US Attorney for the Southern District of New York, Preet Bharara, has once again gone to bat for Prime Minister Narendra Modi regarding the immunity the Indian leader enjoys from lawsuits brought against him in the United States.
Bharara’s office on Wednesday, filed a supplemental brief in further support of its earlier suggestion of immunity for Modi that was filed on October 19, knocking down the challenge from the American Justice Centre that had argued that this was not binding on the court and that the ‘human rights violations’ committed by Modi before becoming prime minister and as chief minister of Gujarat are not immune.
“The US Federal Court has jurisdiction to hold Modi accountable under the Alien Tort Claims Act and Torture Victims Act," Gurpatwant Singh Pannun, legal adviser to the AJC had argued.
"The selective and arbitrary approach of the US Department of Justice on the issue of immunity to foreign leaders will be the key factor in challenging the immunity to Prime Minister Modi,” he had asserted.
But Bharara said on Wednesday that “in their opposition to the suggestion of immunity, plaintiffs raise a series of arguments, none of which has any merit.”
“First, contrary to plaintiffs’ argument, the Foreign Sovereign Immunities Act, has no relevance to the United States’ immunity determination in this case,” he said, and while acknowledging that “plaintiffs are correct that the FSIA does not cover the immunity of foreign officials, it does not follow that foreign officials enjoy no immunity in US courts.”
Bharara’s supplemental brief stated that “the immunity of foreign heads of state and heads of government is governed not by the FSIA but by a non-statutory regime under which the Executive Branch identifies the controlling principles of foreign official immunity, taking into account the applicable international law.”
He argued, “In enacting the FSIA, Congress clearly intended to supersede the common-law regime for claims against foreign states, but there is nothing in the statute’s origin or aims to indicate that Congress similarly wanted to codify the law of foreign official immunity.”
“Congress instead left in place the practice of judicial deference to the Executive for immunity determinations with respect to foreign officials,” Bharara said, and noted, “Accordingly this court and others have uniformly dismissed cases brought against sitting foreign heads of state and government as to whom the United States has filed a suggestion of immunity.”
His office further said that the “plaintiffs incorrectly argue that defendant Modi’s immunity does not extend to acts performed before he assumed office as Prime Minister,” but reiterated, “There is no merit to this contention.”
“The fact that the complaint alleges unlawful conduct before defendant Modi became prime minister does not render ineffective the Executive Branch’s assertion of immunity. Under customary international law principles accepted by the Executive Branch, a sitting head of state’s immunity is based on his status as the incumbent office holder, not his conduct, and it renders the head of state immune from the jurisdiction of the court while he or she is in office, without regard to the content of the complaint.”
Thus, Bharara said, “It is irrelevant that Defendant Modi was not the head of government at the time of the events alleged in the complaint.”
“Third, contrary to plaintiffs’ argument, neither the Alien Tort Statute, nor the Torture Victim Protection Act overrides the immunity of foreign officials,” he said.
Bharara said, the plaintiffs contention that “international law does not allow for immunity for alleged violations, but the executive has concluded that Prime Minister Modi is entitled to immunity, and the executive’s immunity determination has taken into account applicable international law principles relating to foreign official immunity resolved by the executive, the courts have deferred to the executive’s conclusion that a head of state or head of government defendant is immune, regardless of whether the defendant was alleged to have committed violations.”
He stated, “Finally, the plaintiffs irrelevantly discuss the act of state doctrine, which the United States has not invoked,” and pointed out, “For the act of state doctrine to be triggered, the relief sought or the defence interposed must require a federal court to declare invalid a foreign government's official act.”
Bharara said, “Here, the United States has suggested the immunity of Prime Minister Modi based solely on his status as head of government, and there is no need for the court to decide whether Modi’s alleged actions fall within the act of state doctrine.”
“This case presents no question regarding the proper scope of the act of state doctrine, and the act of state doctrine is not relevant to the executive’s suggestion of immunity,” he added.
Consequently, Bharara called on the court, “For the reasons stated above and in its initial suggestion of immunity filed in this case, the United States respectfully submits that defendant Modi is immune in this action.”
On September 26, a senior White House official had that the summons issued against Modi by a New York court on the eve of his arrival to the US, for his alleged role in 2002 communal riots in Gujarat when he was the state’s chief minister would have no effect at all because he enjoys full immunity as a visiting head of state.
The official, briefing reporters on background in a teleconference call, asked about the summons against Modi issued on September 25 by the US Federal Court for the Southern District of New York on a civil lawsuit filed by the New York-based AJC, a non-profit human rights organisation, along with two survivors of the post-Godhra violence, said, “We are aware from press reports of the lawsuit filed against Prime Minister Modi yesterday in the Federal District Court of New York,” and that “while we cannot comment specifically on this lawsuit, I can tell you that as a general legal principle, sitting heads of government enjoy immunity from suits in American courts.”
Obviously prepared for the question, the official went on to say that “sitting heads of government also enjoy personal inviolability while in the United States, which means they cannot be personally handed over or delivered papers or summons to begin the process of a lawsuit.”
“In addition, as matters of treaty, heads of delegations to the United Nations General Assembly enjoy immunity while in New York to attend the UN events,” the official said.
When he filed the first brief in support of immunity for Modi on October 19, Bharara acknowledged, “The office of the legal adviser of the US Department of State has informed the Department of Justice that the Indian embassy has formally requested the Government of the United States to determine that Prime Minister Modi is immune from this lawsuit.”
