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 THREE

At the Sept. 29 hearing, Brinkema swiftly dealt with the issues before her. She dismissed the plaintiffs’ state law claims and their claims under the Alien Tort Statute.

In Kiobel v. Royal Dutch Petroleum Co., the Supreme Court held that claims brought under the Alien Tort Statute must “touch and concern the territory of the United States … with sufficient force to displace the presumption against extraterritorial application” of U.S. law.

Brinkema determined that because the alleged conduct in the plaintiffs’ suits occurred solely in Libya, that conduct failed to sufficiently “touch and concern” the United States as to displace the statute’s presumption against extraterritoriality.

She added that Hifter’s U.S. citizenship alone was not enough to satisfy the Kiobel standard.

The judge turned next to the al-Suyid plaintiffs’ allegations against Hifter’s sons, Khalid and Saddam, whom they named as defendants given the sons’ alleged role as LNA battalion commanders.

Because the plaintiffs’ complaint contained almost no information about the sons’ conduct, however, Brinkema dismissed Khalid and Saddam from the proceeding.

That left the plaintiffs’ claims under the TVPA, which Brinkema declined to dismiss for improper service of process.

Although the judge acknowledged that the plaintiffs’ service had some minor technical defects, she stated that the entire purpose of service is to provide the defendant with “notice and the opportunity to be heard.”

That Hifter clearly received notice of the suits and was able to retain counsel to defend himself satisfied, for Brinkema, the requirements of service and due process.

As for Hifter’s argument that the plaintiffs had failed to exhaust all adequate and available remedies in Libya, Brinkema rejected that contention outright, citing reports by Amnesty International and the U.S. State Department on the corruption and deep dysfunctionality of the Libyan judicial system.

Turning at last to the meat of the plaintiffs’ TVPA claims, Brinkema stated that the allegations contained enough information, at this stage, to merit their moving forward to discovery.

The judge singled out Hifter’s quote proclaiming that LNA opponents should be shown no mercy and that his men should take no prisoners as being of particular concern.

The judge also expressed doubt that Hifter deserves head-of-state immunity and indicated that she does not believe the cases raise a nonjusticiable political question.

The plaintiffs described Hifter’s assertion that he may enjoy head-of-state immunity as especially tenuous, given that the LNA commander is technically subordinate to the Tobruk-based House of Representatives.

The plaintiffs also point out that Libya has no unified government that Hifter could purport to be leading, and that the State Department has not filed a Suggestion of Immunity on Hifter’s behalf.

Despite her inclination to allow the lawsuits to move forward, however, Brinkema decided to stay the proceedings for 60 days to give the State Department an opportunity to express its position on both immunity and whether the suits will interfere with ongoing diplomacy.

If the department responds, Brinkema said, she would consider how that affects the suits. If it does not take a position, the cases will move forward to discovery.

But given that Hifter remains in Libya and that the violence there continues, discovery will be immensely difficult to conduct.

Brinkema acknowledged as much at the hearing, stating that she did not have “any idea” how that process would unfold. The judge added that in another TVPA case over which she presided, Yousuf v. Samantar, discovery lasted years.

Although the plaintiffs in Samantar ultimately prevailed on their allegations, the case serves as a sobering example of what may lie ahead for the Libyan plaintiffs. Samantar demonstrates that litigation in TVPA cases does not often consist of a linear march from jurisdictional hearing to discovery to trial.

And the case highlights the lengths to which TVPA defendants may go to delay the onset of trial and avoid confronting in court the terrible weight of the accusations against them.

In that case, which began in 2004, Somali plaintiffs alleged that Mohammed Ali Samantar was liable for extrajudicial killing, torture, arbitrary detention and other war crimes committed during the 1980s while he served as the Somali defense minister and later prime minister.

Samantar moved to dismiss the case on the ground that he enjoyed sovereign immunity under the Foreign Sovereign Immunities Act. The district court granted the dismissal and the U.S. Court of Appeals for the Fourth Circuit reversed in 2009.

In 2010, the Supreme Court upheld the circuit’s reversal, holding that only states, not individuals, are entitled to sovereign immunity. The Supreme Court then remanded the case to the district court to allow Samantar to assert his entitlement to other forms of common-law immunity.

Samantar obliged, suggesting next that he enjoyed head-of-state immunity and immunity for acts committed in his official capacity. In 2011, the district court rejected those arguments; and, in 2012, the Fourth Circuit affirmed.

That same year—more than seven years after the plaintiffs initially filed suit—the district court was scheduled to hold a two-week jury trial on the plaintiffs’ allegations. But Samantar fought vociferously to prevent that trial from starting.

In the year leading up to it, through motion practice before the district court and the Fourth Circuit, Samantar made at least four unsuccessful attempts to delay the trial’s start.

And finally, at 9:31 p.m. on a Sunday, a mere 48 hours before the trial was set to begin, Samantar filed a petition for bankruptcy under Chapter 7 of the U.S. Bankruptcy Code—indefinitely postponing the trial by triggering an automatic statutory stay under 11 U.S.C. § 362, which froze the TVPA proceeding.

This “naked eleventh-hour attempt” by Samantar to avoid trial, as the plaintiffs bitingly described it, prompted the plaintiffs’ counsel to file an emergency motion urging the bankruptcy court to lift the stay.

As plaintiffs’ counsel noted in that filing, delaying the trial would constitute a serious setback for the plaintiffs’ case, as some of the plaintiffs themselves and many of the witnesses lived overseas and had traveled considerable distances to testify in person.

While the bankruptcy court granted the motion to lift the stay and the jury trial was rescheduled to begin only two days later than was initially planned, Samantar had one act of evasion left.

On the morning the rescheduled trial was supposed to begin, the Somali war criminal accepted a default judgment. Unable to stomach the prospect of two weeks of testimony outlining the atrocities he orchestrated, Samantar admitted his liability and vowed not to contest the damages the court would award the plaintiffs.

In doing so, he denied the plaintiffs the jury trial they had worked for years to secure.

Although the judge still held a bench trial to determine how much money to award the plaintiffs in damages, which gave the plaintiffs two days in court to adduce evidence against Samantar as he sat and listened, the Somali war criminal nevertheless robbed the plaintiffs of a more protracted public airing of his crimes.

To the end, Samantar made every effort to avoid confronting the gravity of what he had done.

For the Elzagally, al-Suyid, and Hamza plaintiffs, the message Samantar sends is clear: The road before them will be long. It will often be dispiriting.

And while the Libyan plaintiffs may not have to wait more than seven years to get to trial, as their Samantar counterparts did, they undoubtedly face years of uncertainty as their cases snake their way through the courts.

This uncertainty is made all the more pronounced by the broader question the plaintiffs’ lawsuits raise: whether law of any kind can hold Hifter and his officers accountable for the atrocities they allegedly have orchestrated.

To file suit under the TVPA, the plaintiffs have already attested that Libyan law offers them no adequate and available remedy. And while the ICC has jurisdiction to investigate human rights violations in Libya, the Office of the Prosecutor’s effort to litigate international criminal cases against Libyan defendants has faltered.

The lawsuits before Judge Brinkema and the prospect of recourse through U.S. federal courts therefore represent an inflection point in the global effort to force Libyan war criminals to face meaningful legal consequences for their actions.

The suits hold out, for the plaintiffs and other survivors, the possibility of legal accountability. But they equally hold out the possibility of defeat. And where then could the plaintiffs turn?

They could appeal a decision dismissing their cases. And human rights lawyers could use a loss at trial as the blueprint for a more effective litigation strategy in a similar case against Hifter in the future. But ultimately, the chance of losing these TVPA cases raises a grim pair of questions.

Will American law fail the Libyan plaintiffs, as Libyan and international law have? And if it does, should Hifter and his officers be understood to exist beyond law’s reach?

If they are, then Hifter may have been right: “The field is the field, end of story.”

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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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