The case against Yale professor Ernesto Zedillo GRD ’81, a former Mexican president accused of committing war crimes and crimes against humanity, moved one step closer to dismissal following a State Department suggestion that he receive immunity.
The State Department argued for Zedillo’s immunity in a letter issued Friday, claiming his actions — connected to a 1997 massacre that occurred during his term — were taken as part of his official duties as a foreign head of state. If a federal judge defers to the State Department’s suggestion, which two scholars of legal immunity issues said is a likely outcome, Zedillo will see his case dismissed. While the courts have typically sided with State Department suggestions, the experts said the court’s actions are not governed by any federal statute — a fact they said reflects the politicization of law.
“Are we shocked that the U.S. government decided to take this position?” Roger Kobert, the plaintiffs’ lawyer, said. “No, we’re not shocked, but we’re very disappointed. We thought they’d do the right thing, but they chose not to do the right thing.”
The case began when 10 anonymous plaintiffs — represented by the Miami, Fla., law firm Rafferty, Kobert, Tenenholtz, Bounds & Hess, P.A. — alleged Zedillo worked to cover up a Dec. 22, 1997 attack on civilians in the village of Acteal, Mexico in which 45 indigenous villagers died.
Zedillo’s lawyer, Jonathan Freiman LAW ’98, motioned to dismiss the $50 million suit in January, claiming his client was immune from the suit as a former foreign head of state.
Freiman told the News on Sunday that he was pleased with the State Department’s suggestion, but wouldn’t speculate on what it means for the case.
“The accusations in lawsuit are not only false but calumnious,” Zedillo said in a Sunday email. “That is why I am glad that Jonathan’s strategy to get this libelous lawsuit dismissed is making progress.”
Kobert said he and the plaintiffs are weighing their options as they wait for the court’s ruling.
Ingrid Wuerth, a professor at Vanderbilt Law School who has written about immunity issues, said the courts have tended to side with State Department suggestions of immunity. She cautioned that such practices lend the government political power in altering the course of judicial proceedings.
“I think it’s an example of lawmaking by the executive branch,” Wuerth said. “The executive branch is acting as a lawmaker here and interfering in the court, saying that some claims can go forward and some can’t.”
The State Department often provides immunity recommendations to American courts for cases concerning foreign heads of state, though such cases are rare.
In a letter accompanying the State Department suggestion, State Department legal adviser Harold Koh, a former Yale Law School dean and current law professor, wrote that the suggestion took into account “the overall impact of [the case] on the foreign policy of the United States.” Koh could not be reached for comment Sunday.
But Curtis Bradley, a law professor at Duke University School of Law, said the State Department’s political interests in Zedillo’s case were secondary to the suggestion’s grounding in principles of international law. He said a federal court would have considered similar principles, and would thus likely have reached a comparable conclusion about Zedillo’s immunity even without the State Department recommendation.
Zedillo was the president of Mexico from 1994 to 2000.