American courts cannot solve all the world's ills

American courts cannot solve all the world's ills
By Patti Waldmeir
Copyright The Financial Times Limited 2006
Published: September 21 2006 03:00 | Last updated: September 21 2006 03:00


The US has been exporting its own notions of justice overseas for several years now, but the past few months have seen a dramatic increase in America's judicial trade surplus: whether it is Sarbanes-Oxley regulators raiding UK accounting firms, or US competition cops getting heavy with foreign cartels, or the feds arresting Scots who run internet gambling businesses from Costa Rica, America is increasingly flexing its judicial muscles abroad. We are watching the rise of a legal superpower, in a world where justice has no borders.

US regulators and prosecutors are one thing; but increasingly US courts are also getting into the business of crossborder justice. My last column (Unwanted: a global pollution policeman) spotlighted a case of the new legal imperialism in environmental regulation: a federal appeals court that is trying to use US law to regulate what a Canadian company does entirely in Canada. But now another federal court has ruled in a case that could invite US courts to meddle not just in US foreign policy (as in the environmental case), but in the domestic politics of faraway countries with very different political and legal traditions. In the old days, we called that imperialism; now we just call it globalisation.

The case involves Nigeria, that entrepreneurial African country whose lawyers seem to have taken lessons in creativity from their American brethren. The case has been going on for years, but recently a federal judge in Chicago issued a breathtaking ruling that could make it a blueprint for a whole new kind of litigation that could spread well beyond Nigeria to much of sub-Saharan Africa and beyond.

The defendant in the case is one of Nigeria's many former military rulers, General Abdulsalami Abubakar. The plaintiffs include a Nigerian elder statesman and politician, and one of the myriad children of the extremely prolific Chief Moshood Abiola, the Nigerian politician who died in detention under General Abubakar's regime - and in the presence of two senior US diplomats.

This is the kind of heart-of-darkness tale that naive US courts with no experience of Africa are desperately ill-suited to hear, and the judge in the case made it very clear that he would happily have avoided ruling. But Judge Matthew Kennelly felt he had no option: the US Torture Victim Protection Act explicitly permits foreigners to sue their rulers in US courts for torture and extrajudicial killing. Judge Kennelly made clear why he considered this an "unenviable" task: "A court in this country is unlikely to be in a good position effectively to gauge the adequacy of another country's judicial system," he wrote. The torture act rightly requires foreigners to exhaust judicial remedies in their own country before turning to US courts - but how is a US judge to know whether it is practical, or simply futile for them to try? He may have a pretty dim view of sub-Saharan courts - but does that

mean these particular plaintiffs could not get justice there?

This judge struggled mightily with the task of figuring out whether the Nigerian plaintiffs could or should have filed suit instead in Nigeria and decided that, on balance, they did not need to. He based his ruling partly on an interpretation of Nigerian law - a tough call for somebody who, presumably, never passed the Nigerian bar - but also on a bit of boilerplate language in a US Department of State report condemning Nigerian courts (along with most sub-Saharan tribunals) as less than ideally fair.

The problem with that ruling is that it opens the door to similar suits from almost any disgruntled African who wants to force his country's rulers, or former rulers, to spend huge sums of money defending themselves (and their assets, and their reputation, and their prospects for a lucrative United Nations job) in a US court. No African leader who wants to send his children to university in the US, or retire quietly to Florida after a turbulent sub-Saharan term, can afford to ignore these suits. US courts enforce their judgments mercilessly.

No one is denying that victims of torture and state-sponsored murder deserve justice - and if there is really no alternative, they deserve American justice. But first - unless it is too dangerous for them to do so -- they should be required to try to get justice in their home country. "Imagine," said Judge Kennelly, "if the shoe were on the other foot." What would the US do if one of the Guantánamo detainees got a ruling from a foreign court against President George W. Bush, on the grounds that he could get no justice in US courts for his detention?

These judicial exports are dangerous business: they come back to haunt you.