Does the “Justice Against Sponsors of Terrorism Act” Violate International Law?

by Julian Ku

President Obama has threatened to veto a bill pending in the U.S. Congress that would allow private plaintiffs to sue foreign sovereigns for committing (or abetting) terrorist attacks inside the territory of the United States.  The Justice Against Sponsors of Terrorism Act has broad bipartisan support in Congress and from all of the presidential candidates (including Hillary Clinton). It would add an exception to the general rule of  immunity for foreign sovereigns in U.S. courts in cases

in which money damages are sought against a foreign state arising out of physical injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of the office or employment of the official or employee (regardless of where the underlying tortious act or omission occurs), including any statutory or common law tort claim arising out of an act of extrajudicial killing, aircraft sabotage, hostage taking, terrorism, or the provision of material support or resources for such an act, or any claim for contribution or indemnity relating to a claim arising out of such an act...

(emphasis added).

The bill drew more attention this week when the NY Times reported that Saudi Arabia is threatening to dump $750 billion in U.S. assets in retaliation for allowing the bill to become law.  Lawsuits from September 11 victims against the Saudi government would benefit tremendously from this law.

Anything with this much bipartisan support must be wrong in some important way. I suppose one reason to be skeptical is that it would mix delicate political and diplomatic relations into judicial proceedings where private lawyers can demand discovery into a foreign government’s internal deliberations and activities.

 Another reason is that there seems little basis in international law for creating an exception to sovereign immunity for terrorist attacks, or supporting terrorist attacks.  The traditional view of sovereign immunity is that it is absolute, and that remedies against a sovereign must be sought in diplomatic or international fora.  Allowing a domestic judicial proceeding to judge the actions of a foreign sovereign would seem to undermine this basic idea.

But there are exceptions to sovereign immunity, such as for commercial activities, that much of the world accepts. It is just not clear whether a new exception can and should be created here. I am doubtful, but I am willing to be convinced.

http://opiniojuris.org/2016/04/20/does-the-u-s-justice-for-state-sponsors-of-terrorism-act-violate-international-law/

8 Responses

  1. Response…1330a and 1604 should work for human rights treaty violations

  2. Thanks for the post . with all due respect , exception has got nothing to do , with commercial activity ,but rather :

    The distinction between ” private functions ” as an exception, and ” sovereign functions ” as the rule. If it is, naturally, a sovereign function, there is immunity, recognized as such, if, the official, hasn’t fulfilled the sovereign function, no immunity!! ( very generally speaking )

    And so, violation of a jus cogens like: Genocide, or tortures, wouldn’t be recognized as sovereign functions, since, no way, a state can act or engaged in such activities (tortures, genocide for example). Here , I quote from the case of Pinochet , in the house of lord ( UK ) here :

    ” Can it be said that the commission of a crime which is an international crime against humanity and jus cogens is an act done in an official capacity on behalf of the state? I believe there to be strong ground for saying that the implementation of torture as defined by the Torture Convention cannot be a state function.”

    Thanks

  3. Interesting post.
    I think the Vienna Convention on the Law of Treaties and the corresponding rule in customary law make it pretty clear that an exception to a rule of international law cannot be found in national law.

    “A party may not invoke the provisions of its internal law as justifications for its failure to perform a treaty” – Article 27 VCLT

    This could result in an embarrassing situation for the USA if the law is implemented and acted upon.

    However, I think there is some merrit to the argument that immunity for heads of state and other high level state officials is changing at the moment. (See for example the whole Al-Bashir discussion) Nonetheless, this change has to come from more than a single state in my opinion. Probably, the USA should take a more consesrvative stance as well, considering its huge role in intenrational diplomacy (it being the major host for the UN among other things).

  4. Dear Julian
    Your summary of the existing law of sovereign immunity omits to mention that in its current form, the Foreign Sovereign Immunities Act already includes a terrorism exception (section 1605A). Under that provision, a foreign state does not enjoy immunity in connection with a terrorism-related claim if the foreign state has been designated by the US government as a state sponsor of terrorism (either before or after the act giving rise to the claim for damages). Moreover, section 1605A has an extraterritorial scope; it is not limited to claims related to acts of terrorism within the United States. Even before the terrorism exception was first adopted in 1996, a US federal court had interpreted a different section of FSIA (section 1605(a)(5)) to find that Chile was not entitled to immunity in connection with a political assassination – an act of terrorism – on US territory (Letelier v. Republic of Chile, 488 F. Supp. 665 (D.D.C. 1980)).

    The key difference between the existing regime and the proposed amendment seems to be that it would allow suits against foreign states for terrorism-related claims even in the absence of such states being designated as state sponsors of terrorism– thus taking away a very important tool by which the executive branch can exercise its discretion to preclude such suits. Since it seems like the proposed legislation would leave section 1605A in place, this means that the executive branch would still be able to limit claims against foreign states for acts of terrorism taking place outside the United States.

    The fact that US law already includes a limited exception to immunity for acts of terrorism, however, does not mean that US law is in accordance with customary international law on State immunity. In the Jurisdictional Immunities case between Germany and Italy, the International Court of Justice noted that the terrorism exception in the FSIA “has no counterpart in the legislation of other States” (para. 88). So you are right to ask – and to be skeptical about – whether there is any legal basis under customary international law for a terrorism exception to the rules on State immunity. But that question is not raised for the first time by the proposed US legislation; it is already presented by the existing FSIA regime.

  5. Dear El-Roam,

    If I understood your argument correctly, you claim that a state cannot be immune in case of a jus cogens violation since the action cannot be attributed to the state, in a way of analogy from the Pinochet case.
    I believe this arguments does not hold since:
    1. One has to differentiate between state officials and the state itself. While an official’s action can be attributed to the individual acting in his/her own capacity, this is not true for a state, where there are not two “hats” to the entity. What is implicated from you argument is that a state cannot violate a jus cogen obligation (regardless of the immunity question) since it will never be attributed to it. The facts that a state can be sue for “commercial/private” action does not arise from the fact that the state has two “hats” but rather because customary law recognizes those action as suable. Therefore, it is indeed an exception to the immunity rule, not a completely different notion of action as you claim. Therefore unless terrorism is recognized under customary rule as exception to immunity rule, it is prohibited, as indicated by the ICJ in Germany and Italy case.
    2. This is a little bit beside the point, but I am doubtful that Saudi-Arabia’s action may amount to a jus cogens violation since the torts claims will focus, as I understand, on negligence. I believe it you will agree that negligence in preventing terrorism is not considered jus cogens violation. Therefore, these action can be attributed to Saudi-Arabia even if we accept your analogy from the Pinochet case. premise

  6. Ashi ,

    Thanks for your comment . I only wanted, to clarify, the lay or concept, which explain, when an act is sovereign one, and when not , while the author of the post, has described it, as:

    commercial or not. That, doesn’t constitute the philosophical distinction, but rather my observation , here for example:

    “Realizing that the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States…. ” (Vienna Convention on Diplomatic Relations1961 , preamble )

    End of quotation :

    So , distinction is based on : ” individual private functions ” lets say , Vs . : sovereign ones .

    The criminal dimension , only has served as basis for illustration . And indeed :
    If the state can and pay compensation ( in tort claim or if it would in criminal case , but it can’t ) then , it means , that the agent or official ,was an agent of the state , since , the state takes responsibility , then , the agent , is , very generally speaking : dismissed .

    Yet , in the criminal dimension , we face a problem :

    A state can never be prosecuted in criminal case .Even in the future to come , While ” crime of aggression ” is in force :

    Huge army , huge administration involved , in invading criminally another state , yet :

    It wouldn’t be the state , but :individuals who are to be held accountable ( article 25 to the Rome statute ) .

    So you see , a state , can’t have two hats , while dealing with criminal responsibility , let alone : in jus cogens violations , let alone in national or domestic law :

    The state , can’t sue itself , or prosecute itself .

    I admit, it is very elusive, yet: very solid, and well established!!

    Thanks

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