In this action arising from alleged war crimes at Abu Ghraib, the United States cannot claim sovereign immunity, but it is entitled to summary judgment as to the third-party complaint by its contractor, whose employees are claimed to have committed torture and other inhumane acts against the plaintiffs at Abu Ghraib.
The Federal Tort Claims Acts doesn’t waive sovereign immunity for the torts asserted here. Abu Ghraib, like Okinawa after World War II, was never incorporated into the United States; the lack of an independent Iraqi sovereign doesn’t bar the application of the Act’s foreign-country exception.
For several reasons, the federal government does not retain sovereign immunity that protects it from being sued in an American court for alleged jus cogens violations committed by Americans. Joining the community of nations and accepting the law of nations, the United States has impliedly waived any right to claim sovereign immunity with respect to jus cogens violations when sued in an American court.
First, the international enforcement structure mandated by various multilateral agreements to which the United States is a party also requires the United States to submit to suit in its own courts for certain jus cogens violations, especially those related to torture. By joining these agreements and participating in the international community, the United States has impliedly waived its sovereign immunity with respect to such claims.
Second, allowing the United States to assert sovereign immunity as a defense to such claims would ensure that the domestic legal system does not provide an adequate remedy to victims of torture. To effectuate the global remedial structure apparently envisioned by the Convention Against Torture, it is necessary for those courts with a nexus to alleged torture to exercise jurisdiction over victims’ civil claims. By becoming a party to the Convention, the government has impliedly waived any sovereign immunity defense that would prevent such enforcement.
Third, under a hierarchy-of-norms approach, any jus cogens norm must prevail over and invalidate any principle allowing the assertion of sovereign immunity in response to claims of jus cogens violations. Some acts are, as a matter of morality and reason, fundamentally wrong such that no state may authorize their commission nor immunize those involved in such acts from liability. This principle compels the conclusion that just as a government official is unable to cloak himself in the mantle of sovereign immunity to avoid prosecution when he commits a jus cogens violation, so too is a government unable to immunize itself from civil liability for such violations.
Fourth, the United States has also consented to suit with respect to jus cogens violations by holding itself out as a member of the international community, because the respect and enforcement of jus cogens norms are fundamental to the existence of a functioning community of nations.
Finally, the federal government may immunize itself from liability for jus cogens violations only if the acts of authorizing or engaging in such violations fall within the sphere of authority that has been legitimately delegated by the people. The people as sovereign are bound by the non-derogability of jus cogens norms, which means that the people may not legitimately delegate to the government the power to engage in jus cogens violations. Thus, the federal government, bounded by its status as a limited government of delegated powers, has no sovereign power to immunize itself from liability for such violations.
For these reasons, the United States does not retain sovereign immunity for violations of jus cogens norms of international law.
However, the United States seeks summary judgment primarily on the ground that all claims between itself and its contractor arising out of or related to the two task orders under which the contractor placed civilian interrogators at Abu Ghraib were settled in 2007. But for the task orders, the contractor wouldn’t have provided interrogation services at Abu Ghraib. The task orders placed the contractor’s personnel alongside military personnel with the job of interrogating detainees. It was from that relationship that plaintiffs’ allegations of abuse arose.
To avoid having its claims for indemnification, exoneration, and contribution barred by the settlement agreement, the contractor argues that allegations of jus cogens violations exceed the bounds of that settlement agreement, citing the familiar adage that one cannot contract for unlawful acts. But the contractor’s equitable claims still relate to the task orders and are therefore encompassed by the settlement agreement. The contractor had been on clear notice for several years that it was exposed to lawsuits directed at its conduct at Abu Ghraib when it entered into the settlement agreement in 2007.
Motion to dismiss denied in part and granted in part; motion for summary judgment granted.