Mumbai Terrorist Attacks

Mumbai Terrorist Attacks

Rosenberg v. Lashkar-e-taiba in 2013

United States views on international law [1] in relation to Rosenberg v. Lashkar-e-taiba: in this case, relatives of victims of the 2008 Mumbai terrorist attacks asserted that defendants, the Inter-Services Intelligence Directorate of Pakistan (“ISI”) and its former directors, Ahmed Shuja Pasha and Nadeem Taj, were not entitled to immunity because they engaged in violations of jus cogens norms by providing support for acts of terrorism. The United States filed a statement of interest and suggestion of immunity in 2012. On September 30, 2013, the court issued its decision, dismissing the case as to the ISI, Pasha, and Taj for lack of jurisdiction based on their immunity. Rosenberg et al. v. Lashkar-e-Taiba et al., Nos. 10-05381, 10-05382, 10-05448, 11-03893, 12-05816 (E.D. N.Y. 2013). The court applied precedent in the Second Circuit, Matar v. Dichter, 563 F.3d 9, 14 (2d Cir. 2009) in deferring to the Executive Branch's immunity determination. Excerpts from the court's opinion follow. Plaintiffs appealed the dismissal as to Pasha and Taj.

Some Aspects of Rosenberg v. Lashkar-e-taiba

Turning to the instant action, the United States submitted the Suggestion of Immunity, taking the position that the ISI was immune from suit (Stmt. at 2-6). The United States also took the position that defendants Pasha and Taj, former Directors General of the ISI, are immune pursuant to the common law of foreign sovereign immunity as they were sued in their official capacities for activity arising out of their official duties. (Stmt. at 7-11.)

Developments

A. Defendant ISI

Under the FSIA, and the Supreme Court's clarification regarding its breadth, the Court must surrender jurisdiction once the United States has taken the position that a foreign entity is entitled to sovereign immunity and there is no indication that an exception to the FSIA applies. As set forth above, it is the position of the United States that the ISI is entitled to immunity as it is an agency of the government of the Islamic Republic of Pakistan and it performs core investigative and military functions. (Stmt. at 2-6.) The United States further explained that none of the exceptions to the FSIA are applicable to the ISI in these actions. (Id.) Plaintiffs have not opposed the United States' position with respect to the ISI, nor have they argued that any of the exceptions to the immunity that the ISI derives from the FSIA are applicable in this action. Based on the pleadings and the record in these actions, the Court is satisfied that the ISI has met its burden under the FSIA and the ISI is entitled to immunity from these actions. See Gomes v. ANGOP, et al., 2012 WL 3637453, at *11 (E.D.N.Y. Aug. 22, 2012) (concluding that various ministries of the government of Angola were immune from suit under the FSIA as those ministries were “organs of the state with core governmental functions” thereby “entitled to the presumption of immunity” and plaintiff failed to establish any exception to the FSIA). Accordingly, the ISI's motion to dismiss the complaint is granted. The complaint against the ISI is dismissed with prejudice.

Details

B. Defendants Pasha and Taj

The remaining issue is whether defendants Pasha and Taj, foreign officials, are immune from these actions. The United States based its position on a detailed analysis of the Complaint conducted by the Department of State. (See Letter from Harold Hongju Koh, Department of State, attached as Ex. 1 to Stmt. (“Koh Letter”).) The Department of State “determined that former ISI Directors General Pasha and Taj enjoy immunity from suit with respect to this consolidated action.” (Id. at 2.) In reaching this conclusion, the Department of State explained that:

[T]he complaint contains largely unspecific and conclusory allegations against the Directors General, and relies centrally on plaintiff's incorrect view that the ISI is not part of the Government of Pakistan. By expressly challenging defendants Pasha's and Taj's exercise of their official powers as Directors General of the ISI, plaintiff's claims challenge defendants Pasha's and Taj's exercise of their official powers as officials of the Government of Pakistan. The complaint expressly refers not to any private conduct by defendants, but only to Pasha's and Taj's actions as Directors General of the ISI. All of their allegations in the Complaint are bound up with plaintiff's claims that the former Directors General were in full command and control of the ISI and allegedly acted entirely within that official capacity. The plaintiffs repeatedly assert that the former Directors General 'exerted full command and control' over the ISI. Compl. ¦ 37. On their face, acts of defendant foreign officials who are sued for exercising the powers of their office are treated as acts taken in an official capacity, and plaintiffs have provided no reason to question that determination.

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(Id. at 1-2.)

As a preliminary matter, it was implicit in Plaintiffs' earlier filings that the Statement of Interest would be dispositive on the issue of sovereign immunity. The Plaintiffs described the United States' potential opinion as “critical” and “highly probative” on the issue of immunity. (Pls.' Opp'n at 11-16.) Plaintiffs further urged this Court to defer its ruling on the Moving Defendants' motion until the United States had the opportunity to submit a statement. (Id. at 23.) Consequently, the Court issued an order staying the case and requesting that the United States submit a statement. Understandably, Plaintiffs now seek to distance themselves from the Statement of Interest, which is unfavorable to the survival of their claims. However, given Plaintiffs' prior position in this case, the Court would be justified in deeming Plaintiff's current arguments against the United States' position as waived. Nonetheless, the Court addresses below the merits of Plaintiffs' contention that Pasha and Taj are not entitled to foreign official immunity.

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It is the position of the Executive Branch that defendants Pasha and Taj, former Directors General of the ISI, are entitled to foreign sovereign immunity under the common law as foreign officials who were sued in their official capacity for acts conducted in their official capacity. Under the common law on sovereign immunity, the Court's inquiry ends here. See Matar v. Dichter, 563 F. 3d 9, 14 (2d Cir. 2009) (affirming dismissal of a suit against a former head of the Israeli Security Agency for whom the United States submitted a Suggestion of Immunity as the official was “immune from suit under common-law principles that pre-date, and survive, the enactment of [the FSIA]”).

Rosenberg v. Lashkar-e-taiba in 2013 (Continuation)

United States views on international law [1] in relation to Rosenberg v. Lashkar-e-taiba: Plaintiffs argue that the United States' determination as to defendants Pasha and Taj is not controlling. Plaintiffs contend that courts should afford a different level of deference to the United States' determinations depending upon whether individual defendants are shielded from civil liability under head of state or foreign official immunity. Plaintiffs do not appear to question the well settled authority that courts should afford “absolute deference” to the United States' determination that an individual defendant is protected from civil suit by head of state immunity. (Pls.' Resp. at 2.) As Plaintiffs recognize, it is the province of the Executive Branch to determine whether an individual is entitled to immunity as a sitting head of state because that determination “rests on a defendant's status as the representative of the sovereign.” (Id. at 2 n.1.) However, Plaintiffs maintain that “there is no equivalent constitutional basis suggesting that the views of the Executive Branch control questions of foreign official immunity” as such immunity derives from the official's specific conduct at issue on behalf of the sovereign and not the individual's status as the sovereign. (Id. at 2 (quoting Yousuf v. Samantar, 699 F. 3d 763, 773 (4th Cir. 2012).)

More about Rosenberg v. Lashkar-e-taiba

In making this status and conduct based distinction with respect to foreign official immunity, Plaintiffs posit that, when a foreign official, who is only entitled to conduct based immunity, violates a jus cogens norm of customary international law, the foreign official is not acting in official or state capacity, as no state has the authority to engage in such conduct. (Pls.' Resp. at 2-5.) According to Plaintiffs, Pasha and Taj are not immune from these actions because their specific acts at issue—their alleged involvement in terroristic acts and summary executions of civilians—are classic examples of jus cogens violations and, because they are foreign officials and not sitting heads of state, the court is free to make its own determination as to whether they are immune. (Id. at 2.)

Development

Plaintiffs' proposed conduct and status based distinction is a complicated and novel issue of law. Indeed, as set forth more fully below, a circuit split has emerged. The Fourth Circuit recently noted that “[t]here has been an increasing trend in international law to abrogate foreign official immunity for individuals who commit acts, otherwise attributable to the State, that violate jus cogens norms . . . .” Id. at 776. “American courts have generally followed the foregoing trend, concluding that jus cogens violations are not legitimate official acts and therefore do not merit foreign official immunity but still recognizing that head-of-state immunity, based on status, is of an absolute nature and applies even against jus cogens claims.” Id. (summarizing cases). The Fourth Circuit concluded that, “under international and domestic law, officials from other countries are not entitled to foreign official immunity for jus cogens violations, even if the acts were performed in the defendant's official capacity.” Id. at 777-78 (denying former foreign official's motion to dismiss based on foreign official sovereign immunity “[b]ecause this case involves acts that violated jus cogens norms . . . we conclude that [the foreign official] is not entitled to conduct-based official immunity under the common law, which in this area incorporates international law”).

Details

However, the exception to foreign official immunity that the Fourth Circuit announced in Yousuf is not recognized in this Circuit. Indeed, in Matar, the Second Circuit reached the opposite conclusion, holding that “[a] claim premised on the violation of jus cogens does not withstand foreign sovereign immunity.” Matar, 563 F. 3d at 15. In reaching that result, the Second Circuit affirmed its prior holding that there is no jus cogens exception to the FSIA, see Smith v. Socialist People's Libyan Arab Jamahiriya, 101 F. 3d 239, 242-45 (2d Cir. 1996) (rejecting the argument that “a foreign state should be deemed to have forfeited its sovereign immunity whenever it engages in conduct that violates fundamental humanitarian standards”), and further expanded upon that holding to reject such an exception to the common law on foreign official immunity. Matar, 563 F. 3d at 14-15.

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While the Fourth Circuit's approach would allow Plaintiffs to proceed to the merits of their claims, rather than succumbing to dismissal on a procedural ground, this Court is bound by the law of this Circuit. Moreover, it is uncertain whether Yousuf will have enduring precedential value in the Fourth Circuit, as the defendant in that case, who was denied foreign official immunity, has a petition for a writ of certiorari pending before the Supreme Court. See Petition for Writ of Certiorari, Samantar v. Yousuf, No. 12-1078, 2013 WL 836952 (Mar. 4, 2013). Accordingly, the claims against Pasha and Taj are dismissed without prejudice. If the Supreme Court grants certiorari in Samantar v. Yousuf, and affirms the Fourth Circuit's exception to foreign official immunity, Plaintiffs may move to reinstate their claims against defendants Pasha and Taj.

Resources

Notes

  1. Rosenberg v. Lashkar-e-taiba in the Digest of United States Practice in International Law

Resources

Notes

  1. Rosenberg v. Lashkar-e-taiba in the Digest of United States Practice in International Law

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