In
discussing what the Tort Victim Protection Act was intended to
accomplish, the court said:
(N)either Congress nor the Supreme Court has definitively
resolved the complex and controversial questions regarding
the meaning and scope of the ATCA.
It is true that, in affirming the district court’s dismissal of all
claims in the case, the court in Beanal v. Freeport-McMoran, Inc.,
197 F.3d 161 (5th Cir. 1999), discussed separately claims under
the ATS and the Torture Victim Protection Act. There was,
however, no need for the court to reach difficult questions such as
(continued...)
14 No. 03-3089
did not, it would be meaningless. No one would plead a
cause of action under the Act and subject himself to its re-
quirements if he could simply plead under international law.
While there is no explicit statement to this effect in Sosa,
the implications are that the cause of action Congress pro-
vided in the Torture Victim Protection Act is the one which
plaintiffs alleging torture or extrajudicial killing must
plead. As we said, the Court found that Act an “unambigu-
ous” basis for such claims. The Court went on to say that
the affirmative authority is confined to its specific subject
matter, and that the legislative history says that § 1350
should “remain intact to permit suits based on other norms
that already exist or may ripen in the future into rules of
customary international law,” but the Court said Congress
had done nothing to promote other such suits. Id. The Court
emphasizes that “great caution” must be taken to adapt the
laws of nations to private rights. It requires “vigilant
doorkeeping.” The Court was concerned with “collateral
consequences” of making international rules privately
actionable:
[T]he subject of those collateral consequences is itself a
reason for a high bar to new private causes of action for
violating international law, for the potential impli-
cations for the foreign relations of the United States of
recognizing such causes should make court particularly
2
(...continued)
the relationship between the two statutes when the plaintiff ’s
complaint failed entirely. Further, that the ATCA confers a pri-
vate right of action is not contested in the case before us (as it was
in Abebe-Jira v. Negewo, 72 F.3d 844 (11th Cir. 1996)), nor is the
fact that one interpretation of the Torture Victim Protection Act
is that it codified existing law, especially as set out in Filartiga
v.Pena-Irala, 630 F.2d 876 (2nd Cir. 1980). In short, we think that
the law on the issue before us is far from settled in the courts of
appeals, but that the Supreme Court in Sosa offers us the best
guidance as to what the relationship between these two statutes
should be.
No. 03-3089 15
wary of impinging on the discretion of the Legislative
and Executive Branches in managing foreign affairs. . . .
Since many attempts by federal courts to craft remedies
for the violation of new norms of international law would
raise risks of adverse foreign policy consequences, they
should be undertaken, if at all, with great caution.
Id. It is hard to imagine that the Sosa Court would approve
of common law claims based on torture and extrajudicial
killing when Congress has specifically provided a cause of
action for those violations and has set out how those claims
must proceed. As relevant to this case, then, the ATS would
provide jurisdiction over a suit against General Abubakar
for violations of the Torture Victim Protection Act.
But, as we mentioned, one procedural requirement in the
Act is exhaustion. Section 2(b) says:
A court shall decline to hear a claim under this section
if the claimant has not exhausted adequate and avail-
able remedies in the place in which the conduct giving
rise to the claim occurred.
It may be that a requirement for exhaustion is itself a basic
principle of international law. In Sosa, the European
Commission filed a brief as amicus curiae arguing that
“basic principles of international law require that before as-
serting a claim in a foreign forum, the claimant must have
exhausted any remedies available in the domestic legal
system, and perhaps in other fora such as international
claims tribunals.” Sosa at 2766 n.21. The Court commented
that it “would certainly consider this requirement in an
appropriate case” and notes that the Torture Victim
Protection Act has such a requirement. Id.The plaintiffs before us have not pled under the Torture
Victim Protection Act, and nothing in the record indicates
that they have exhausted their remedies. We will remand
this case to the district court for a determination regarding
whether the plaintiffs should be allowed to amend their
complaint to state such a claim and, if they do, whether, in
16 No. 03-3089
fact, the exhaustion requirement in the Torture Victim
Protection Act defeats their claim. We therefore AFFIRM the
decision of the district court concluding that General
Abubakar is not immune from suit under the FSIA and
REMAND the case to the district court for proceedings con-
sistent with this opinion. Each side shall bear their own costs.
CUDAHY, Circuit Judge, dissenting in part. The majority
remands this case because, though General Abubakar may
not claim sovereign immunity for alleged human rights
abuses, “[t]he plaintiffs before us have not pled under the
Torture Victim Protection Act and nothing in the record in-
dicates that they have exhausted their remedies.” Maj. Op.
at 16. While I agree that the defendant General Abubakar
ultimately cannot claim sovereign immunity for the acts of
torture and extrajudicial killing alleged in this case, I can-
not agree that plaintiffs’ suit is precluded by their failure to
bring a claim under the Torture Victim Protection Act of
1991 (TVPA) or by their failure to exhaust legal remedies in
Nigeria.
The Relationship Between the ATCA and the TVPA
The majority’s opinion raises an important legal question:
whether the TVPA, 28 U.S.C. § 1350, note, P.L. 102-256,
effectively restricts or precludes an alien’s ability to bring
claims for torture or extrajudicial killing under the Alien
No. 03-3089 17
Tort Claims Act (ATCA), 28 U.S.C. § 1350.1 A host of factors
strongly indicate that it does not.
First, both the plain text and the legislative history of the
TVPA indicate that it was meant to expand, not restrict, the
remedies available under the ATCA. The text of the TVPA
itself contains no implicit or explicit repeal of the ATCA,
nor does it indicate a Congressional intent to limit or
supercede the ATCA in any way. It is a long-standing canon
of statutory construction that repeals by implication are
disfavored: “Where there are two acts upon the same
subject, effect should be given to both if possible . . . . the
intention of the legislature to repeal must be clear and mani-
fest; otherwise, at least as a general thing, the later act is
to be construed as a continuation of, and not a substitute
for, the first act.” Posadas v. Nat’l City Bank of New York,
296 U.S. 497, 503 (1936);2 see also Branch v. Smith, 538
U.S. 254, 273 (2003) (“absent a clearly expressed congressio-
nal intention . . . repeals by implication are not favored”)
(internal quotations omitted); Morton v. Mancari, 417 U.S.
535, 551 (1974) (same rule). Additionally, as the majority
notes, the TVPA itself was codified as part of the Historical
1
This provision has also been referred to as the “Alien Tort Act,”
see, e.g., Kadic v. Karadzic, 70 F.3d 232, 238 (2d Cir. 1995), and
the “Alien Tort Statute,” see, e.g., Filartiga v. Pena-Irala, 630 F.2d
876, 880 (2d Cir. 1980).
2
The Court elaborates on this principle as follows: “There are two
well-settled categories of repeals by implication: (1) Where
provisions in the two acts are in irreconcilable conflict, the later
act to the extent of the conflict constitutes an implied repeal of the
earlier one; and (2) if the later act covers the whole subject of the
earlier one and is clearly intended as a substitute, it will operate
similarly as a repeal of the earlier act. But, in either case, the
intention of the legislature to repeal must be clear and manifest;
otherwise, at least as a general thing, the later act is to be
construed as a continuation of, and not a substitute for, the first
act and will continue to speak, so far as the two acts are the same,
from the time of the first enactment.” Posadas, 296 U.S. at 503.
18 No. 03-3089
and Statutory Notes of the ATCA. See Maj. Op. at 12 n.1.
This also suggests that the TVPA was meant to augment or
elaborate the ATCA, not replace it.
But even assuming this constructional question cannot be
resolved by text and canon alone, the legislative history of
the TVPA leaves no doubt about the matter. By its terms the
ATCA provides jurisdiction over tort suits brought by aliens
only. After Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir.
1980), and its progeny made ATCA human rights suits a
familiar feature of the federal judicial landscape, Congress
enacted the TVPA in 1991 specifically to provide a cause of
action for American nationals subject to torture or extraju-
dicial killing in foreign countries. In so doing, Congress
cited with approval the Filartiga line of cases and stated its
intent to augment and expand the ATCA by providing a
new cause of action accessible to American victims of
brutality abroad. See S. Rep. No. 102-249, at 4-5 (1991);
H.R. Rep. No. 102-367(I), at 3-4 (1991). In short, Congress
did not seek to displace or circumscribe the ATCA, but rather
to augment and expand its reach3. Congressional Reports on
the TVPA state that
The TVPA would establish an unambiguous and modern
basis for a cause of action that has been successfully
maintained under an existing law, section 1350 of the
Judiciary Act of 1789 (the Alien Tort Claims Act), which
permits Federal district courts to hear claims by aliens
for torts committed “in violation of the law of nations.”
(28 U.S.C. sec. 1350). Section 1350 has other important
3
As at least one court of appeals has also noted, whereas the
ATCA speaks only in terms of the jurisdiction of U.S. courts to
hear alien tort claims, the TVPA went one step further to create
liability for acts of torture and extrajudicial killing under U.S.
law. See Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 104-05
(2d Cir. 2000).
No. 03-3089 19
uses and should not be replaced. There should also,
however, be a clear and specific remedy, not limited to
aliens, for torture and extrajudicial killing.
H.R. Rep. No. 102-367(I), at 3 (emphasis added). Turning to
the ATCA’s ambiguity regarding a cause of action for
human rights claims,4 the House Report continued:
The TVPA would provide such a grant [of an express
cause of action], and would also enhance the remedy
already available under section 1350 in an important
respect: While the Alien Tort Claims Act provides a rem-
edy to aliens only, the TVPA would extend a civil remedy
also to U.S. citizens who may have been tortured abroad.
Official torture and summary executions merit special
attention in a statute expressly addressed to those
practices. At the same time, claims based on torture or
summary executions do not exhaust the list of actions
that may appropriately be covered [by] section 1350.
That statute should remain intact to permit suits based
on other norms that already exist or may ripen in the
future into rules of customary international law.
H.R. Rep No. 102-376(I), at 4. The Senate Report on the
TVPA casts the Act in the same light, using virtually iden-
tical language. See S. Rep. No. 102-249, at 5.5 The major
4
On this score the Report is responding in particular to the
concerns raised by Judge Bork in his concurring opinion in
Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C. Cir. 1984).
The Report cites Judge Bork’s opinion specifically. See H.R. Rep.
No. 102-367(I), at 4.
5
Addressing these same issues, the Senate Report states:
The TVPA would establish an unambiguous basis for a cause
of action that has been successfully maintained under an
existing law, section 1350 of title 28 of the U.S. Code, derived
from the Judiciary Act of 1789 (the Alien Tort Claims Act).
(continued...)
20 No. 03-3089
ity’s contention that the TVPA would be “meaningless” if it
did not preempt the ATCA is therefore incorrect—the TVPA
still serves its purpose of filling a gap in the ATCA’s
coverage by providing a cause of action for American
citizens for certain human rights violations. In this respect
the TVPA does not even purport to “occupy the entire field”
(as the majority claims) and, as Congress itself made clear,
the ATCA was to remain intact to function as before.
The two acts thus are not competing provisions but are
meant to be complementary and mutually reinforcing (if
somewhat coextensive). Federal courts addressing this spe-
cific issue have ruled accordingly, holding that the TVPA
does not restrict the scope and coverage of the ATCA. See,
e.g., Kadic v. Karadzic, 70 F.3d 232, 241 (2d Cir. 1995)
(“The scope of Alien Tort Act remains undiminished by
enactment of the Torture Victim Act”); Flores v. S. Peru
Copper Corp., 343 F.3d 140, 153 (2d Cir. 2003) (recognizing
that “the TVPA reaches conduct that may also be covered
by the ATCA”); Beanal v. Freeport-McMoran, Inc., 197 F.3d
161, 168-69 (5th Cir. 1999) (considering separately claims
under the ATCA and TVPA that are “essentially predicated
5
(...continued)
....
The TVPA would provide such a grant [of a cause of action],
and would also enhance the remedy already available under
section 1350 in an important respect: while the Alien Tort
Claims Act provides a remedy to aliens only, the TVPA would
extend a civil remedy also to U.S. citizens who may have been
tortured abroad. Official torture and summary executions
merit special attention in a statute expressly addressed to
those practices. At the same time, claims based on torture or
summary executions do not exhaust the list of actions that
may appropriately be covered by section 1350. Consequently,
that statute should remain intact.
S. Rep. No. 102-249 at 4-5 (footnote omitted).
No. 03-3089 21
on the same claims of individual human rights abuses”);
Abebe-Jira v. Negewo, 72 F.3d 844, 848 (11th Cir. 1996)
(citing the TVPA as confirmation that the ATCA itself
confers a private right of action); Hilao v. Estate of Marcos,
103 F.3d 767, 778-79 (9th Cir. 1996) (noting that the TVPA
codifies the cause of action recognized to exist in the ATCA);
Wiwa v. Royal Dutch Petroleum Co. et al., 2002 WL 319887at *4 (S.D.N.Y. Feb. 28, 2002) (concluding that “plaintiffs’
claims under ATCA are not preempted by the TVPA . . . .
the TVPA simply provides an additional basis for assertion
of claims for torture and extrajudicial killing”); Doe v.
Islamic Salvation Front, 993 F. Supp. 3, 7-9 (D.D.C. 1998)
(recognizing simultaneous claims under the ATCA and the
TVPA). Indeed to rule otherwise would implicitly undercut
more than twenty years of jurisprudence, inaugurated by
Filartiga, which affirms the ATCA’s applicability to human
rights suits. The majority has not identified any contrary
precedents on this point, and I am not aware of any.
Of course, the Supreme Court addressed the scope of the
ATCA quite recently in Sosa v. Alvarez-Machain, 124 S.Ct.
2739 (2004). The majority incredibly casts the Sosa decision
as confirming the preclusive effect of the TVPA. See Maj.
Op. at 14-15. Yet in fact the Sosa Court, while cautioning
that the set of international norms supporting a cause of
action for suits under the ATCA must be construed nar-
rowly, stated that “a clear mandate” for such suits appears
in the TVPA. Id. at 2763. Torture and extra-judicial killing
were thus cited as paradigmatic examples of international
norms that are sufficiently universal and definite to support
claims under the ATCA. It would be decidedly odd—indeed
it would be grossly misleading—if the Supreme Court, in
making such a declaration, meant to remove these very
causes of action from the ambit of the ATCA. The majority,
in claiming Sosa as authority for the preclusive effect of the
TVPA, stands Sosa on its head. That case in fact relies on
the TVPA as evidence of Congressional acceptance of
22 No. 03-3089
torture as a norm enforceable via the ATCA. There is
nothing, express or implied, in Sosa to suggest anything
about preclusion.
In view of the text of the TVPA itself, the circumstances
surrounding its passage, the canons of statutory interpreta-
tion discouraging repeals by implication, the legislative
history of the Act and prevailing judicial rulings on the sub-
ject, it is clear that the TVPA was not intended to preempt
or restrict aliens’ ability to bring claims for torture and
extrajudicial killing under the ATCA. Plaintiffs in the
present case should be allowed to bring their claims for
these abuses under the ATCA itself, without resorting to
the TVPA.
Exhaustion of Remedies:
This brings us to exhaustion of remedies. As the majority
notes, the TVPA contains an exhaustion requirement—in-
dividuals suing under the TVPA must first exhaust available
legal remedies in the place where the alleged misconduct
occurred before bringing suit in U.S. court. 28 U.S.C. § 1350,
note, § 2(b). Having given preemptive effect to the TVPA,
the majority rules that plaintiffs’ claims are procedurally
barred since they have not demonstrated that they have
exhausted their remedies. Maj. Op. at 16. This disposition
is problematic for several reasons.
First, since the TVPA does not preclude or preempt
actions brought under the ATCA and the common law for
torture or extrajudicial killing, it follows that the specific
exhaustion requirement of the TVPA does not apply to
ATCA actions in the first place. But, to be sure, incorporat-
ing an implicit exhaustion requirement in the ATCA would
have something to recommend it. Doing so would, among
other things, bring the Act into harmony with both the
provisions of the TVPA (with which it is at least partially
coextensive) and with the acknowledged tenets of interna-
No. 03-3089 23
tional law.6 And while not directly applicable to the ATCA,
the TVPA scheme is surely persuasive since it demonstrates
that Congress not only assumed that the exhaustion
requirements imposed by customary international law were
discernible and effective in themselves, but also that they
should be reflected in U.S. domestic law.7 Considerations of
equity and consistency also recommend this approach since
otherwise American victims of torture would be bound by an
6
Exhaustion of remedies requirements are a well-established
feature of international human rights law. See, e.g., I. BROWNLIE,
PRINCIPLES OF PUBLIC INTERNATIONAL LAW 472-81, 552 (6th ed.
2003); The American Convention on Human Rights, Nov. 22, 1969,
1144 U.N.T.S. 143, art. 46; The European Convention for the
Protection of Human Rights and Fundamental Freedoms, Nov. 4,
1950, 213 U.N.T.S. 222, art. 26; The Velasquez Rodriguez Case,
Inter-Am. C.H.R., July 29, 1988, at ¶¶50-73, available via
http://www.oas.org. Certainly in applying a statute like the ATCA,
where liability is predicated on “violation of the law of nations,” it
would seem natural to honor the basic tenets of public interna-
tional law. It is also well-established that, as a general proposi-
tion, U.S. law should incorporate and comport with international
law where appropriate. See F. Hoffman-La Roche Ltd. v.
Empagran S.A., 124 S.Ct. 2359, 2366 (2004) (Courts must assume
that Congress seeks to comply with customary international law);
The Paquete Habana, 175 U.S. 677, 700 (1900) (“International law
is part of our law, and must be ascertained and administered by
the courts of justice of appropriate jurisdiction as often as
questions of right depending upon it are duly presented for their
determination.”); Murray v. Schooner Charming Betsy, 2 Cranch
64, 118 (1804) (“[A]n act of Congress ought never to be construed
to violate the law of nations if any other possible construction
remains”).
7
The TVPA’s legislative history reveals that its exhaustion pro-
visions are expressly modeled on those of customary international
law, and it sets forth the parameters of the exhaustion analysis
with striking clarity. See S. Rep. No. 102-249, at 9-10.
24 No. 03-3089
exhaustion requirement under the TVPA and foreign
plaintiffs could avoid such strictures by pleading under the
ATCA.
This question is far from settled, however, and the
Supreme Court’s decision in Sosa, though suggestive, offers
little guidance. While it recognizes the possibility of reading
an exhaustion requirement into the ATCA, the Court states
only that it “would certainly consider this [exhaustion]
requirement in an appropriate case.” 124 S.Ct. at 2766, n. 21.
Other federal courts appear to be less receptive to the idea.8
In short, it is far from clear that, purely as a matter of
United States jurisprudence, the ATCA contains any
exhaustion requirement at all.
However, even assuming that an exhaustion requirement
should be read into the ATCA, the majority has placed the
evidentiary burden on the wrong party. Under both the
TVPA and public international law, it is the respondent
or defendant’s burden to demonstrate that plaintiffs had
8
Apparently no court of appeals has confronted the issue squarely,
though the Second Circuit’s decision in Kadic v. Karadzic at least
implicitly did so by ostensibly declining to impose an exhaustion
requirement on claims for torture and summary execution, even
though it was also considering TVPA claims based on the same
alleged abuses. 70 F.3d at 241-44. Several federal district courts
have made more express rulings to this effect. See Doe v. Rafael
Saravia, 348 F. Supp. 2d 1112, 1157 (E.D. Cal. 2004) (“Plaintiffs
asserting claims under the ATCA are not required to exhaust
their remedies in the state in which the alleged violations of
customary international law occurred.”); Sarei v. Rio Tinto PLC,
221 F. Supp. 2d 1116, 1133 (C.D. Cal. 2002) (“The court is not
persuaded that Congress’ decision to include an exhaustion of
remedies provision in the TVPA indicates that a parallel require-
ment must be read into the ATCA.”) (citing Kadic, 70 F.3d at 241);
Jama v. I.N.S., 22 F. Supp. 2d 353, 364 (D.N.J. 1998) (“There is
nothing in the ATCA which limits its application to situations
where there is no relief available under domestic law.”).
No. 03-3089 25
adequate legal remedies which they did not pursue on the
country where the alleged abuses occurred. See S. Rep.
No. 102-249, at 10 (“respondent has the burden of raising
the nonexhaustion of remedies as an affirmative defense and
must show that domestic remedies exist that the claimant
did not use.”);9 accord Hilao, 103 F.3d at 778 n.5 (quoting
9
The Senate Report on the Torture Victim Protection Act is quite
clear on both the specifics of the exhaustion of remedies analysis
and its basis in international law:
Cases involving torture abroad which have been filed under
the Alien Tort Claims Act show that torture victims bring
suits in the United States against their alleged torturers only
as a last resort. Usually, the alleged torturer has more
substantial assets outside the United States and the jurisdic-
tional nexus is easier to prove outside the United States.
Therefore, as a general matter, the committee recognizes that
in most instances the initiation of litigation under this legisla-
tion will be virtually prima facie evidence that the claimant
has exhausted his or her remedies in the jurisdiction in which
the torture occurred. The committee believes that courts
should approach cases brought under the proposed legislation
with this assumption.
More specifically, as this legislation involves international
matters and judgments regarding the adequacy of procedures
in foreign courts, the interpretation of section 2(b), like the
other provisions of this act, should be informed by general
principles of international law. The procedural practice of
international human rights tribunals generally holds that the
respondent has the burden of raising the nonexhaustion of
remedies as an affirmative defense and must show that
domestic remedies exist that the claimant did not use. Once
the defendant makes a showing of remedies abroad which
have not been exhausted, the burden shifts to the plaintiff to
rebut by showing that the local remedies were ineffective,
unobtainable, unduly prolonged, inadequate, or obviously
(continued...)
26 No. 03-3089
S. Rep. No. 102-249, at 9-10); The Velasquez Rodriguez
Case, Inter-Am. C.H.R., July 29, 1988, at ¶¶57-61, available
via http://www.oas.org (citing The American Convention on
Human Rights, Nov. 22, 1969, 1114 U.N.T.S. 143, art. 46).
Then, if the defendant “makes a showing of remedies abroad
which have not been exhausted, the burden shifts to the
plaintiff to rebut by showing that the local remedies were
ineffective, unobtainable, unduly prolonged, inadequate, or
obviously futile.” S. Rep. No. 102-249 at 10; accord The
Velasquez Rodriguez Case, Inter-Am. C.H.R., July 29, 1988,
at ¶¶57-61, available via http://www.oas.org.
In the present case Abubakar has raised the non-exhaus-
tion defense, but he appears not to have proven the existence
of specific remedies that should have been pursued in Nigeria.
On this basis alone Abubakar’s exhaustion defense must
fail. See Hilao, 103 F.3d at 778 n.5 (denying defense of
exhaustion where defendant had not carried its evidentiary
burden under this burden-shifting scheme); accord The
Velasquez Rodriguez Case, Inter-Am. C.H.R., July 29, 1988,
at ¶60, available via http://www.oas.org (state alleging non-
9
(...continued)
futile. The ultimate burden of proof and persuasion on the
issue of exhaustion of remedies, however, lies with the
defendant.
This practice is generally consistent with common-law prin-
ciples of exhaustion as applied by courts in the United States.
See, e.g., Honig v. Doe, 484 U.S. 305, 325-29 (1988) (allowing
plaintiffs to by-pass administrative process where exhaustion
would be futile or inadequate).
....
As in the international law context, courts in the United
States do not require exhaustion in a foreign forum when
foreign remedies are unobtainable, ineffective, inadequate, or
obviously futile.
S. Rep. No. 102-249, at 9-10 (footnotes omitted).
No. 03-3089 27
exhaustion of remedies must “prove[ ] the existence of
specific domestic remedies that should have been utilized”).
But even if General Abubakar were deemed to have made
the requisite showing that specific domestic legal remedies
exist, plaintiffs’ suit should still be allowed to proceed.
Plaintiffs have introduced evidence that they or their rela-
tives were targeted by the Nigerian government as political
enemies, and under such circumstances there was obviously
nothing to be gained by filing complaints in the Nigerian
courts. The facts of life shed some doubt on the majority’s
airy conclusion that African courtrooms would provide a more
hospitable forum for these claims than those of Chicago. U.S.
government sources reveal that from the year 2000, when
Abubakar relinquished power, until 2003, when plaintiffs
filed the instant suit, the Nigerian judiciary was under-
funded, corrupt, subject to political influence and generally
unable or unwilling to compensate victims of past human
rights abuses. See United States Department of State,
Nigeria: Country Reports on Human Rights Practices—2003
(February 25, 2004), §§ 1(e), 4; United States Department
of State, Nigeria: Country Reports on Human Rights
Practices—2000 (February 23, 2001), at §§ 1(e), 4. There
can be little doubt but that the legal remedies offered by the
Nigerian courts were indeed ineffective, unobtainable,
unduly prolonged, inadequate or obviously futile under any
applicable exhaustion provisions.
Finally, to the extent that there is any doubt on this
issue, both Congress and international tribunals have man-
dated that such doubts be resolved in favor of the plaintiffs.
The Senate Report on the TVPA directs courts to assume
that the exhaustion requirement has been met. Since “tor-
ture victims bring suits in the United States against their
alleged torturers only as a last resort . . . . the initiation of
litigation under this legislation will be virtually prima facie
evidence that the claimant has exhausted his or her remedies
28 No. 03-3089
in the jurisdiction in which the torture occurred.” S. Rep. No.
102-249, at 9-10 (emphasis added). The Report explicitly
states that “courts should approach cases brought under the
proposed legislation with this assumption” and reminds us
that “[t]he ultimate burden of proof and persuasion on the
issue of exhaustion of remedies . . . lies with the defendant.”
Id. at 10 (emphasis added); accord The Velasquez Rodriguez
Case, Inter-Am. C.H.R., July 29, 1988, at ¶59, available via
http://www.oas.org (“the State claiming non-exhaustion has
an obligation to prove that domestic remedies remain to be
exhausted and that they are effective”) (quotation marks
omitted).
Immunity
Thus, even if an exhaustion requirement is read into the
ATCA, the majority should have proceeded to the merits of
the immunity issue rather than remand the case for con-
sideration of pleading and exhaustion questions. As to the
immunity issue itself, the district court concluded that the
Foreign Sovereign Immunities Act (FSIA) does not apply to
individuals, and the majority opinion appears to agree,
holding that General Abubakar receives no protection from
the Act. See Maj. Op. at 9; cf. Ye v. Zemin, 383 F.3d 620, 625
(7th Cir. 2004) (“The FSIA does not . . . address the im-
munity of foreign heads of states. The FSIA refers to foreign
states, not their leaders.”).
Of course, the majority of courts of appeals disagree, hold-
ing that the FSIA affords immunity to individual foreign
officials for legally authorized acts taken in their official
capacity. See Velasco v. Indonesia, 370 F.3d 392, 398 (4th
Cir. 2004) (“courts have construed foreign sovereign im-
munity to extend to an individual acting in his official
capacity on behalf of a foreign state”); Park v. Shin, 313
F.3d 1138, 1144 (9th Cir. 2002) (“Individual government
employees may be considered ‘foreign states’ within the
No. 03-3089 29
meaning of the FSIA.”); Keller v. Central Bank of Nigeria,
277 F.3d 811, 815 (6th Cir. 2002) (“normally foreign sovereign
immunity extends to individuals acting in their official
capacities as officers of corporations considered foreign
sovereigns.”); Byrd v. Corporacion Forestal Y Industrial De
Olancho S.A., 182 F.3d 380, 388 (5th Cir. 1999) (“Normally,
the FSIA extends to protect individuals acting within their
official capacity as officers of corporations considered
foreign sovereigns.”); El-Fadl v. Central Bank of Jordan, 75
F.3d 668, 671 (D.C. Cir. 1996) (“An individual can qualify as
an ‘agency or instrumentality of a foreign state’ ” when
acting in his official capacity on behalf of the state.);
Chuidian v. Philippine Nat’l Bank, 912 F.2d 1095, 1103 (9th
Cir. 1990) (Concluding that the FSIA “can fairly be read to
include individual sued in their official capacity.”).
Affording immunity to foreign officials for legally author-
ized acts may be more consonant with the tenets of current
international law10—not to mention this country’s own law
on immunities for domestic officials11—yet under either
approach the end result is the same since, even under the
more liberal interpretation advanced by the majority of the
circuits, officials receive no immunity for acts that violate
international jus cogens human rights norms (which by
10
See Regina v. Bow Street Metropolitan Stipendiary Magistrate
and Others, Ex Parte Pinochet Ugarte (No. 3), [2000] 1 A.C. 147
(1999) (appeal taken from Q.B.) (ruling that a former head of state
enjoys immunity for legally authorized acts taken in his official
capacity, but not for acts, such as torture, committed in violation
of jus cogens international norms); Case Concerning the Arrest
Warrant of 11 April 2000 (Democratic Republic of the Congo v.
Belgium), I.C.J., February 14, 2002, at ¶61, available at
http://www.icj-cij.org (confirming that national courts may try
former foreign officials for acts committed in their private ca-
pacities).
11
See, e.g., Monell v. Dept. of Soc. Svcs., 436 U.S. 658, 690 n.55
(1978).
30 No. 03-3089
definition are not legally authorized acts). See, e.g., Chuidian,
912 F.2d at 1106 (“Sovereign immunity . . . will not shield
an official who acts beyond the scope of his authority.”);
Hilao v. Estate of Marcos, 25 F.3d 1467, 1472 (9th Cir.
1994) (“acts of torture, execution, and disappearance were
clearly acts outside of his authority as President . . . .
Marcos’ acts were not taken within any official mandate and
were therefore not the acts of an agency or instrumentality
of a foreign state within the meaning of FSIA.”) (citing
Chuidian, 912 F.3d at 1106); Trajano v. Marcos, 978 F. 2d
493 (9th Cir. 1992) (same rule). General Abubakar is
therefore not entitled to immunity in any event.12
12
The foreign policy implications of the immunity question are
intensified where a sitting or former foreign head of state is
involved. Fortunately, the question of General Abubakar’s immun-
ity for acts taken as Nigeria’s head of state is not before
us—General Abubakar has appealed the district court’s denial of
immunity only for acts taken as a member of the Nigerian
Provisional Ruling Council.
No. 03-3089 31
Conclusion
For the foregoing reasons, I would affirm the ruling of the
district court and allow this case to proceed to a trial on the
merits.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-23-05
32 No. 03-3089