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Universal jurisdiction

The sovereign immunity debate has entered a new phase as the US government gets involved in the lawsuit against ex-Mexican President Ernesto Zedillo, now a US citizen

The debate on two contradictory principles — universal jurisdiction and sovereign immunity — has entered a new phase, thanks to the appearance of another party in the game: the US government, which must make a “statement of interest” in a Connecticut court on the “sovereign immunity” of former Mexican President Ernesto Zedillo, now a US resident, who is being sued for $50 million by relatives of people who died in the Acteal massacre in Chiapas in 1997.

The ex-president claimed diplomatic immunity under the Sovereign Immunity Law of 1976, and last year Mexico formally asked the US government to “suggest” to the judge that sovereign immunity be granted him. So far the 1976 law has only been invoked in two cases: that of an acting president of Sri Lanka, and that of Álvaro Uribe of Colombia, called as “witnesses” of acts committed by third persons under their mandates.

Everything indicates that the recommendation to the judge will be forthcoming. But the scope of the debate extends far beyond the case of Zedillo. In principle the State Department invokes US relations with Mexico, and the fact that Zedillo’s government was friendly to the US, and democratic. The State Department is also sensitive to the idea that allowing such lawsuits against former foreign presidents could open the door to similar suits in other countries against anyone from Henry Kissinger to George W. Bush. These are the principal reasons in favor of sovereign immunity.

Yet many others, including Barack Obama, favor universal jurisdiction in other cases that have come before a (traditionally reluctant) US Supreme Court. Prominent among them is the death of several Nigerian human rights activists, executed in the Niger Delta by guards in the employ of Shell Oil. One may well ask why the killing of Nigerian activists by a Dutch company in Nigeria should come before the US Supreme Court. This is precisely what is at stake. And it is the Obama government and the Justice Department that are pushing for universal jurisdiction in this case.

But in the case of Zedillo, the Justice Department is using other arguments. First, not to create a precedent by which other Latin American or African presidents — democratic or not; honest or not — might invoke immunity in the future and set off a wave of applications therein. On the other hand, there might be a landslide of arrests of dictators from various parts, but especially from Africa, upon their applications for asylum and then for immunity in the United States, in search of precisely that sort of protection that Zedillo seems about to receive.

A recent example concerns the vice president of Equatorial Guinea, Teodoro Obiang N. Mangue, son of the dictator Teodoro Obiang N. Mbasago, whose huge luxury apartment in Paris was confiscated by the French government due to apparent irregularities in the origin of the funds with which he acquired it. For the moment he and his father do not need refuge in any country other than their own, which they run with an iron fist. But some day they may well be in search of a safe place to enjoy their dirty money. In France, a traditional refuge for such dictators, their prospects are (at last!) uncertain. In the whole of the EU, too, thanks to the precedent set 15 years ago by Baltasar Garzón. Libya, another traditional refuge, is now a bad bet.

The United States would be an alternative if they could apply for sovereign immunity. This is what the Justice Department and part of the State Department, do not want. True, it would be a pity, were a decent, democratic leader like Zedillo to pay the cost of clamping down on murderous, crooked tyrants. But to recruit the United States for the cause of universal jurisdiction is no minor matter. The repercussions would be felt far beyond Mexico and Connecticut.

Jorge G. Castañeda is a political analyst and member of the American Academy of Arts and Sciences.

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