In US, ISI enjoys immunity, but not Kamal Nath

American governments double standard irks New Delhi

In US, ISI enjoys immunity, but not Kamal Nath

When it comes to invoking the Foreign Sovereign Immunity Act and protecting foreign entities and nationals from lawsuits in US courts, the American government seems to have two different yardsticks for Pakistan’s spy agency Inter Services Intelligence (ISI) and an Indian minister.

Though the US government moved to give immunity to ISI and its former top officials from a lawsuit that was filed in a New York court in connection with the 26/11 terrorist attacks in Mumbai, it has so far refrained from doing so for India’s Union Minister Kamal Nath in a civil suit filed against him in another court in same city over his alleged role in 1984 violence against Sikhs.

While India expressed its “serious disappointment” over the US government’s move to give immunity to the ISI and its former chiefs, what added to New Delhi’s ire is the fact that Washington opted to do so to protect them, although the court had not asked it to take a position.

New Delhi is understood to be unhappy because the US government filed the “Statement of Interest” in connection with the 26/11 case in the US Federal Court in the Eastern District of New York and stated that the ISI and its former chiefs Ahmed Shuja Pasha and Nadeem Taj enjoyed immunity, although Washington could have avoided making such a determination, as it had done in case of the lawsuit against Nath.

American NGO “Sikhs for Justice” had on April 6, 2010 filed the lawsuit against Nath in the US Federal Court in Southern District of New York under the Alien Torts Claim Act and Torture Victims Protection Act for his alleged role in organising an attack on the Gurdawara Rakab Ganj in Delhi on November 1, 1984, immediately after the assassination of then Prime Minister Indira Gandhi.

Nath was holding the Urban Development portfolio in Prime Minister Manmohan Singh’s cabinet and was on a tour to New York when the suit was filed. New Delhi had formally requested the US government to ensure immunity to Nath under the US Foreign Sovereign Immunities Act.

Claim

Washington, however, had not filed any “Statement of Interest” in the court to support the immunity claim of Nath, who now holds the Parliamentary Affairs portfolio. The judge, however, dismissed the case against Nath last March on the grounds that summons was not properly served upon him and that the plaintiffs had failed to prove his minimum contacts with New York – a requirement to support personal jurisdiction of the court over the case. The US made no bones about its displeasure over the ISI’s links with Haqqani Network and Taliban.

In a statement to the American Senate’s Armed Services Committee last Thursday, Admiral Mike Mullen, the then chairman of the US Joint Chiefs of Staff, said that the Haqqani Network, which had carried out many terrorist strikes in Kabul, had not only enjoyed the support and protection of Islamabad, but had also been “in many ways, a strategic arm of the Pakistani ISI”.

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