JURIST Guest Columnist Laurie Blank of Emory Law's International Humanitarian Law Clinic says while legal debates about sovereign immunity most often center on principles of comity versus principles of victim access to justice, courts ruling on this issue should not forget about broader policy considerations and national security….
Remarkably, the United States Supreme Court and the International Court of Justice are addressing nearly identical issues at the same time: the application of sovereign immunity in suits for war crimes and other atrocities. Although the two courts may be unlikely to look to each other for guidance, the very existence of parallel cases about still unresolved issues speaks volumes.
It tells us that the notion of jurisdictional immunity for states is no longer automatic. It drives us to think about the role of sovereign immunity as a bar to jurisdiction and, more importantly, about the limited recourse victims of atrocities have to find justice through retribution and restitution. Finally, it spurs us to think about the policy considerations that rarely come to light amid technical discussions of statutory interpretation.
Samantar v. Yousef examines whether the Foreign Sovereign Immunities Act grants a former Defense Minister of Somalia immunity from suit in U.S. courts for torture and extrajudicial killings. In Germany v. Italy, the ICJ will consider whether Italian national courts have violated Germany’s sovereign immunity by awarding damages to Italian victims of Nazi war crimes.
Notwithstanding certain key differences — human rights violations or war crimes, individual state official or the state itself — the fundamental issues are decidedly similar. Does sovereignty immunize a state, or state officials, from accountability for atrocities, whether during armed conflict or during a repressive regime? Should victims lose the opportunity for redress simply because their oppressor is a state (or wears the cloak of state authority)?
Long-standing notions of comity and the desire to avoid one state’s courts sitting in judgment on another state’s conduct, the traditional justifications for sovereign immunity, are important considerations and worthy of great weight in analyzing how to respond to atrocities committed by states and state officials.
However, history and current events have taught us that the state’s capacity to commit atrocities knows no bounds. In the aftermath of repression and conflict, options for justice and compensation are often limited, if not non-existent. Germany’s provision of billions of dollars in war reparations to Italians and other victims of the Third Reich serves as a model — but unfortunately one that is rarely followed in modern times.
Beyond technical legal questions, therefore, lie broader policy reasons that should not be lost in sophisticated discussions of statutory interpretation and international comity. In other words, the resolution of these cases will not only provide excellent teaching materials for the next semester of International Law, but can have powerful ramifications both at home and abroad.
U.S. and international law prohibitions against torture, war crimes and other atrocities risk becoming meaningless without appropriate mechanisms for accountability. As we so often hear, victims of atrocities who find refuge here in the United States no longer have such refuge if the very perpetrators of those atrocities are living with impunity, just down the road.
But enabling perpetrators to find safe haven here has larger implications as well. The U.S. and other nations have important military and national security interests in ensuring accountability for atrocities, whether by domestic or foreign perpetrators. Our military’s long tradition of accountability for violations of the laws of war, dating back to the Revolutionary War, for example, reflects our military’s tradition of honor and adherence to the law.
More importantly, however, adherence to the law and accountability for abuses protect our military. First, our troops deployed overseas (and civilians as well) benefit from the protections of the law not only because all countries have obligations to respect the law of war and human rights law, but because reciprocity means that our adherence to the law demands comparable behavior from others.
Second, impunity for past abuses is a main ingredient in future abuses, which in turn foster the very instability and chaos that lead the U.S. and other nations to intervene in troubled spots to protect civilians and preserve or restore the rule of law. Increased accountability can thus protect our troops by helping to reduce the need to deploy them in such circumstances.
Debates about sovereign immunity most often center on principles of comity versus principles of victim access to justice. Let’s not forget about broader policy considerations and national security as well while we await the courts’ decisions.
Laurie R. Blank is the Director of Emory Law's International Humanitarian Law Clinic. She co-wrote the amicus brief on behalf of Retired Military Professionals in support of Respondents in Samantar v. Yousef.
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