Alien Tort Claims Act

• Author: International Law Group

The plaintiffs in this case are surviving Nigerian victims of the military junta that oppressed Nigeria from November 1993 until May 1999. They allege that officially sanctioned government crimes took place ranging from torture to murder.

The Illinois federal court rejected General Abdulsalami Abubakar's (defendant's) claim that he was immune from suit under the Foreign Sovereign Immunities Act of 1976 (28 U.S.C. Section 1605) for official conduct taken while he was a Nigerian public official.

Defendant filed this interlocutory appeal. In a divided vote, the U.S. Court of Appeals for the Seventh Circuit affirms and remands.

The Court first notes that "'[t]he 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.' ... We noted that the FSIA did not seem to subscribe to Louis XIV's not-so- modest view that 'L'etat, c'est moi.'" [Slip op. 9] Under 28 U.S.C. Section 1603(a), a "foreign state" includes "a political subdivision of a foreign state or an agency or instrumentality of a foreign state."

In turn, an "agency or instrumentality of a foreign state" includes a "separate legal person, corporate or otherwise." 28 U.S.C. Section 1603(b). Spurning defendant's argument that "separate legal person" must include an individual, the Court declares: "[I]f it was [sic] 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." [Slip op. 10-11]

Acknowledging a conflict with the Ninth Circuit on this point, the Seventh Circuit writes, "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." [Slip op. 12] The Court does concede, however, that some courts have applied the FSIA to individuals when they are acting in their official capacity.

While the Seventh Circuit's interpretation of the FSIA as not affording immunity to defendant favors the plaintiffs here, the Court's conclusions about the relationship between the Alien Tort Claims Act (ATCA) [28...