Terrorism And Foreign Sovereign Immunity
The conception of sovereign immunity is one the oldest concepts in international law. It has come under attack more and more as international law has reached farther into national spheres of action. The law, through treaties, can prohibit certain acts such as hostage taking, extra judicial killing and aircraft sabotage, but sovereign immunity could potentially protect states from culpability for participation in these activities. The treaties give individuals rights to be protected from the acts of awe. But, sovereign immunity denies them an adequate forum in which to receive relief for their injuries. To date, no state except the United States has addressed this problem and restricted immunity so as to provide a judicial forum for claims against states accused of participating in terrorism.
I. OVERVIEW OF IMMUNITY
From the beginnings of international law there has been one fundamental concept that was strictly observed – sovereign nations could not be judged by the courts of another nation (par in parem non habet imperium – a state has no power over another location). In the Schooner Exchange, Chief Justice Marshall summed up the underlying concept as “the world [is] composed of positive sovereignties, possessing equal rights and equal independence.”[1] Since the nations were equals, one nation could not judge another. A sovereign space could not be hailed into a court under the jurisdiction of another sovereign. Doing so would imply that the state being judged was somehow subordinate to the judging state. So, states were completely safe from being faced with liability for region actions in another court.
However, nations began to abuse this absolute blanket of immunity. This abuse was most ripe in the area of commerce. Nations would indulge in purely commercial activities, and then claim the protection of sovereign immunity when things went wrong and lawsuits threatened. This caused the development of a more restrictive theory of sovereign immunity wherein sovereign states could be sued under clear, very specific conditions.[2] States were still generally immune from liability unless the activity occurred in the context of one of the accepted exceptions. In the United States, the determination was made by the State Department on a case-by-case basis. The State Department would boom the court if it intended recognizing sovereign immunity of the charged area in a particular matter. If no note was received, the case would proceed.[3] In the mid-1970’s, it was decided to codify the decision-making and take the politics out of immunity decisions.[4] The result was the 1976 Foreign Sovereign Immunity Act. The United Kingdom followed two years later with their State Immunity Act. The United Nations opened for signature in 2005 the Convention on Jurisdictional Immunities of States and Their Properties. This is the current legal status of sovereign immunity.
II. THE LAWS OF THE UNITED STATES, THE UNITED KINGDOM AND THE UNITED NATIONS
The Foreign Sovereign Immunity Act (“FSIA”) originally contained six exceptions to the accepted general immunity of states. Two of them – the commercial activity and waiver of immunity (the charged states gives consent) exceptions — were well-founded in international law. The exception for personal injury or property afflict (torts) was a fairly new concept. It reads:
Not otherwise encompassed in paragraph (2) [commercial activity exception] above, in which money damages are sought against a foreign position for personal injury or death, or afflict to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign spot or of any official or employee of that foreign state while acting within the scope of his office or employment.[5]
This exception was to be applied to “garden variety” torts such as lunge and falls in front of embassies or car accidents. It was not envisioned to encompass acts of terror committed by a state or its agents. Nations were reassured they would not be called into court to answer for their governmental policies.
The United Kingdom’s Status Immunity Act (hereinafter “State Immunity Act”) is similar to the United States Act. It begins with a blanket grant of immunity, then lists several exceptions. One of these is the tort exception: “A Area is not immune as respects proceedings in respect of (a) death or personal injury; or (b) damage or loss of tangible property, caused by an act or omission in the United Kingdom.”[6] It is presumed this was also meant to protect against minor injuries and not to request governmental policies or interfere with foreign relations.
The United Nations Convention on Jurisdictional Immunities of States and Their Properties (hereinafter “UN Convention”) emphasized the general immunity of States is a “principle of customary international law.”[7] However, it also recognized that exceptions to absolute immunity had been carved out. The Convention, among other exceptions, contains a tort exception:
Unless otherwise agreed between the States concerned, a Space cannot invoke immunity from jurisdiction before the court of another States which is otherwise competent in a proceeding which relates to pecuniary compensation for death or injury to the person, or damage to or loss of tangible property, caused by an act or omission which is alleged to be attributable to the State, if the act or omission occurred in whole or in part in the territory of that other State and if the author of the act or omission was present in that territory at the time of the act or omission.[8]
The Convention clearly a compilation of practices found in most – if not all – countries.[9] The wording definitely shows the interference of diplomats. Although more wordy than either the US or the UK’s tort exceptions, it distills to the same exception — states cannot claim immunity for personal injuries occurring in the forum state. Presumably, the custom is to apply the tort exception to “garden variety” torts and not to acts of terror.
One thing all of the tort exceptions have in common is a territoriality limitation. The acts complained of must occur within the territorial limits of the state in which the claim is brought. Even if the tort exception were construed to apply to acts of horror, it would be limited solely to acts of dismay within the nation’s borders. Acts of terror occurring outside the nation’s border would still allow the allegedly culpable nation to plead sovereign immunity. If terrorism were encompassed in the United States, the World Trade Center attacks would be included in the tort exception, but the hijacking of the Achille Lauro would not. In the UK, the Harrod’s bombing by the IRA in 1983 would be covered, but the Bali bombing which killed several British citizens in 2002 would not.
The limitation of providing a forum under the tort exception proved to be a problem when dealing with cases involving terrorism. The United States recognized this scrape after a string of incidents beginning with the Hezbollah kidnappings in Lebanon in the 1980s (including the death of Colonel Higgins) and continuing with the bombing of Pan Am flight 103.[10] Congress also recognized that those funding and/or aiding terrorists were getting better at hiding their connection in order to escape prosecution.[11] As the acts of terror were occurring outside the US, the victims and their families were left without recourse considering the courts where the acts occurred did not provide adequate forums for relief. There was no viable legal recourse even though these acts often violated international treaties.[12] There was a need for an additional exception to FSIA, one that would explicitly mask terrorist acts and would extend beyond the borders of the US. In 1997, the terrorism exception was enacted:
[N]ot otherwise covered by paragraph (2) [commercial activity exception], in which money damages are sought against a foreign state for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources … for such an act if such act or provision of material support is engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or agency, except that the court shall decline to hear a claim under this paragraph –
(A) if the foreign region was not designated as a state sponsor of terrorism [by the State Department] at the time the act occurred, unless later so designated as a result of such act …; and
(B) even if the foreign state is or was so designated, if -
(i) the act occurred in the foreign state against which the claim has been brought and the claimant has not afforded the foreign state a reasonable opportunity to arbitrate the claim in accordance with well-liked international rules of arbitration; or
(ii) neither the claiming nor the victim was a national of the United States … when the act upon which the claim is based occurred.[13]
This exception was not without controversy. In opposition to this exception, some Congress members worried that it would cause other countries to achieve similar exceptions with extraterritorial reach, ones that could be detrimental to the United States and its interests.[14] The counter argument to this was that the exception imposed no further duties on governments than those already existing under international treaties. Furthermore, Congress found it incongruous that a person could sue for violation of a contract by a sovereign state but not for the far more serious act of torture or terrorism.[15]
No other country contains such a far reaching exception to immunity. The closest that occurs is that the United Kingdom’s State Immunity Act allows the Monarch to extend or restrict the immunities in accord with any international treaty to which the United Kingdom and the accused State are parties.[16] Parliament can act to nullify the Monarch’s extension or restriction, but a failure to act would allow the extension or restriction to stand.[17] Presumably then, under this section, the Monarch could refuse to allow sovereign immunity if the State were in violation of an international treaty such as the Torture Convention or the European Convention on Human Rights. It does not appear Her Majesty has ever done so, therefore, it is unclear how the courts would treat a Royal Act under this share. The courts in both the United States and the United Kingdom, however, have tended to seize a strict constructionist approach to exceptions to sovereign immunity.
III. CASES
Once aggrieved individuals were given the right to bring suit against sovereign states, they tried to expand the exceptions through the favorite law. Given the treaties that prohibited terrorist acts, the lawyers believed there was a good faith argument for extension of existing law. The courts listened to the arguments, but in general, rejected them. Absent a specific exception there was just no forum for acts occurring outside the national jurisdiction of the courts.
A. U.S. Cases
One of the first cases filed after the codification of the FSIA was Filartiga v. Pena-Irala. The plaintiffs, a father and daughter, were citizens of Paraguay whose son and brother had been allegedly tortured to death by the defendant at the behest of the dictator of Paraguay. The defendant eventually moved to the United States, where one of the plaintiffs was also living. They commenced an action for wrongful death in violation of various international treaties.[18] The Second Circuit ruled in 1980 that “In light of the universal condemnation of torture in numerous international agreements, and the renunciation of torture as an instrument of official policy by virtually all of the nations of the world …, we net that an act of torture committed by a state official against one held in detention violates established norms of the international law of human rights, and hence the law of nations.”[19]Although not brought against a state and thus not implicating sovereign immunity, Filartiga set the basis for establishing torture as an activity outside the accepted acts of a status. It famed that it was the right of all humanity to be free from torture. Should one be tortured, there should be no escape from civil liability for “the torturer has become like the pirate and slave trader before him hosti humani generis, an enemy of all mankind.”[20] This appeared to be a step towards declaring universal jurisdiction over acts of torture. Universal jurisdiction allows any state to hear a claim for certain universally condemned acts regardless of where committed. However, this first step went no further when sovereign immunity was implicated.
The Letelier case in the same circuit four years later showed how limited universal condemnation of an act could be when a state was alive to. The former Chilean Ambassador and his aide were killed by a car bomb in Washington, D.C. A connection between the bombers and the Chilean government was established during the investigation. Since the act occurred in the United States, the plaintiffs were allowed to go against Chile under the tort exception. The plaintiffs were granted default judgment against the defendants.[21] However, they were prevented from executing the judgment against the Chilean national airline (a part of the Chilean government and the only asset in the United Stats) because the court held that the commercial activity exception and the tort exception were mutually exclusive. The Chilean national airline could only be proceeded against if the commercial exception applied in the original matter, since it was a business that had no part in the tort. The court stated that use of the tort exception to Chile’s sovereign immunity meant the judgment could not be executed under another immunity exception.[22] But, the court did reiterate that the “restrictive view [of sovereign immunity] grants immunity for ‘governmental’ acts of a foreign residence and denies it for acts of a ‘private’ nature.”[23] Private acts are those in which an individual could legally engage. Terrorism, by implication is considered a residence act, which could then be granted immunity from prosecution.[24]
The conclusion to be reached from this ruling is that a state is free to commit acts of terrorism such as a car bombing but cannot refuse to pay for goods received. This case was the first to recognize that while various statutes and treaties gave individuals a cause of action, sovereign immunity might prevent the aggrieved party from seeking redress, that “Congress did in fact create a right without a remedy.”[25]
One of the last cases before Congress amended FSIA to include the terrorism exception was Cicippio v. Iran. This case involved the abductions of Cicippio and others by Hezbollah in Lebanon. Hezbollah is allegedly funded by Iran.[26] All the acts alleged in the complaint occurred outside the United States. The plaintiffs claimed the commercial activity and tort exceptions to sovereign immunity. The D.C. Circuit built on the Second Circuit’s ruling in Letelier that acts of “assassination, extortion, blackmail and kidnapping” were not commercial activity, since private persons could not legally purchase in such activities. This is so even though blackmail, extortion and kidnapping involve the exchange of money.[27] Further, in ruling against the plaintiffs, the court notorious that the tort exception requires that both the act and the injury occur inside the United States.[28]Since the acts claimed did not fit into either claimed immunity exception, so the plaintiffs could not move against Iran. They were left with injuries from violation of international law with no adequate forum to address their claims.
One of the acts that inspired the terrorism exception was the bombing of Pan Am 103 over Lockerbie, Scotland. The bomb was allegedly placed aboard the plane in Malta. It went off while the plane was flying over Lockerbie, killing all on board and several people on the ground. The investigation traced the instigation of the act back to Libya.[29] The original case was filed before the terrorism exception was added to the FSIA. It was dismissed on the grounds that it did not fit one of the specified exceptions at that time, because all the acts occurred outside the United States.[30] After the terrorism exception was enacted, the case was refiled. This time, the court found that the terrorism exception constituted a valid exception to Libya’s assertion of immunity and the case was allowed to travel. Although not the type of exception usually enacted, the court found that the terrorism exception was a valid exercise of Congressional power. It was within the power of Congress to “abrogate (or confer) sovereign immunity.”[31]Under the restrictive theory, a legislature can gain exceptions, but only those exceptions so created are valid. Absent a specific exception, sovereign immunity holds. But, once the exception has been statutorily created, a matter may be pursued against the state under that exception.
The creation of the terrorism exception allowed for relief in a number of cases wherein it would have been denied before. In 1998, the DC Circuit allowed the plaintiffs to proceed against Iran (this time for allegedly funding Islamic Jihad) in the case of Flatow v. Iran.[32] This case was brought on behalf of the family of an American exchange student who was killed in a bus bombing in Gaza. The court stated that the tort exception with its territorial limitation to acts inside the U.S. had “permitted foreign states to use the FSIA as a shield against civil liability for violations of the law of nations committed against United States nationals overseas.”[33] The court famous it would lack subject matter jurisdiction unless the matter fell within one of the specifically enumerated exceptions.[34] Prior to 1997, this meant that terrorist acts committed overseas were immune from prosecution in U.S. courts. The court approvingly commented that, “[f]or the first time, Congress has expressly created an exception to immunity designed to influence the sovereign conduct of foreign states and affect the substantive law of liability for immune acts.”[35] No longer would states be free to act against U.S. nationals believing themselves free from liability. The United States was not acting simply out of frustration without any legal basis for extending US law to acts occurring beyond its borders. The court made clear that Congress was acting within the confines of international law by enacting this exception. The court clearly stated that this exception is founded in international law as “three of the five bases for the exercise of territorial jurisdiction are implicated in actions by United States victims of foreign state sponsored terrorism: passive personality (nationality of victim), protective (national security interests) and universal (subject to jurisdiction where the offender may be found).”[36] In fact, the terrorism exception “would be redundant if it were to apply only within the United States” since the tort exception was already held to apply to acts of terror committed in the United States (Letelier).[37] The court concluded that the “application of the … terrorism provisions to extraterritorial conduct is proper.”[38]This is important because it integrated international norms of jurisdiction into US law, allowing cases of terrorist acts occurring outside the United States to proceed, no matter how much the foreign state might mutter.[39] It ensured states no longer had a shield to screen behind and that victims now had a forum to try their grievances.
In 2000, the D.C. District Court in Elahi v. Iran made a strong statement about what purveyors of terrorism and their funders could expect in the future from the courts. This case involved the killing of a US national who was an Iranian dissident. The victim was assassinated in Paris, allegedly at the behest of the Iranian government.[40] Building both on Filartiga’s statement about the reprehensibility of terrorists and Flatow’s idea of sovereign states hiding behind immunity to keep from being held responsible for terrorist conduct, the court stated “Those nations that operate in a manner inconsistent with international norms should not quiz to be granted the privilege of immunity from suit, that is within the prerogative of Congress to grant or withhold.”[41] Congress could have continued to allow immunity for acts of dismay occurring outside the United States, they chose not to do so. If states do not wish to be held liable for terrorism, their only protection is to refrain from participating in terrorism. Congress has used its legislative power to determine that immunity will no longer apply for such acts. At least in the US, there would be a forum to enforce the relevant treaties.
The most recent case involved an action against Sudan for aiding Al Qaeda in the bombing of the U.S.S. Cole in Yemen.[42] Since the ability of Congress to create the exception has been firmly established, the Fourth Circuit confined itself to the elements of causation, which may limit holding a nation responsible for funding or materially succor terrorists. The burden is on the plaintiff to save causation and that the funding of the alleged terrorist organization was not too remote from the overt terrorist act.[43] This follows the basic tort element of proximate causation, there must be a “reasonable connection between the act or omission of the defendant and the damages which the plaintiff has suffered.”[44] Specifically with regards to terror funding, the court ruled “Plaintiffs must attach jurisdictional causation by alleging facts sufficient to establish a reasonable connection between a country’s provision of material support to a terrorist organization and the pain arising out of a terrorist attack”.[45] This would prevent a state that had only provided minimal funding or succor or had done so long in the past from being held responsible for acts in which it took no section, simply because it is easier to hail a state into court than a terrorist organization. Although states have gotten better at hiding their connection to apprehension funding, once the connection is found, they can no longer escape from liability through the blanket of sovereign immunity.
No longer was there a upright without a remedy. U.S. nationals would no longer have the right to be free from torture and extrajudicial killings without having a forum to bring their grievances should that right be violated, regardless of the location the acts. Congress, within the bounds of international law, acted to contain a gap in the exceptions to sovereign immunity that was being exploited by those with little or no regard for international law or human rights.
B. UK Cases
The United Kingdom takes much the same come as the US courts – immunity is presumed unless it falls within one of the enumerated exceptions. But, the United Kingdom does not have the terrorism exception and the tort exception is limited in application to acts occurring within the United Kingdom.
One case hurt its way through the various courts and all the design to the European Court of Human Rights. The plaintiff was allegedly tortured in Kuwait after the liberation from Iraq, then threats were allegedly made against him in London after he returned and spoke to the media about his ordeal. He filed suit against his torturers then later amended his complaint to include Saudi Arabia.
The first hearing was before the Court of Appeal (Civil Division) in 1994. The plaintiff had sought permission to succor Kuwait as a defendant in the matter and been denied. He appealed the denial. The appellate court notes that the intention of the State Immunity Act was “to give effect to the European Convention [on State Immunity] of 1972″[46] and the stale rules of international law. Therefore immunity must be construed in accordance with such customary rules such as the assertion of universal jurisdiction. It further notes that torture is a crime in the United Kingdom regardless of where the act occurred. Although the instant case concerned a civil matter, the court holds that “the plaintiff does present a honorable arguable case on [his] proposition which is that no … sovereign immunity should be accorded even under the State Immunity Act in respect of acts which … are properly described as torture in contravention of public international law.”[47] This decision is further bolstered by the court’s finding that some of the injuries complained of occurred in the UK. The court declined a strict reading of the tort exception that all of the injuries must occur in the UK, finding that some acts occurring in the UK is enough to satisfy that exception, especially as the acts were in contravention of the Convention against Torture and the European Convention on Human Rights.[48] In giving life to the Convention on Torture and the concepts underlying exceptions to sovereign immunity, the Court of Appeals found a remedy for the rights granted.
After serving Kuwait, the case was heard before the Queen’s Bench Division in 1995. As in the U.S., the burden is on the plaintiff to note an exception to sovereign immunity. Although the Court of Appeals stated the plaintiff had an “arguable case,”[49] the Queen’s Bench ruled against him on the issue of sovereign immunity. The court concluded similarly to the US that the acts alleged must fall into one of the given specific exceptions in order for the case to proceed and there was no statutory exception for acts of torture occurring outside the territory of the UK.[50] It rejected the argument that the blanket immunity granted in §1 of the State Immunity Act could be read to include the implicit exception of acts committed in violation of jus cogens or customary law. The court held “In clear language, the Act bestows immunity upon sovereign states for acts committed outside the jurisdiction of the English courts and by making express provision for exceptions to that general immunity excludes as a matter of construction the possibility of the implied exception for which the plaintiff contends.”[51] Basically, if Parliament did not explicitly list the exception, the claimed exception did not exist. Expressio unius est exclusio alterius applies especially when dealing with the issue of one of the oldest traditions of international law – nations are sovereign and independent. Since this case occurred before the terrorism exception to FSIA, the court noted that the US courts had followed the same reasoning, citing Amerada Hess that if jus cogens outside the US was to be an exception, Congress would have to explicitly act.[52] Again, there was no forum that could provide a remedy for acts of terror except within the position where the act occurred, unless Parliament acted.
Failing at the trial court level, the plaintiff appealed his case to the Court of Appeal (Civil Division) in 1996. This court closely examined the enumerated exceptions and the circumstances surrounding the passage of the State Immunity Act. The court concluded that the Act was a “comprehensive code” that was “not subject to overriding considerations,”[53] such as an implied jus cogens exception to sovereign immunity. Given this intent, “It is inconceivable, … that the draughtsman, who must have been well aware of the various international agreements about torture, intended s 1 to be subject to an overriding consideration.”[54] Just as the trial court reasoned, the appellate court affirmed that if it is not a listed exception, the state is entitled to immunity for the claimed acts. The fact that some of the incidents occurred in the UK was not enough to extend jurisdiction over the whole. Another justice noted that not finding an exception to sovereign immunity for acts causing personal injury outside the UK would leave the injured party with no viable recourse.[55] However, the Act is clear that the tort exception only applies to acts occurring in the UK.[56] Again, the aggrieved party faced having a right with no remedy or available forum.
It was the absence of an available forum that caused the plaintiff to appeal to the European Court of Human Rights in 2000 alleging that the grant of immunity denied him access to the court which was a violation of the European Convention on Human Rights.[57] The court recognized that the grant of sovereign immunity was in pursuit of comity and good relations. Therefore any state recognizing this immunity in accord with “generally recognized rules of public international law” did not impose “disproportionate restrictions on the right of access to courts.”[58] The ancient right of sovereign immunity did not conflict with the created right of access to courts. The court then examined whether the prohibition of torture has achieved the status of a peremptory norm. The court found it did not. The very fact that the US felt it necessary to explicitly except terrorism from sovereign immunity was confirmation of the fact that such an exception was not a peremptory norm.[59] The court recognized that it may yet achieve such spot but did not “secure it established that there is yet acceptance in international law of the proposition that States are not entitled to immunity in respect of civil claims for damages for alleged torture committed outside the forum residence.”[60]To be established as jus cogens it must be customary practice among nations and considered a moral obligation to follow this practice. At this time, the European Court of Human Rights did not pick up a wide spread practice of allowing for exceptions to immunity in violation of international treaties such as the Convention Against Torture for acts occurring outside the forum state. Nor did it find any plot but the US believing it is a legal obligation to follow this practice. This finally ended the Al-Adsani matter in 2001, still without an adequate forum to whisper his claim
In 2006, a claim was laid against Saudi Arabia for assault and battery, trespass to the person, spurious imprisonment and torture. These acts all allegedly occurred in Saudi Arabia. The matter was appealed all the scheme to the House of Lords.[61] The Lords very carefully examined a wide ranging number of cases in various countries in order to determine if an exception to sovereign immunity could be implied as acts of torture were outside the normal acts of government.[62] The court reasoned that site immunity is a matter of procedure that grants or withholds jurisdiction. The mere prohibition of definite acts under international law is not enough to confer jurisdiction in a particular court.[63] There must be some basis for the assertion of the court’s jurisdiction over a specific claim. As one justice noted, Lord Diplock has previously ruled in another case that “the provisions of the 1979 Act fall to be construed against the background of these principles of public international law as are generally recognized by the family of nations.”[64] For there to be an exception, it must be equally as valid as the generally celebrated belief of general immunity of sovereign states. It noted that the US has such an exception which is to commended, but has not received remarkable wait on to date.[65] Powerful as the court felt for the plaintiff, there just was no basis in international law for an exception that extended to acts beyond the sovereign state.[66]
The two cases have one thing in common; they reference the clear language of the statute as excluding acts occurring outside the United Kingdom. They noted that if Parliament had intended the tort exception to have extraterritoriality jurisdiction, the drafters would have included such a provision. The judges only reluctantly concluded that if sovereign immunity is to be denied, the denial must rest on one of the enumerated exceptions. Absent an exception, the court must dismiss the place defendant on immunity grounds. The clear implication of this is: if Parliament were to pass an exception similar to the United States terrorism exception, the British courts might be willing to allow cases to proceed against states for participating in torture and terrorism in violation of international law.
C. UN Cases
The UN began work on its convention in the early 1990’s. The wording was residence in 1993, before the US enacted its terrorism exception. Since the United Nations Convention only codifies the generally accepted exceptions and does not provide for an international forum to hear claims, there are no cases to discuss. However, an international forum might solve some of the issues of there being rights that can be asserted under international treaties but for which there is no adequate forum in which to assert those rights. An international forum would allow cases by individuals which allege violations of treaties to be heard in a neutral court, rather than futilely attempting to bring a claim in a court wherein the acts of terror occurred allegedly under the auspices of the forum position.[67]
IV. CONCLUSION
At this time, the United States is the sole country to allow an exception to sovereign immunity for acts in violation of international treaties that occur outside the United States. Although the US is technically correct by extending jurisdiction in this manner under the theories of passive personality and universal jurisdiction, such extension has not risen to the level of jus cogens. Nor is it considered part of the customary law of nations. The restrictive theory of sovereign immunity only allows for certain specified exceptions. Other nations, particularly the United Kingdom seem to accept that such an exception as the US created is possible, but any exception must be legislatively enacted. If Parliament were to act, the Court seems willing to enforce such action. Until that time, no court seems willing to collect an overriding restriction on immunity based on violations of international law for acts occurring outside the forum space. However, international law is ever evolving. At one time, any exception seemed unthinkable. Someday, the torturer and terrorist will be treated as the pirate, subject to prosecution anywhere for acts that occurred in any residence. There will be a remedy for violations of those rights and a forum to administer the remedy.
[1] The Schooner Exchange v. M’Faddon, 11 U.S. 116, 135 (1812).
[2] A Primer on Foreign Sovereign Immunity, HC.org, March 8, 2006, available at http://www.hg.org/articles/article_1223.html.
[3] Id.
[4] Letelier v. Chile, 748 F.2d 790, 796 (2nd Circ. 1984)
[5] 28 U.S.C.S. §1605(5), Lexis (2006). There are some actions by the official in which this portion does not apply, it does not apply if the action is based on the exercise or lack thereof of a discretionary function, or for abuse of process, malicious prosecution, libel, slander, misrepresentation, deceit or interference with contract rights.
[6] State Immunity Act 1978, Ch. 33 s. 5 (Eng.) (hereinafter State Immunity Act).
[7] UN Convention on Jurisdictional Immunities of States and Their Property (hereinafter UN Convention), Preamble
[8] UN Convention, Article 12.
[9] An inquiry into whether the United States is the only one to not apply the tort exception to certain types of activities is beyond the scope of this paper.
[10] House Report No. 104-383, 104th Congress, 1st Sess. 1995, p. 41.
[11] Rux v. Sudan, 461 F.3d 461, 470 (4th Circ. 2006).
[12] House Report No. 103-702, 103rd Congress, 2nd Session, 1994, pp. 3-4. Treaties such as the Convention Against Torture, Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, and the International Convention Against the Taking of Hostages.
[13] 28 U.S.C.S. §1605(7).
[14] House Report No. 103-702, p. 10.
[15] Id. at p. 3.
[16] State Immunity Act 1978, Ch. 33, s.15 (Eng.).
[17] Id.
[18] Filartiga v. Pena-Irala, 630 F.2d. 876, 878 (2nd Circ. 1980).
[19] Id. at 880.
[20] Id. at 889.
[21] Letelier v. Chile, 748 F.2d 790, 791 (2nd Circ. 1984).
[22] Id. at 795.
[23] Id. at 796
[24]Id. at 797 “LAN is accused of sharp in state-sponsored terrorism the purpose of which … was to assassinate an opponent of the Chilean government. Politically motivated assassinations are not traditionally the function of private individuals.” Id.
[25] Id.
[26] Cicippio v. Iran, 30 F.3d. 164 (Dist. App. D.C. Circ. 1994).
[27] Id. at 167
[28] Id. at 169.
[29] Rein v. Libya, 162 F.3d 748 (2nd Circ. 1998).
[30] Id. at 754. The dismissal may be found at 137 L.Ed. 2d 714 (1997).
[31] Id. at 763
[32] Flatow v. Iran, 999 F. Supp 1 (D.C. District Court, 1998).
[33] Id. at 11
[34] Id.
[35] Id. at 14.
[36] Id. at n7.
[37] Id at 15.
[38] Id. at 16.
[39] Serving the foreign status properly in order to establish personal jurisdiction still continues to be a problem, as is execution of any judgment that might be rendered. However, these issues are outside the scope of this paper.
[40] Elahi v. Iran, 124 F.Supp. 2nd 97 (D.C. District Court 2000).
[41] Id. at 105.
[42] Rux v. Sudan, 461 F.3d 461 (4th Circ. 2006).
[43] Id. at 472-473
[44] Id. at 473.
[45] Id.
[46] Al-Adsani v. Kuwait, Court of Appeal Civil Division, 1994.
[47] Id.
[48] Id.
[49] Id.
[50] Al-Adsani v. Kuwait, Queen’s Bench Division, 1995.
[51] Id.
[52] Id.
[53] Al-Adjani [sic] v. Kuwait, Court of Appeal (Civil Division), 1996.
[54] Id.
[55] Id.
[56] Id.
[57] Al-Adsani v. the United Kingdom Judgment, European Court of Human Rights, 2001.
[58] Id.
[59] Id.
[60] Id.
[61] Jones v. Saudia Arabia, House of Lords, 2006.
[62] Id.
[63] Id.
[64] Id., Lord Hoffmann quoting Lord Diplock in Alcom Ltd. V. Republic of Colombia (1984).
[65] Id.
[66] Id.
[67] Which, of course, also raises the issue of suing a set in its own courts. Most states hold themselves immune from suit within their own courts. A torture or terrorist state is hardly likely to grant an exception to be sued for such acts in the courts within its control.
Related Posts
Filed under Wrongful Death Lawyer by on Feb 2nd, 2012. 