Immunity does not apply to Modi, says American Justice Center in legal brief

US Court directs State Department to respond by December 10th to AJC’s “Memorandum of Law” challenging assertions of immunity.

By TCN News,

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Washington DC: The American Justice Center (AJC), an organization established to bring to justice perpetrators of mass violence and genocides, has filed a “Memorandum of Law in Opposition to Motion,” providing legal justification on why the Tort case against Indian Prime Minister Narendra Modi should move forward, and why Mr. Modi should not be granted immunity for human rights abuses committed during his tenure as Chief Minister of Gujarat.

In an immediate response to AJC’s brief, the US Court has directed the US State Department to respond to AJC’s legal brief challenging the US position on Mr. Modi’s immunity. The order states that “By December 10, 2014, the United States of America shall respond to Plaintiffs’ Objection to the Suggestion of Immunity”.

Arguing on behalf of the plaintiffs, American Justice Center and two survivors of the horrific Gujarat pogroms of 2002, Mr. Babak Pourtavasi, Esq of Pannun The Firm made a compelling case for prosecution of Mr. Modi under the Alien Tort Claims Act (ATCA) and Torture Victims Protection Act (TVPA). AJC’s case against the US government’s suggestion of immunity is based on the following facts:

Mr. Modi is being sued for acts committed as “Chief Minister” of the State of Gujarat and not for any acts that he committed as “Prime Minister” of India. “It is undisputed that foreign sovereign immunity extends only to the ‘head of the foreign government’ for the actions committed during tenure as ‘head of foreign government,'” states AJC’s Memorandum of Law.

Several federal courts have rejected immunity for foreign officials facing charges of blatant human rights abuses, as in the case of Mr. Modi. The United States Supreme Court in Kiobel v Royal Dutch Petroleum Co (2013) held that it is an “international duty,” and “important American national interest” to not provide safe harbor to hostis humanis generis or the common enemy of mankind.

Mr. Modi is not immune under Foreign Sovereign Immunity Act (FSIA), as the US Supreme Court decided that the term “foreign state” does not include individual government officials. In the Tort case against Mr. Modi, it is the latter who is being sued and not the Republic of India.

There is precedence known as Samantar, that allows lower federal courts to hold common law foreign sovereign immunity inapplicable for government officials sued for human rights abuses.

Commenting on the filing, Mr. Joseph Whittington, President of AJC said, “We are confident of the sound legal basis for the Tort case against Mr. Modi, and expect the court to allow the lawsuit to move forward.”

“Survivors of the horrific Gujarat massacres expect the US to uphold its own laws as well as international norms of justice,” he further added.

The Gujarat pogroms of 2002 were among the worst episodes of sectarian violence in independent India, and were marked with horrific crimes against humanity, including the rape of hundreds of women. Many of the victims were subsequently burned alive. Mr. Modi’s relentless PR efforts have tried to spin the decision of the Special Investigation Team (SIT) to not prosecute him, as a “clean chit.”

The US government’s decision not to use this claim in its suggestion of immunity is a clear acknowledgement of the fact that the case against Mr. Modi has not even reached the Indian Supreme Court. A case filed by Mrs. Zakia Jafri, widow of slain Parliamentarian Ehsan Jafri, is pending against Mr. Modi in the Gujarat High Court. An amicus curiae appointed by the Supreme Court has recommended Mr. Modi’s prosecution.

The American Justice Center (AJC) is a human rights organization dedicated to holding human rights abusers and perpetrators of mass violence accountable. AJC provides legal aid and support for international judicial redress to victims deprived of legitimate and legal means to justice.