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In response to a class action suit filed by a human rights group called “Sikhs For Justice,” the district court of the Eastern District of New York issued a summons to India’s Congress Party President Sonia Gandhi for her alleged role in shielding from justice those involved in the 1984 anti-Sikh riots. Under US law, specifically the Alien Tort Statute (ATS), also called the Alien Tort Claims Act (ACTA), and the Torture Victim Protection Act (TVPA), cases may be brought against other foreigners for violations of the laws of nations even in foreign jurisdictions.

The ATS, passed in 1789 as part of the First Judiciary Act, has for most of its history had an insignificant role. Jurisdiction has been decided only twice until 1980 under this law, once in 1795 and once in 1961. In fact, in 1975, a US court referred to the statute as a legal Lohengrin and cautioned that the ATS’ reference to the law of nations must be interpreted very narrowly if it is not to violate Article III of the US constitution. It was only in 1980 in Filártiga v. Peña-Irala that the ATS was revived when two Paraguayans were allowed to sue a former Paraguayan official for torture and murder of their family member while in Paraguay. The court ruled that the case was brought by an alien, was a tort, and violated the law of nations. Since the law of nations is customary and customary international law has always been a part of US federal common law, US courts had jurisdiction over the case. It is important to note that this case was brought against an actual perpetrator of a brutality, unlike in the case of Sonia Gandhi.

In 2004, Sosa v. Alvarez-Machain allowed the US Supreme Court (SCOTUS) to consider the scope of the ATS. The Court held that the statute authorised federal courts to recognise private damages for a very limited category of universally accepted customary law. This was because a broad reading of common international law would raise questions regarding: 1. the change in the conception of common international law since 1790; 2. the denial of the existence of general common law in Erie R. Co. v. Tompkins; 3. why private action is decided by the judiciary and not the legislature; 4. the fallout on international relations of the United States, and 5. whence the mandate to seek out and form new laws of nations came. Given the conservative position of Sosa on the interpretation of the ATS, it is unlikely that the shielding of alleged criminals at least 20 years after the fact will be taken seriously.

In April 2013, SCOTUS ruled unanimously in Kiobel v. Royal Dutch Petroleum against the extraterritorial presumption of US law, as was recently articulated in Morrison v. National Australia Bank. The case essentially involved a group of Nigerians suing a Nigerian corporation and its Dutch and British corporate parents; the plaintiffs claimed that the corporation was providing food and transportation to government forces that beat, raped, tortured, and killed protesters opposing the corporations environmentally damaging actions. Although the conclusion the nine justices reached was the same, four argued that ATS applied only when: 1. the defendant was American; 2. the event took place in US jurisdiction; or 3. the conduct substantially affected US interest. The other five justices argued that the case did not come under ATS because Sosa urges extreme caution because of the potential for unwarranted judicial interference in foreign policy. Thus, relief cannot be granted when the alleged violations happened outside the jurisdiction of the United States. These methodologies allow for considerably different interpretations, but none that would affect any case against Sonia Gandhi since both views converge on a presumption against extraterritoriality.

The Kiobel ruling seems to be the death knell for human rights activists’ broad application of the ATS. However, the US Congress passed the TVPA in 1992 in a move that can only be taken to mean an express ratification of the understanding on Filartiga. Yet the TVPA also has its restrictions – the law applies only to individuals who were acting in an official capacity and provides relief against torture and extrajudicial killings only, leaving out a plethora of other human rights violations such as genocide and rape. Thus, the TVPA applies to Sonia Gandhi’s official capacity only for 15 of the 30 years since the tragedy of 1984 – as a member of the Lok Sabha, from Amethi between 1999 and 2004, and from Rae Bareli since then. However, as per the wording of the TVPA, the accused in this summons appears to have no role in the 1984 riots.

The TVPA and the ATS usually work in conjunction with each other; however, the TVPA explicitly restricts itself to extrajudicial killings and torture, and the ATS, after Kiobel, seems to restrict its scope and jurisdiction significantly since Filartiga. The summons against Sonia Gandhi under these statutes is thus twice removed – she has been accused of shielding, not perpetrating the crimes, and given that no ruling has found those Sonia Gandhi allegedly shields to be guilty, she is shielding those only alleged to be guilty. Prima facie, it appears very unlikely that a serious case can be mounted against the Congress Party president barring the broadest scope of the ATS.

Beyond the legal (de)merits of the case, the idea that a state’s jurisdiction can extend indefinitely violates the fundamental principle of sovereignty among nations, an ironic situation given that the ATS advocates protecting those very laws it violates. This limitation of sovereignty is adhered to not only by other nations but also every other law of the United States. One would be hard-pressed to find a case wherein SCOTUS has held people beyond the jurisdiction of the United States subject to its laws.

From a political perspective, ATS spells disaster in international relations. Presently, only the United States has a law whereby foreigners could be held accountable for actions they committed outside the jurisdiction of the United States by other foreigners. If this principle were to be expanded to other states, it would not be difficult to imagine lawsuits against Henry Kissinger, George W Bush, Tony Blair, Ariel Sharon, and dozens of other leaders. For example, the arrest of Augusto Pinochet in 1998 sent shockwaves throughout the international legal community. Although the Nuremberg trials established a precedent in 1945 that some crimes were so egregious that they merited universal jurisdiction, few states have put aside their realpolitik long enough to render these principles a reality. From this perspective, the only bar to a state suing the leader of another state is their differential in power.

From India’s perspective, any such arrest is an affront to national sovereignty. Given India’s judicial and political realities, the SFJ’s position is not difficult to sympathise with. However, the notion that India will allow its leaders to be tried like common criminals by foreign powers is destabilising, demoralising, and a matter of national shame; moreover, it is unlikely to be met with reciprocity from other states. It is worth repeating again that Sonia Gandhi’s alleged wrongdoing is nowhere near the magnitude of crimes the ATS or TVPA was intended for, and the suit should hold little water.

In some ways, this event is a lesson to those who have in the past run to the United States with India’s domestic problems, be their actions displayed via epistolary genius or in the orchestration of an effort to deny recognition – visas, magazine covers, speaker’s platforms – to other elected Indian officials. Sonia Gandhi is a polarising figure in Indian politics and there is surely much schadenfreude in some corners, but as one nation, India must strenuously object to the treatment of its leaders thus.

This post appeared on Daily News & Analysis on September 06, 2013.