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United States Court of Appeals for the Seventh Circuit: Enahoro v. Abubakar*

Published online by Cambridge University Press:  27 February 2017

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Type
Judicial and Similar Proceedings
Information
International Legal Materials , Volume 44 , Issue 5 , September 2005 , pp. 1264 - 1275
Copyright
Copyright © American Society of International Law 2005

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Footnotes

*

This document was reproduced and reformatted from the text appearing at the Findlaw website (visited on August 15, 2005) http://caselaw.lp.findlaw.com/data2/circs/7th/033089p.pdf

References

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).

2 The dissent citesKadic 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 theonly claims which can be brought under the Alien Tort Statute. Other claims, in addition to torture and killing as provided for in the Torture Victim Protection Act, can still be recognized under the ATS as well. That issue, however, does not concern us in this case. We also think that the court inFlores 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 inBeanal v. Freeport-McMoran, Inc., 197F.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 the relationship between the two statutes when the plaintiff's complaint failed entirely. Further, that the ATCA confers a private right of action is not contested in the case before us (as it was inAbebe-Jira v. Negewo, 72 F.3d 844 (1 lth 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 inFilartiga 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 inSosa offers us the best guidance as to what the relationship between these two statutes should be.

3 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).

4 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.

5 As at least one court of appeals has also noted, whereas the ATCA speaks only in terms of thejurisdiction of U.S. courts to hear alien tort claims, the TVPA went one step further to createliability 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).

6 On this score the Report is responding in particular to the concerns raised by Judge Bork in his concurring opinion inTel-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(1), at 4.

7 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). 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).

8 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 international law. It is also well-established that, as a general proposition, 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“).

9 The TVPA's legislative history reveals that its exhaustion provisions 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.

10 Apparently no court of appeals has confronted the issue squarely, though the Second Circuit's decision inKadic 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—4-4. Several federal district courts have made more express rulings to this effect. SeeDoe 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 (CD. Cal. 2002) (“The court is not persuaded that Congress’ decision to include an exhaustion of remedies provision in the TVPA indicates that a parallel requirement must be read into the ATCA.“) (citingKadic, 70 F.3d at 241);Jama v.IMS., 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.“).

11 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 jurisdictional 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 legislation 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 non exhaustion 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 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 principles 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).

12 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 ofjus 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 161,available at http://www.icj-cij.org (confirming that national courts may try former foreign officials for acts committed in their private capacities).

13 See, e.g., Monell v. Dept. of Soc. Svcs., 436 U.S. 658, 690 n.55 (1978).

14 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 immunity 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.