Will someone familiar with the US legal system please explain this to me. A number of Indian newspapers are carrying a story that the US has declared Pakistan enjoys “immunity” for the Mumbai attacks. I suspect that less than half the issue is being picked up, without context, to sensationalise the story.
I would guess that it’s a statement that the US Government recognizes the Government of Pakistan as a legitimate government, and therefore the Foreign Sovereign Immunities Act applies. If the Indians have an issue, it should be with the doctrine of sovereign immunity in international law, rather than with the US government.
In the U.S., the next-of-kin of someone who died “wrongfully”—murder, negligence, any reason that can be plausibly pinned on someone else, really—can file a civil lawsuit against the party they think is responsible, claiming “wrongful death” or the like and seeking monetary damages. If the U.S. courts find in their favor, then the next of kin can collect monetary damages from whatever assets the defendants have in the U.S. (Note that this is all done in civil court, rather than criminal court; in other words, no jail time will be involved for the defendants in such a case.)
In recent years, this has been extended to the next of kin of victims of terrorist attacks. (The first instance I can remember of this was after the Lockerbie bombing.) Some of the next-of-kin of the Mumbai victims filed a lawsuit in U.S. court against the ISI and its former chiefs, seeking damages for the wrongful deaths of their family members. The State Department (which is the arm of the U.S. Government responsible for foreign affairs) then filed this affadavit pointing out that since the ISI is an arm of the Pakistani government, it enjoys sovereign immunity; this is the principle that governments can’t be sued by private citizens.
At least, this is what I’ve been able to dig up via Googling around. I wasn’t able to find the filing itself (without paying), and I wasn’t able to find recent information on the lawsuit from U.S. sources.
In short, they’re saying the attacks were conducted by the government of Pakistan, not any individuals that may have committed the actual acts. This makes the issue one for diplomats and militaries, not courts of law.
Going off the above, India should probably consider that this basically means that the U.S. considers the bombings to have been conducted by the government of Pakistan. Meaning that they were an act of (undeclared) war, committed by the government of Pakistan, and that said government must take responsibility.
It’s also not a political verdict; this isn’t something that’s part of our foreign policy, but rather is part of the body of law we operate under. The court may or may not accept the State Department’s statement on the matter, but it’s well-established as a legal principle. In fact, because the State Department made this specific statement, it probably means they implicitly recognize that India would be justified in retaliating.
I think you folks are reading too far into that–the US is not AFFIRMATIVELY declaring that “the government of Pakistan did it.” They’re simply saying that, “Even IF the government of Pakistan did it, you can’t sue the ISI, because they enjoy the government’s sovereign immunity.”
I don’t see where the US admits that the ISI was involved in the attacks. They are merely saying that a court case in the US to determine whether or not they were responsible cannot go thru. Saying someone can’t be sued is not the same as saying they are guilty.
These are the correct interpretation. No judgment of the ISI or Pakistan has occurred here.
Of course not. For one, I don’t think the issue has even been decided in the courts. However, were the individuals involved not protected by government sovereign immunity, then any assets vulnerbale to siezure could in fact be taken. To say that they are protected by sovereign immunity implies that the perpetrators are part of the government, and that their actions were implicitly part of government policy.
This is separate from the quesiton of their specific guilt, but shouldn’t be ignored.
Well, that’s what the lawsuit claims. That’s the complainants’ theory of the case; that it was the ISI’s actions in building up the group that did it, and the named respondents role as heads of the ISI, that lead to the attacks. It’s not the US government claiming that; it’s the people suing. And that’s why the lawsuit can’t go forward.
Thanks people. My understanding is that the US is submitting that the court doesn’t have jurisdiction over the charged party. I expected it would be something like this. The press is just (surprise surprise) sensationalising things.
The US statement just said the ISI can’t be named in the suit. Presumably the victims families can still sue the militant groups, but since any terrorist assets in the US would’ve long since been seized, they aren’t going to get anything out of it even if they win.
The statement doesn’t say anything about who actually is responsible for the assault, implicitly or otherwise.
Not sure why sovereign immunity would trump international humanitarian law.
ISI and the chiefs are culpable under international humanitarian law, if found guilty. They are, by definition, spies, and this particular example would be terrorism.
It’s ironic that the US government gets to attack Afghanistan, Libya and Yemen and then turn around and claim that ISI is immune.
The law provides shelter and rationalizations/excuses for doing whatever the US government wishes to do. It’s just that they wish that this court action be suppressed.
The Lockerbie case offers interesting parallels and contrasts.
Spies and terrorists are only protected by the laws of war if the power which holds them is in a state of armed conflict or war and until they are found to be an unlawful combatant. Depending on the circumstances, they may be subject to civilian law or military tribunal for their acts and in practice have been subjected to torture and/or execution. The laws of war neither approve nor condemn such acts, which fall outside their scope.[citation needed] Spies may only be punished following a trial and if captured after rejoining their army must be treated as a prisoner of war.[23] Suspected terrorists who are captured during an armed conflict, without having participated in the hostilities, may be detained only in accordance with the GC IV and are entitled to a regular trial.
After a conflict has ended, persons who have committed any breach of the laws of war, and especially atrocities, may be held individually accountable for war crimes through process of law.
In another ongoing case, the Indian government has held that sovereign immunity is not a magical get out of jail free card, but that it applies to diplomats only. Here Italian marines were accused of shooting Indian fishermen to protect their ship under the mistaken/rash belief that they were pirates.
Similarly, the Italian government did not claim sovereign immunity for CIA agents in the Abu Omar case.
Cornell University law blog holds that in the case of sovereign immunity, the issues are complex and US supreme court decisions are confusing and contradictory )[though the context is more about domestic rather than international law, the principle and some of the analogies may remain.]
Conclusion:
IMHO - The US government took advantage of a particular line of reasoning of the law to rationalize their actions.
The above provides clues as to why the US government acted to suppress the portion of the case.
- It does not wish action that would embarrass it’s ally - Pakistan.
- It does not wish to open itself up to any liabilities from its global war on terror/extra-ordinary rendition.
That doesn’t make sense - the Abu Omar case did not involve private citizens attempting to sue the US government or the Italian government. Instead, it involved criminal (not civil) charges of abduction.
I think you may be confusing sovereign immunity and diplomatic immunity here.
Sovereign immunity applies to any state actor. Individual soldiers don’t enjoy sovereign immunity, but states do. The US court the OP is asking about isn’t saying no Pakistani national can be sued over the Mumbai attacks. It’s saying that US courts can’t assert subject matter jurisdiction over the Pakistani government.
Opening itself up to liability has nothing to do with it. The US has followed the Act of State doctrine since the 1800s, and other states’ courts are free to assert jurisdiction over the US regardless of what its courts do.
IIRC sovereign immunity applies to the head of state also, when acting in that capacity. You can’t sue GWB in England or Germany for what his government did to you. (Nor can you sue the USA itself, obviously). Such lawsuits have to be filed in the correct jurisdiction. Not sur how far down the chain that version of qualified immunity could apply.
People like to sue in the USA because they are more likely to find a sympathetic jury or win on the merits of their case (provided they are not suing the USA itself over someting that can invoke the official secrets act).
he US declaration is simply saying “if you want to get a court to tell you that Pakistan or its agency has wronged you, if you want to obtain a monetary judgement against Pakistan - you’ll have to do that in Pakistani court.”
It avoids the next step, having strange courts start to seize assets like embassies and ambassadors’ assets, national airline aircraft, and other handy national assets. Basically the USA is saying “leave us out of this…”