## Facts

- Seven Nigerian citizens sued General Abdulsalami Abubakar, a senior member of Nigeria’s military junta and head of state from 1998 to 1999.
- Plaintiffs alleged that they and/or relatives were tortured, detained, or killed by Nigeria’s military regime that governed from 1993 to 1999, and that Abubakar bore responsibility as a top official and later head of state.
- Plaintiffs filed in federal court, asserting federal-question jurisdiction and invoking the Alien Tort Statute (ATS) to seek civil relief for alleged violations of international law norms, including torture and extrajudicial killing.
- Abubakar moved to dismiss, asserting statutory immunity under the Foreign Sovereign Immunities Act (FSIA) and challenging jurisdiction and the sufficiency of the ATS-based claims.
- The district court held that FSIA does not apply to individuals, recognized common-law head-of-state immunity for Abubakar’s one year as head of state, and allowed the ATS-based case to proceed.
- Abubakar took an interlocutory appeal focused on immunity and jurisdiction, including whether torture and extrajudicial killing claims against an individual foreign official could proceed under the ATS rather than under the Torture Victim Protection Act (TVPA).

## Issues

1. Whether the Foreign Sovereign Immunities Act applies to an individual former foreign official, providing statutory immunity for alleged official conduct.
2. Whether claims alleging torture and extrajudicial killing by an individual acting under color of foreign law may proceed under the Alien Tort Statute, or must be brought under the Torture Victim Protection Act (including its exhaustion requirement).

## Decision

- The Seventh Circuit agreed that the FSIA does not apply to individuals, so Abubakar was not entitled to FSIA statutory immunity.
- The court held that torture and extrajudicial killing claims against an individual foreign official must proceed, if at all, under the TVPA, not the ATS.
- Because plaintiffs did not satisfy the TVPA’s requirements, including exhaustion of adequate and available local remedies, their ATS-based suit could not proceed as pled.
- The court affirmed the FSIA ruling but reversed the district court’s acceptance of ATS jurisdiction for these claims and directed dismissal.

## Legal Principles

- The FSIA governs immunity of foreign states and their agencies or instrumentalities; it does not, by its own terms, grant immunity to natural persons sued as individual defendants.
- Separate from FSIA, common-law head-of-state immunity may bar claims for actions taken during the period a defendant served as head of state.
- The TVPA provides the exclusive federal cause of action against individuals for torture and extrajudicial killing committed under color of foreign law.
- Plaintiffs may not use the ATS to bypass the TVPA’s statutory limits, including the requirement to exhaust adequate and available remedies in the country where the conduct occurred.

## Conclusion

The Seventh Circuit held that FSIA did not confer statutory immunity on a former Nigerian official sued as an individual, but ruled that claims for torture and extrajudicial killing against such officials must be brought under the TVPA and are subject to its exhaustion requirement, requiring dismissal of the ATS-based complaint.


Enahoro v. Abubakar, 408 F.3d 877 (7th Cir. 2005)