Post from Kanwar Vivswan, IV Year Student, National Law University, Delhi.
Kanwar Vivswan (member team, runners up at North India Rounds Stetson International Environment Law Moot) has an avid interest in International Law and is giving his opinion on what could be the legal position in the present case where summons have been issued against the Indian PM Narendra Modi during his visit to US as a State Guest.
Background
In 2005, the United States denied Mr. Modi a visa whilst he
was Chief Minister of Gujarat. Today, Mr. Modi, as the Prime Minister of India,
being a state guest of the United State of America still faces challenges in
the land of the free. Amidst the preparations for the Indian PM's visit, news reports came that a New York federal District Court has issued summons to Mr. Modi on 25th
September, 2014. The summons were issued pursuant to a complaint by the American
Justice Centre [AJC], an American NGO, that sought compensatory and punitive
damages for “crimes against humanity; cruel, inhuman, or degrading
treatment or punishment; extrajudicial killing; wrongful deaths; negligence;
public nuisance; battery; and intentional infliction of emotional distress” allegedly
perpetrated by Mr. Modi.[1]
The complainant states that under international law, Mr.
Modi can be prosecuted for the said crimes in the US under the principle of
universal jurisdiction, whereby a state may exercise jurisdiction over serious
crimes (such as genocide, torture and war crimes) even if there exists no
connection, based on territory or nationality.[2]
In this post it will
be argued that the complainant has failed to establish in the lawsuit whether civil universal jurisdiction (under which damages
are being claimed in this case) has the same scope as criminal jurisdiction
in enforcing these international law norms. In this regard, we argue that
the summons against Mr. Modi is not sustainable under international law because
of the following reasons:
A. Alien Tort Statute
The present suit has been filed under the Alien Torts
Statute [ATS] which provides that “[t]he district courts shall have original
jurisdiction of any civil action by an alien for a tort only, committed in
violation of the law of nations or a treaty of the United States.”[3] Passed
as a part of the Judiciary Act of 1789, the ATS in the early 1980s was read by
the US courts to cover cases involving violations of universally recognized
obligatory norms of international law.[4] The
United States Supreme Court recently reexamined the ATS in Kiobel.[5]
Noting that all laws had a presumption against extra-territoriality,[6]the
Court concluded after looking at the history[7]
and text of the statute,[8]
that there exists no evidence to rebut that presumption in the case of the ATS.[9]The
ATS was enacted for protection against three primary offences as identified by
Blackstone: the violation of safe conducts, infringement of the rights of
ambassadors, and piracy.[10]
The negative policy implications of extra-territorial application of the ATS was
highlighted by states such as UK, Australia and Switzerland who cautioned that
broad assertions of extra-territorial jurisdiction under ATS would expose
foreign nationals to uncertain and costly proceedings in foreign courts.[11]
Some believe that universal civil jurisdiction may become a
rule of customary international law in due course of time. But it has not yet
done so and therefore cannot be accorded the same status as universal criminal
jurisdiction. Hence, Mr. Modi can’t be prosecuted under the ATS.
B. Torture Victim Protection Act
The complainant has also claimed jurisdiction under the
Torture Victim Protection Act [TVP Act]. The TVP Act was enacted in 1992
shortly after the ATS. It provides civil remedies only for two international
law torts viz. torture and extra judicial killings. The United States enacted this
law in order to fulfill its obligations under the Convention against Torture
which requires states to prosecute suspected torturers found within their
territory. The TVP Act allows for exercise of jurisdiction without the traditional
requirement of proving a nexus with the United States.
The application of the TVP Act would be untenable in this
case. The Act clearly requires that first, the suit should not be time barred and
secondly, the complainant must exhaust local remedies before pursuing a suit in
U.S. courts. In the instant case both these requirements have not been
fulfilled.
The complaint concerns the role of Mr. Modi in 2002 riots
whereas they have brought forth the complaint after 12 years, in September,
2014. The suit is time barred and hence
not maintainable because the TVP Act explicitly provides that-“No action shall
be maintained under this section unless it is commenced within 10 years after
the cause of action arose.”[12]
On the second point the relevant provision of the Act states
that:
“A court shall decline
to hear a claim under this section if the claimant has not exhausted adequate
and available remedies in the place in which the conduct giving rise to the
claim occurred.”[13]
It is to be noted that the Special Investigation Team which was constituted by the Supreme Court of India, had concluded that it had not found sufficient evidence to justify placing Modi on trial. Zakia Jaffri a long standing activist, who lost her husband in the riots, placed an application before the Gujarat High Court protesting the conclusions made by the report as well as its validity. The matter remains sub-judice. Therefore, the available remedies in the place in which the conduct has occurred have not been satisfied.
C.
Immunity as a UN Delegate
Section 11(a) of the Convention on the Privileges and
Immunities of the United Nations makes it clear that while performing mandated functions
and during the journey to and from the place of meeting, the representatives of
members to the UN shall enjoy immunity from legal process of every kind including arrest or detention. Section
14 of the convention explains that the rationale behind such immunity; is to
safeguard the independent exercise of the functions of representatives. Therefore,
Mr. Modi being a delegate of a member state of the UN will be cloaked under
this convention’s immunity. The United States Government confirmed its
commitment to this stance, when it said that delegates to
the UN General Assembly enjoy immunity while in New York to attend the UN
event.[14]
D. Immunity as a State Head
Immunity from prosecution is available to heads of states under
customary international law. There are two types of immunities available: ratione personae and ratione
materiae. Ratione personae provides civil
and criminal immunity to heads of state for acts done in both, a private as
well as official capacity.[15]It
is available irrespective of whether the acts were performed before or during
the term of office. Since ratione
personae is based on the office of the individual concerned, it is only
available for the duration of the individual holding office. Whereas, in case
of ratione materiae, immunity the
protection is available even after the person ceases to perform acts of the state
provided that the acts were done in an official capacity. The implication of
this is that even when an individual ceases to hold a post he loses his
immunity ratione personae but
is still protected under the ratione materiae immunity. However, it is
to be noted that there has been an evolving rule of customary international law
that excludes the application of ratione materiae in the case of
international crimes.[16]
As was noted by the ICJ in its decision in Yeodia/Arrest Warrants,[17] heads
of state enjoy personal immunity from being tried in foreign courts on the
ground that the immunity ratione personae bars all criminal and civil
proceedings. Further, there is a general acceptance that the heads of the
governments also enjoy the same kind of immunity as the head of the states..[18]
Therefore, the summons is in violation of Mr. Modi’s ratione personae immunity.[19]
Conclusion
In our opinion, the issuance of the summons by the Federal Court of New York
is not only sans jurisdiction, but also precluded by the immunities afforded to
Mr. Modi. However, the summons and its accompanying rejection by the United
States Government, is particularly interesting considering the United States in
2005 denied Mr. Modi a visa on similar grounds. This entire episode sheds light
upon the pressures of international relations, and how international relations
interact with international law.
The author would like to thank Sanjeevi Seshadri, his batchmate, for giving his invaluable insights on the topic.
[1]http://thediplomat.com/2014/09/us-federal-court-issues-summons-against-narendra-modi/
[2]
http://www.thehindu.com/multimedia/archive/02126/Class_lawsuit_agai_2126838a.pdf
[3]28
U.S.C. § 1350
[5]
133 S.Ct. 1659 (2013)
[6]P.2, Supra 5.
[7]P.8, Supra 5.
[8]P.9, Supra 5.
[9]
P.4,P.13,Supra 5.
[10]P.8 Supra 5.
[11]Sosa
v. Alvarez-Machain542 U.S. 692 (2004).
[12]§
2(c)28 U.S.C. § 1350 (2006).
[13]§
2(b)28 U.S.C. § 1350 (2006).
[14]
http://www.telegraphindia.com/1140927/jsp/frontpage/story_18878344.jsp#.VC6MZmeSw7U
[15]
Jones v Ministry of the Interior of the Kingdom of Saudi Arabia [2006] UKHL 26
[16]
Prosecutor v. Al Bashir (PTC Decision Pursuant to Article 87(7) of the Rome
Statute) ICC-02/05-01/0 9 (12
December 2011).
[17]
2002 I.C.J. 3
[18]
Jones v Ministry of the Interior of the Kingdom of Saudi Arabia [2006] UKHL 26
[19]
http://www.telegraphindia.com/1140927/jsp/frontpage/story_18878344.jsp#.VC6MZmeSw7U
