Last week, the U.S. District Court in Washington D.C. allowed some of the claims in a lawsuit brought by U.S. citizens alleging injuries caused by the Saddam-era Iraqi government during the 1991 Gulf War to continue. The ruling in Vine v. Iraq is mostly a win for the new Iraqi government, which has been diligently defending these and other U.S. lawsuits in U.S. courts (for more background on the Iraq lawsuits, see the plaintiffs lawyers’ website here). But despite dismissing most of the plaintiffs’ federal common law and statutory law claims as barred by the Foreign Sovereign Immunities Act (the federal statute granting immunity to foreign governments like Iraq), the district court did permit the plaintiffs’ claims to continue under state or foreign law.
Iraq’s main defense relies on its protection as a foreign sovereign from jurisdiction of U.S. courts. A congressional amendment to the Foreign Sovereign Immunities Act, the Flatow Amendment, has been interpreted to permit private causes of actions only against agents of the state, rather than the state itself. The Vine plaintiffs suggested that federal common law, to the extent it incorporates customary international law, gives them a private cause of action, but the court rejected that argument as well saying that even if federal common law creates a private right of action, the Foreign Sovereign Immunities Act forecloses this claim.
All is not lost for the Vine plaintiffs, however. The district court held that the Foreign Sovereign Immunities Act does permit U.S. courts to hold foreign states liable for acts of terrorism under “state or foreign law.” That is to say, the plaintiffs can still bring their claims under state common law tort actions like “false imprisonment, intentional infliction of emotional distress, and loss of consortium” as well as the law of Iraq and Kuwait. Thus, if upheld, this ruling will permit plaintiffs to win damages, not under federal law or international law, but under local District of Columbia law or the law of Iraq or Kuwait. A somewhat odd result, but on first glance, it seems right to me.
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