Torture Victim Protection Act

Is a Libyan Warlord Beyond Law’s Reach?

By William Ford
Thursday, October 22, 2020, 8:01 AM

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.

In the first of the three lawsuits filed against Hifter, Elzagally et al. v. Hifter, the Tunalli, Gasiah and al-Harramah families allege that Hifter ordered indiscriminate bombing that killed their family members and targeted areas in which Hifter knew civilians to reside. On April 4, 2019, LNA shelling in Tripoli killed Msaddek Tunalli as he worked to evacuate women and children from the targeted area. On April 6, 2019, in Wady al-Rabii, the LNA bombed a civilian field hospital, killing Dr. Ayman al-Harramah. And on April 16, 2019, an LNA missile strike on a Tripoli neighborhood killed Mufida Sasi Abu Gasiah, as well as her mother, sister and daughter. The plaintiffs allege that these atrocities violate the TVPA, the Alien Tort Statute and several Virginia statutes. (DISCLAIMER: The Elzagally complaint and its accompanying exhibits, linked here, include graphic and disturbing images of alleged war crimes.)

The plaintiffs in al-Suyid et al. v. Hifter et al., the second lawsuit filed against Hifter, plead more detailed allegations than their Elzagally counterparts. They seek to hold Hifter and his sons, Khalid and Saddam, liable for torture and extrajudicial killing under the doctrine of command responsibility. As such, their complaint contains detailed information about the LNA’s command structure—including the ranks and names of the specific officers allegedly involved in the torture and killings at issue. That conduct, the plaintiffs submit, violates both the TVPA and Virginia state law.

The al-Suyid plaintiffs’ claims—brought by the al-Suyid and al-Krshiny families—concern atrocities the LNA allegedly committed during Operation Dignity. That operation reportedly began in October 2014 as a military campaign to rid Benghazi of Islamist militants. But the al-Suyid plaintiffs allege that Hifter and LNA officers used the operation as a means to “liquidate[]” individuals “suspected to oppose the LNA.”

The plaintiffs state that on Oct. 15, 2014, LNA units surrounded the al-Suyid family home, in which men, women and seven children resided. Mustafa and Khalid al-Suyid engaged the LNA soldiers in a gunfight. Mustafa died during the engagement, and Khalid was wounded and later discovered dead. Upon learning that the LNA was attacking their family, Abdel Salam and Ibrahim al-Suyid rushed home to help, but the LNA kidnapped them en route. Soldiers allegedly detained Abdel Salam and Ibrahim in a nearby school and beat them. The next day, the brothers were found dead. Their bodies reportedly bore marks of torture.

On Oct.17, 2014, LNA soldiers attacked the al-Krshiny family home, in which women, men and 14 children resided. Soldiers and al-Krshiny family members engaged in a gunfight, during which Ibrahim al-Krishny sustained a shrapnel wound to his eye. The LNA subsequently detained Ibrahim and his five brothers. According to the plaintiffs’ complaint, LNA soldiers brought Ibrahim and Mustafa al-Krshiny to LNA barracks “co-located with Defendant Khalifa Hifter’s headquarters in ar-Rajma, Libya.” At the barracks, soldiers stripped and bound Ibrahim, and beat him with pipes, cables and a plastic hose. The soldiers allegedly forced Ibrahim to stand in water and repeatedly electrocuted him for five-minute intervals over the course of roughly 7.5 hours. The soldiers then drove Ibrahim into a forest and released him but declined to release his brother Mustafa. Mustafa’s body was discovered on Nov. 5, 2014, with execution-style bullet wounds through his head and chest.

The LNA allegedly brought the other four al-Krshiny brothers to a camp in Benghazi controlled by Hifter’s subordinate, Maj. Gen. Jamal al-Zahawi. When the brothers entered the camp, LNA soldiers allegedly fired on the truck transporting the brothers, killing one of them and wounding the other three. The LNA reportedly released the surviving three on Nov. 21, 2014.

The plaintiffs state that less than a year after these alleged atrocities occurred, Hifter released a video declaring that LNA units should show opponents “[n]o mercy.” The warlord continued: “Never mind the consideration of bringing a prisoner here. There is no prison here. The field is the field, end of the story.”

In contrast to Elzagally and al-Suyid, Hifter has yet to respond to the third lawsuit against him, Hamza et al. v. Hifter, which was not before Brinkema when she issued her stay on Sept. 29. The allegations at issue in Hamza, however, are just as chilling as those detailed in the other lawsuits. In this case, the Hamza and Jibreel families allege that Hifter is personally or secondarily liable for, or aided and abetted, the extrajudicial murder of their family members. The plaintiffs contend that these atrocities violate the TVPA and the Alien Tort Statute.

The plaintiffs state that, in July 2016, Hifter began laying siege to Ganfouda, a residential district on Benghazi’s outskirts where the Hamza family had taken refuge. On Aug. 10, 2016, plaintiff Ali Hamza—a dual Libyan-Canadian citizen who was living in Canada at the time—wrote to Hifter, requesting the safe treatment of his family and all civilians in Ganfouda and asking that they be given safe passage out of the area. On Aug. 31, Libya’s U.N.-backed Government of National Accord asked the International Committee of the Red Cross to facilitate the evacuation of roughly 126 families from Ganfouda. Hifter reportedly blocked the evacuation, as well as the delivery of food and medicine. The plaintiffs add that earlier in August, a spokesman for Hifter said, of the Ganfouda siege, that “whoever is above 14 [years] of age will never get out alive.” The siege continued for months. Ali Hamza alleges that by January 2017, his family had resorted to eating grass to survive.

On Feb. 26, 2017, the LNA shelled Block 12, where the Hamza family was living, killing Ibrahim Hamza and wounding two other family members. Two days later, the LNA launched another barrage of shells, severing Fariha Hamza’s leg. Besieged and without medical supplies, Fariha died from blood loss on March 2. On March 18, the Hamza family and others on Block 12 got into three cars and attempted to flee the district. LNA units allegedly fired on the cars with heavy artillery and machine guns—the aftermath of which was captured on video. That onslaught killed Naser, Aalya and Faiza Hamza, whose bodies are said to be visible in the video footage. Abtisam Hamza suffered a gunshot to the shin during the attack but survived. Hifter’s men subsequently detained Abtisam. While she was in their custody, they allegedly beat her with a steel pipe, targeting the leg that sustained the gunshot wound.

The Jibreel family, also trapped in Ganfouda, faced similar violence. On Jan. 5, 2017, the LNA bombed the Jibreel home, wounding Salimah and killing three of her children: 11-year-old Mohammad, eight-year-old Maryam and three-year-old Aziza. On March 18, the Jibreels attempted to flee Ganfouda, but the LNA caught and detained them. The LNA eventually released Salimah and her surviving daughter. But Salimah’s husband, Alaa, remains in LNA custody, where he has allegedly been tortured and is currently being held incommunicado.

The Hamza plaintiffs quote the same pronouncement the al-Suyid plaintiffs attribute to Hifter: “Never mind [the] consideration of bringing a prisoner here. There is no prison here. The field is the field, end of story.”

On Aug. 20, Hifter moved to dismiss the Elzagally and al-Suyid suits on three grounds. First, the warlord moved to dismiss them for lack of subject-matter jurisdiction, arguing that the cases present a nonjusticiable political question and that Hifter is entitled to head-of-state immunity. In his briefing on the political question doctrine, Hifter’s counsel emphasized that moving forward with the lawsuits could “seriously jeopardize” the State Department’s effort to work with Hifter to secure a negotiated end to the Libyan civil war and might impede other American “foreign policy goals.” The substance of those goals does not matter, counsel submitted, as “it is the political branches’ domain” to determine “whether to support Gen. Hifter’s actions in Libya.”

Second, Hifter moved to dismiss the lawsuits for failure to state a claim under the TVPA. His lawyers contend that the plaintiffs failed to exhaust all adequate and available remedies in Libya; that Hifter neither knew the alleged conduct occurred nor should have known it would occur; and that the allegations detailed in the plaintiffs’ complaints occurred during the course of lawful military operations and, therefore, could not support a finding of liability. Third and finally, Hifter sought to disqualify the suits for improper service of process.

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."