Libya Tribune

By William Ford

Three lawsuits in U.S. federal court represent an inflection point in the global effort to hold Libyan war criminals legally accountable for torture and extrajudicial killings.

.PART ONE

Since February 2018, Libyan nationals have filed three lawsuits in U.S. court demanding a jury trial on allegations that Khalifa Hifter, the commander of the Libyan National Army, is responsible for the torture and extrajudicial killing of the plaintiffs’ deceased family members.

The lawsuits, filed in the U.S. District Court for the Eastern District of Virginia, seek millions of dollars in damages under the Torture Victim Protection Act (TVPA), the Alien Tort Statute and several provisions of Virginia state law.

At their core, the suits ask not just whether Hifter ordered, aided or knew about the war crimes that allegedly occurred. They also ask whether American law can do what Libyan domestic law and international law, so far, could not: hold a warlord accountable for past atrocities.

To date, Hifter—a dual U.S.-Libyan citizen who owns property in Virginia—has responded to only two of the three lawsuits, and his lawyers have fought to prevent the cases from going to trial.

On Aug. 20, the warlord moved to dismiss the suits on jurisdictional grounds. And on Sept. 29, Judge Leonie M. Brinkema held a telephonic hearing on the dismissal motions.

Over the course of roughly 50 minutes, Brinkema addressed the parties’ arguments with a swift sense of purpose, ruling on the questions before her in rapid succession.

The judge dismissed the plaintiffs’ state-law claims and their claims under the Alien Tort Statute, a law that gives federal courts jurisdiction over civil suits brought by noncitizens alleging violations of international law.

She dismissed Hifter’s sons from the litigation, whom the plaintiffs had named as defendants in one of the cases. She also rejected Hifter’s argument that the lawsuits should be dismissed for improper service.

And although Brinkema determined that the plaintiffs’ TVPA claims contained enough evidence at this stage to merit moving forward to discovery, she ruled that the parties could not begin discovery yet.

Instead, the judge ended the hearing by issuing a 60-day stay in the proceedings to allow the State Department to weigh in on whether Hifter deserves head-of-state immunity and whether the lawsuits might interfere with the department’s ongoing diplomatic efforts to bring an end to the Libyan civil war.

The judge vowed to revisit the question of whether to allow the TVPA claims to move forward after those 60 days have passed, regardless of whether the State Department weighs in.

The hearing and Brinkema’s issuance of a stay represent a critical juncture not only for the three cases before Virginia’s Eastern District court but also for the broader effort to hold Libyan war criminals legally accountable for their transgressions.

To date, that effort has had little success. The Libyan civil war has rendered the country’s judicial system barely functional, and armed militias frequently target judges, defense lawyers and prosecutors. This has left Libyans without domestic legal remedies for the crimes they have endured.

International legal efforts to punish Libyan war criminals have fared little better. Although the U.N. Security Council voted unanimously in February 2011 to give the International Criminal Court (ICC) a mandate to investigate the situation in Libya, that investigation has yielded only five arrest warrants.

Without the means to make arrests in Libya, the ICC’s Office of the Prosecutor has been unable to bring any defendants into custody. The prosecutor’s attempt to build and litigate an international criminal case, in short, is foundering.

Enter the Eastern District of Virginia lawsuits—made possible by a 1991 law Congress enacted to uphold America’s obligations under the U.N. Charter and the Convention Against Torture.

That law, the Torture Victim Protection Act, is a rarity. It allows U.S. federal courts to hear cases brought by foreign nationals concerning conduct that occurred on foreign soil.

Specifically, the act creates two causes of action: one for the legal representative of an individual killed extrajudicially and another for an individual subjected to torture. Those individuals—the claimants—can be U.S. citizens or foreign nationals.

And the defendant whom the act permits the claimants to hold civilly liable for torture or extrajudicial killing is, in the words of the TVPA, an individual who acts “under actual or apparent authority, or color of law, of any foreign nation.”

While the TVPA is unusual in that it gives federal courts subject-matter jurisdiction over extraterritorial claims against defendants, an American court still must be able to exercise personal jurisdiction over a defendant to hear a TVPA case.

In other words, the plaintiffs must demonstrate that the defendant has sufficient contacts with the U.S. district in which a federal court sits to justify that court’s asserting its authority over the defendant.

The plaintiffs must also serve the defendant in a manner that comports with both statute and the Federal Rules of Civil Procedure to give the court personal jurisdiction over that individual. That task can be quite difficult if the case involves a foreign defendant who does not live in the United States.

After clearing these hurdles, TVPA plaintiffs must make two additional showings before a court will examine the merits of a claim. First, the plaintiffs must demonstrate that they exhausted all “adequate and available remedies in the place in which the conduct giving rise to the claim occurred.”

U.S. courts consider the very filing of a TVPA lawsuit to be evidence that the courts in a plaintiff’s home country could not have fairly adjudicated the claim. The defendant bears the burden of rebutting that presumption.

And second, the plaintiffs must show that the alleged torture or killing occurred within the 10-year statute of limitations for a TVPA claim.

To plead a claim successfully under the act, the plaintiffs must prove that the defendant is liable for conduct that meets the statutory definitions of extrajudicial killing or torture.

The TVPA defines extrajudicial killing as “a deliberated killing not authorized by a previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”

The act specifies, however, that no killing “lawfully carried out under the authority of a foreign nation” constitutes an extrajudicial killing.

The statute further states that torture refers to “any act, directed against an individual in the offender’s custody or physical control, by which severe pain or suffering (other than pain or suffering arising only from or inherent in, or incidental to, lawful sanctions), whether physical or mental, is intentionally inflicted on that individual.”

Courts have held that plaintiffs must offer detailed accounts of specific incidents of torture to satisfy the act’s definition.

In Mohammad v. Bin Tarraf, for example, the U.S. Court of Appeals for the Second Circuit held that the plaintiff’s allegations that senior Emirati government officials subjected him to “threats, harassment, discriminatory treatment, confiscation of and occupation of property, and imprisonment” were “legally insufficient” to meet the statutory definition of torture.

In the three cases now before Virginia’s Eastern District court, the plaintiffs allege that soldiers and officers subordinate to Hifter in the Libyan National Army (LNA) subjected the plaintiffs’ family members to torture and extrajudicial killings.

They submit that Hifter is liable for these crimes. And they allege that Hifter acted under the authority of the Libyan government because Libya’s Tobruk-based House of Representatives appointed him commander of the LNA.

Unlike other TVPA cases, two factors make it clear that the Eastern District can exercise personal jurisdiction over Hifter: The Libyan warlord enjoys U.S. citizenship and owns property in Virginia.

During the Reagan administration, Hifter turned on Col. Muammar Qaddafi, the former Libyan dictator, and became an asset for the CIA. While working for the agency, Hifter obtained American citizenship and took up residence in Virginia’s Eastern District.

The plaintiffs allege that Hifter’s Virginia properties include a residential condominium in Falls Church, an estate in Keysville and a single-family home in Vienna.

Although the plaintiffs’ filings do not include an estimate of the net worth of Hifter’s properties, one complaint alleges that the LNA commander has invested $8.5 million in property in the Eastern District since 2014 alone.

If the plaintiffs prevail on their claims and secure the millions of dollars in damages they seek, Hifter may lose these holdings. Both the scope and specificity of the plaintiffs’ allegations, which concern atrocities the LNA commander orchestrated over a roughly five-year period, make that outcome eminently possible.

to continue

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William Ford holds a bachelor’s degree with honors from the College of the Holy Cross, where he majored in international studies. He is a former research intern at Lawfare and at the Brookings Institution.

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