Lorna McGregor, Senior Lecturer, School of Law, University of Essex. Her publications include: Torture and State Immunity: Deflecting Impunity, Distorting Sovereignty’, 18 European Journal of International Law 903 – 919 (2007) and ‘State Immunity and Jus Cogens’, 55(2) International and Comparative Law Quarterly 437 – 445 (2006)
2011 is already proving to be an eventful year for those interested in the relationship between immunities and allegations of torture and extra-judicial killings. Both the European Court of Human Rights (in Jones v. United Kingdom, Mitchell & Ors v. United Kingdom and Nait-Liman v. Switzerland) and the International Court of Justice (in Germany v. Italy - previous EJIL:Talk! posts here and here) have cases pending before them and two lower courts in Canada and the US have recently issued judgments on the subject-matter immunity of foreign officials. Both Kazemi v. Iran and Ors (Canada) and the district court decision in Yousuf v. Samantar (US) involve allegations of torture and extra-judicial killings committed in Iran and Somalia respectively. Although the courts in both decisions found that foreign governmental officials sued in those cases do not possess subject matter immunity, they reached this conclusion by very different means. While the US Supreme Court in Samantar had denied that the US Foreign Sovereign Immunity Act did not apply to individual officials, the Canadian court in Kazemi held that the Canadian State Immunity Act does apply in principle to individual officials. The US District Court rejected immunity for the official by deferring to the views of the executive while the Canadian case reached the decision on the basis of judicial interpretation of the domestic tort exception to immunity.
Kazemi v. Iran
At the end of January, the Canadian Superior Court of Quebec issued its decision in Kazemi v. Iran and Ors. Stephan Hashemi, the son of a Canadian photojournalist, Zahra Kazemi, who was allegedly tortured and killed in an Iranian prison in 2003, instituted civil proceedings in the Canadian courts against the Islamic Republic of Iran, its Head of State, Chief Public Prosecutor and Deputy Chief of Intelligence. He brought the action on behalf of his mother’s estate and also claimed for the emotional and psychological injuries he allegedly suffered in Canada as a result of his mother’s detention and death and Iran’s subsequent refusal to repatriate her body to Canada. Read the rest of this entry…