Dakota Student article on Prof. Gordon's filing of Amicus Brief

Gordon to contribute amicus curiae UND professor files brief providing valuable human rights insight to the Supreme Court.

Dakota Student, February 12, 2010 - online article
by Michael Lopez

In what is a first for the UND School of Law, professor Gregory Gordon has filed an amicus curiae brief with the Supreme Court of the United States, in the case of Samantar v. Bashe Abdi Yousuf (Samantar).

The amicus curiae brief, which translated means "friend of the court," is filed by individuals or organizations not party to a case, but who instead seek to offer points of clarification on law, or other issues raised in the case, that is often of great help to the Supreme Court in deciding matters of significant Constitutional importance.

The Samantar case involves victims who allege that gross human rights violations occurred at the direction of Mohamed Ali Samantar, a former Somalian prime minister. Originally filed in Federal District Court, the case was dismissed after Samantar argued that the Foreign Sovereign Immunities Act (FSIA) immunized him for official actions committed as a representative of Somalia's government. The Fourth Circuit Court of Appeals reversed that decision however, allowing the suit to proceed. Samantar appealed to the Supreme Court, the nation's highest appellate court, which granted his petition, agreeing to hear the case.

Historically individuals could not sue foreign governments. The FSIA, enacted by Congress in 1976 to codify the immunities granted to foreign states, acknowledges this immunity, and provides limited exceptions to it. Gordon says that his amicus curiae brief to the high court offers a "statutory interpretation of the FSIA … By looking more closely at the text of the statute, and subsequent legislation," said Gordon, "[the brief] sheds light on what Congress must have intended with the FSIA. Our brief tries to give the Court the larger historical context in which Congress would have passed the FSIA in 1976."

Gordon, who was a former prosecutor with the International Criminal Tribunal in Rwanda, and now teaches courses on international law, international human rights law, criminal law, and is Director of UND's Center for Human Rights and Genocide Studies, says that context is rooted in the United States' involvement in shaping international law. "We want to show that international law, which the United States played a large role in shaping through the Nuremberg trials clearly rejects the sovereign immunity defense for gross human rights violations by individuals."

The United States' status as a haven for victims of human rights violations seeking justice was confirmed in the now legendary 1980 Filártiga v. Peña-Irala case. That case was brought by the parents of Joelito Filártiga, who alleged that Peña-Irala, a police chief, had been responsible for the kidnapping, torture, and death of their son. Unable to obtain justice in the courts of Paraguay, the parents of Joelito came to the United States, where they filed a private, civil lawsuit under an obscure law known as the Alien Tort Statute.

The Alien Tort Statute was enacted as part of the Judiciary Act of 1789, and provides that a non-US citizen shall have the right to bring a lawsuit in the United States for an injury committed in "violation of the law of nations." There is little history to explain its context, and at the time the suit was filed there was uncertainty as to the outcome of the case. But the Second Circuit Court of Appeals, in reversing the decision of the lower federal court held that "the right to be free of physical torture" is part of the law of nations, paving the way for the Filártigas to continue their case, which they ultimately won.

Filártiga, says Gordon, helped to reaffirm "the United States as a leader in championing the use of universal civil jurisdiction to prosecute human rights violators."

Now a sense of urgency hangs over the United States' role in human rights law with the Samantar case pending before the Court. A finding that the FSIA precludes a lawsuit against Samantar would, Gordon says, "undo much of the progress that has been made since the Second Circuit decided the Filártiga case in 1980."

Congress in recent years has endorsed a steady progression towards prosecuting gross human rights violations. In 1991 Congress passed the Torture Victim Protection Act (TVPA), which specifically authorized private individuals to file a civil lawsuit against government officials who commit violations of human rights. As well, the world community acted to protect against gross human rights violations with the creation of the International Criminal Court (ICC). Established in 2002, the ICC exists to prosecute the most serious violations of human rights, including genocide and crimes against humanity.

The question now before the Supreme Court, however, is whether the FSIA shields Samantar from civil liability.

It would be a mistake, Gordon argues, to allow this immunity to attach to gross violators of human rights. "This case is monumental," said Gordon, "because if the Court finds that the FSIA applies to individuals, then the Alien Tort Statute, and the TVPA, and the cases currently pending under those statutes, as well as future ones, would all risk being compromised." And if the Supreme Court finds that the FSIA applies to Samantar, because the alleged violations of human rights occurred while he was a member of a foreign government, then the victims of the crimes may never achieve justice. "Those lawsuits under the Alien Tort Statute, and the TVPA, cases like this one, exist because there is no other place for the victim to go. Somalia is a failed state. Its courts can provide no redress. There is no international tribunal set up to deal with this. The ICC's jurisdiction only goes back to 2002, and these atrocities were committed in the 1980's," said Gordon.

Working closely with student researchers, Amber Hildebrandt, and Joseph Mandala, of the School of Law, Gordon wrote the brief with the knowledge that it might be decided by a bare majority of the Court. "I sense that the decision will be close," said Gordon, "and that it may end up turning on the swing vote of Justice Kennedy. And I wrote the brief with Justice Kennedy in mind."

While the chance to file a brief with the highest court in the United States was a "career highlight," says Gordon, it was also an opportunity to do something extraordinary for the victims of human rights as well as the UND community. "I had students who got involved, and it was a great educational experience for them. And I think that this brief has helped raise awareness about human rights on our campus and in our community," says Gordon, "and it shows that the University of North Dakota is positively involved in vital matters affecting our nation, and the world."