Supreme Court Rejects Statutory Immunity for Foreign Torturers; U.S. Asks Court Not to Take Medical Experimentation Case

There have been two significant positive developments for human rights law at the U.S. Supreme Court in the past few days: the high court rejected an accused torturer's argument that he was protected by the Foreign Sovereign Immunities Act, and the U.S. government asked the court to decline to hear a case involving nonconsensual medical experimentation in a Nigerian drug trial.

First, the big news: the Supreme Court's unanimous decision in Yousuf v. Samantar is a tremendous victory for efforts to hold human rights abusers accountable, and in particular for the Center for Justice and Accountability (CJA), the organization that is litigating the case.  CJA represents victims of torture and extrajudicial killing in Somalia who sued Mohamed Ali Samantar, the former Somali Prime Minister and Defense Minister.  They sued under both the Alien Tort Statute and the Torture Victim Protection Act (TVPA).  Despite the fact that the TVPA specifically allows suits in U.S. courts for state-sponsored torture, Samantar argued that, because he had been a foreign official at the time, he was immune from suit under the Foreign Sovereign Immunities Act (FSIA).

The FSIA is a law that defines the immunities of foreign governments in U.S. courts; it's the reason that ERI could not sue the Burmese military regime itself over the Yadana pipeline.  Even though nothing in the law states that foreign officials have immunity, some courts have still found that the FSIA applied to individuals in addition to governments.  But the Supreme Court unanimously rejected this interpretation, finding that the FSIA simply does not apply to individuals.

The decision does not mean that the case is over, however.  The Supreme Court did suggest that "common law" immunity--that is, immunity created not by a specific law, but by the courts themselves--might apply.  So the next battle will be to show the courts that gross violations of human rights should not be entitled to immunity under any interpretation.  This position was argued to the Supreme Court in an amicus brief prepared by Harvard Law School's International Human Rights Clinic, which ERI signed.

The second development is less high-profile, but also represents a victory of a sort.  In Abdullahi v. Pfizer, a drug company is charged with experimenting on Nigerian children through a secret drug trial.  In 1998, the experimental drug Trovan was given to sick children without authorization from their parents, and Pfizer allegedly orchestrated this testing; Trovan was later pulled from the market after it was found to cause acute liver failure.  Last year the U.S. Court of Appeals for the Second Circuit allowed an Alien Tort Statute case against Pfizer to proceed, finding that its alleged actions violated the international law prohibition against nonconsensual medical testing, a prohibition that dates back to Nazi atrocities involving human experimentation.

Pfizer has applied to the Supreme Court to overturn the Second Circuit's decision.  The court asked the U.S. government for its views on Pfizer's petition; the government's views are often strongly influential in determining whether the Supreme Court will hear a case.  Under the Bush administration, the government had taken a very aggressive stance against ATS litigation, repeatedly trying to get cases thrown out on a variety of grounds.  But the recent submission by the Obama administration may signal a return to the restrained approach taken by prior administrations.

The government argued that the Supreme Court should not hear the Pfizer case, because there was nothing particularly radical in the Second Circuit's opinion, and because it did not represent any departure from what other courts of appeals have done.  The government also rejected the argument of some business interests that the Supreme Court should hear the case in order to decide that corporations can't be sued under the ATS.

The Obama administration has yet to fully back away from the radical anti-human rights agenda of the Bush administration, but the Pfizer brief is a step in the right direction.