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Home EJIL Analysis Domesticating the Law of Immunity: The Supreme Court of Canada in Kazemi v Iran

Domesticating the Law of Immunity: The Supreme Court of Canada in Kazemi v Iran

Published on November 7, 2014        Author: 

International lawyers typically think that when a case deals with a matter of international law, once you know the position under international law, then this will give you the answer. Unfortunately, before domestic courts, that is not always the case. Late last month, the Canadian Supreme Court issued its judgment in Kazemi Estate v. Islamic Republic of Iran [2014] SCC 62 (the Quebec Superior Court Judgment was discussed on the blog here). The case, following on the Ontario Court of Appeal’s earlier judgment in Bouzari, serves as a stark reminder that the application of international legal principles in domestic proceedings will frequently be governed or mediated by domestic legislation, which often reflects domestic priorities in addition to international principles. The role that international law should play in such cases, as either a source or a means of interpretation, may be contested. The Kazemi v Iran Judgment is the latest instalment in a series of important domestic court decisions on the law of State immunity.

Background

Ms. Zahra Kazemi was a Canadian citizen and freelance photographer and journalist who died in custody in Iran in 2003, following her detention, torture and sexual assault in prison The authorities refused to return her body to Canada and buried her in Iran. Although a domestic investigation reported links between the Iranian authorities and her torture and death, only one person was charged and he was acquitted after a trial which lacked transparency.

Seeking justice for his mother’s death, Ms. Kazemi’s son, Mr. Stephan Hashemi, sued the Islamic Republic of Iran, Ayatollah Sayyid Ali Khamenei (Iran’s Head of State), Mr. Mortazavi (Chief Public Prosecutor of Tehran), and Mr. Bakhshi (former Deputy Chief of Intelligence at the prison where Ms. Kazemi was detained), claiming damages for his mother’s suffering and death, and for the emotional and psychological harm that this caused him. Predictably, the defendants sought to dismiss the motion based on claims of state immunity, which is implemented in Canada by the State Immunity Act (SIA). This challenge ultimately reached the Supreme Court of Canada, which presented the issues as follows:

“Essentially, the Court is being asked to determine the scope of the SIA, the impact that the evolution of international law since the SIA’s adoption might have on its interpretation, and whether the Act is constitutional.” [32]

The framing and priority of these questions by the majority set the tone for the Court’s examination of the appeal: this was first and foremost about the scope and application of a piece of Canadian legislation, albeit one that dealt with matters of international law. Nevertheless, the majority recognized that

“An overarching question, which permeates almost all aspects of this case, is whether international law has created a mandatory universal civil jurisdiction in respect of claims of torture which would require states to open their national courts to the claims of victims of acts of torture that were committed outside their national boundaries.” [32]

But what role does this question play in the application of a Canadian statute before domestic courts?

Interplay of international and domestic law

The majority of the Supreme Court early observed that “state immunity is not solely a rule of customary international law. It also reflects domestic choices made for policy reasons, particularly in matters of international relations” [45]. Or to rephrase slightly, state immunity may be a rule of customary international law, however the way that it applies before national courts is not solely based on the rules of international law but also reflects domestic choices made for policy reasons and captured in domestic legislation.

In this case, based on the language of the SIA, the majority of the Supreme Court considered that those domestic choices must take priority as the SIA was a complete codification of the law of state immunity to be applied by Canadian courts – not surprising given that the key provision of the SIA, s. 3(1), read “Except as provided by this Act, a foreign state is immune from the jurisdiction of any court in Canada” [54], [58]. The role of international law was therefore limited to being used to interpret ambiguous provisions [56], [63]. However, the majority was clear that developments in international law which might be seen as contrary to the content of the SIA do not in themselves create such an ambiguity [60].

Mr. Hashemi recognized that the Court may well decide the matter solely within the terms of the SIA, and made two arguments based on its provisions. The first was that the harm suffered by him (though not by his mother) constituted “personal or bodily injury … that occurs in Canada” and was therefore fell within the exception to state immunity in s. 6(a) of the SIA. This was rejected by the Supreme Court, primarily on the grounds that it would subject the conduct of a foreign state outside of Canada (and in this case in its own territory) to the jurisdiction of Canadian courts – conflicting with the purpose of the SIA which is “to ensure that the underlying rationales for the doctrine of state immunity are upheld in Canada” [70]. This seems sound, as otherwise merely being in Canada when one received news of an event that was sufficiently distressing to cause psychological harm (and sufficiently closely related to the person to make that harm tortious) could subject a state responsible for that event to the jurisdiction of Canadian courts. The Supreme Court also clarified an additional limitation on the scope of potential claims, namely that the “personal or bodily harm exception to sate immunity does not apply where the alleged injury does not stem from a physical breach of personal integrity” [74]).

Mr. Hashemi also argued that even if state immunity protected Iran and its head of state, it did not extend to protect mid-level officials such as Mr. Mortazavi and Mr. Bakhshi. Unlike some national legislation implementing state immunity, the SIA does not specify whether officials are covered: it simply says that “‘foreign state’ includes … (b) any government of the foreign state”. Does “government” include all officials? The Supreme Court held that it did, based primarily on ordinary principles of statutory interpretation (the wording of “includes”, the purpose of the Act, congruence with other provisions which certify whether “persons” are to be regarded as a government), though it supported this conclusion with international sources (including the United Nations Convention on Jurisdictional Immunities of States and Their Property and the Jones judgments of the UK House of Lords and ECtHR) [84]-[87]. Contrary authority, notably the US Supreme Court decision in Samantar, was distinguished again on domestic bases – textual differences in the language of the applicable statutes [92]. Of course, officials of the nature of Mr. Mortazavi and Mr. Bakhshi would only constitute “government” for the purposes of state immunity in so far as they are acting in their official capacity. Given that torture as defined in the UN Convention against Torture requires the involvement of a person acting in an official capacity, the Supreme Court here had little trouble finding that Mr. Mortazavi and Mr. Bakhshi were acting in such a capacity [98], and that torture could constitute an “official act” even for the purposes of immunity [109].

Underlying much of the discussion was the very domestic and constitutional questions of who bears responsibility for ensuring that Canada’s implementation of state immunity reflected the developments in international law on this subject. Given that questions of immunities and their balance against underlying rights raise matters of policy, indeed those impacting on international relations [45], the majority considered that it was Parliament’s responsibility to modify the scope of the immunity that Canada granted other states from its courts’ jurisdiction [56], [170]. The Court noted that the Canadian Parliament had done so in the past: creating a specific exception along the lines of the US FSIA §1605A to state immunity for terrorism offences, following a debate in which the lack of a similar exception for torture was both noted and criticized [44]. As a result, commentators have already called for Parliament to do just that in light of the Kazemi judgment.

That is not to say that the Court wrote itself and international law out of the picture entirely: although adjusting the SIA to reflect developments in international law is primarily the responsibility of the Parliament, the Court retained a residual role in assessing whether those developments (in state immunity or potentially in international law more broadly) had diverged from the domestic legislation to such an extent that the legislation violated rights under the Constitution, Bill of Rights or Charter.

The role of international human rights

Having found that Mr. Hashemi’s claim was barred by the SIA, the majority of the Court considered whether that conclusion was inconsistent with s 2(e) of the Bill of Rights and s 7 of the Canadian Charter of Rights and Freedoms. Both of these provisions revolve around the right of access to court.

Section 2(e) of the Bill of Rights provides that “no law of Canada shall be construed or applied so as to … deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations”. The majority interpreted this right narrowly as guaranteeing a fair hearing if a hearing was held in Canada, but not as creating “a self-standing right to a fair hearing where the law does not otherwise allow for an adjudicative process” [116]. The right to a fair hearing is not violated when immunity bars a hearing on the merits.

The Charter-based argument of the appellants was that barring an individual from seeking redress – through, for example, upholding state immunity – aggravated the trauma suffered, thus engaging the right to security of the person enshrined in s 7 [122]. The majority admitted that impunity for torture can cause significant psychological harm to victims and their families [128], but it must also be shown that a principle of fundamental justice has been violated through the application of immunity [135]. That principle was defined as the right to redress for victims of torture, codified in Article 14 of the Torture Convention. After examining US and Canadian practice as well as Jones v Saudi Arabia, the majority concluded that Article 14 could be read as requiring a private right of action for redress only for torture committed in the territory under the jurisdiction of the forum State. The UN Committee against Torture takes the opposite position in its General Comment No. 3 (2012), but the Court said that this did “not overrule adjudicative interpretations” and at best “form[s] part of a dialogue with in the international community” on the right to remedy [148]. In doing so, the Court prioritized dialogue with domestic judicial decisions in other jurisdictions (the UK) over dialogue with a specialist UN treaty body, even when that body had directed specific criticisms to Canada (see Abella J, [226]). The Court also emphasized that Canada’s dualist system meant that “the mere existence of an international obligation is not sufficient to establish a principle of fundamental justice” [150].

Justice Abella, in dissent, took a different, international law-driven approach to interpreting the Canadian Bill of Rights and the Charter. She gave weight to the fact that victims’ rights to reparations are recognized in the statutes of international criminal courts and tribunals, numerous international human rights treaties, and General Assembly resolutions [194]-[199]. She delved into Canada’s interactions with the UN Committee against Torture, and found them to be of significance [226]-[227]. Customary international law no longer required that foreign state officials be granted immunity ratione materiae from the jurisdiction of Canadian courts [228] and she would have allowed proceedings against Mortazavi and Bakhshi.

Conclusion

High profile Judgments in Germany v Italy, Al-Adsani v Kuwait, Jones v Saudi Arabia (plus their ECtHR iterations) and Kazemi v Iran have held that immunity applies in civil proceedings even in the face of alleged violations of jus cogens norms. Yet each of these Judgments has contained strong dissenting voices, suggesting that the conversation will continue.

Kazemi v Iran was decided through a close examination – and prioritization – of domestic law. But, as the majority recognized and Abella J emphasized, some domestic laws themselves embed elements of international law, especially domestic instruments protecting fundamental rights such as the Charter and the Bill of Rights. A few days after the Kazemi Judgment, the Italian Constitutional Court declared that the right of access to court embodied in Article 24 of the Constitution trumps State immunity, at least with respect to war crimes and crimes against humanity. This is a different form of the ‘domestication’ of the international law on immunity in that the Italian court is ‘purging’ international law of its unconstitutional traits before it enters the domestic system, whereas the Canadian court is applying only those international norms that have been incorporated into domestic law through legislation.

While each domestic legal framework culture will add its own gloss to the interaction of individual rights and state immunity, the continued judicial assessment of the compatibility of immunity with international norms – and any adjustments to the domestic regulations of state immunity by the legislature in response – should provide fruitful material for the development and refinement of the law of immunity.

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7 Responses

  1. Roger O'Keefe Roger O'Keefe

    Thanks very much, Ben and Pip. (Ben, you’re still alive? Why didn’t ya call?) Very interesting, albeit not in the least bit surprising. Two things struck me about your piece. The first was the opening line: ‘International lawyers typically think that when a case deals with a matter of international law, once you know the position under international law, then this will give you the answer.’ Is this really what international lawyers typically think? Perhaps you are hanging out with the wrong international lawyers. I had rather hoped that international lawyers’ increasingly sophisticated understanding of how international law plays out in domestic courts had taken us beyond such facile assumptions. Secondly, you speak of ‘strong dissenting voices’ and their potential to contribute to the development and refinement of the law of immunity. You and many others appear optimistically to emphasise the ‘strong’. I tend to take my cue from the word ‘dissenting’, and I have the feeling that national courts, national governments and international courts do too. The ICJ came down 14:1 (and that ‘1’ was a very special ‘1’) in Jurisdictional Immunities of the State. My suspicion is that those ‘strong’ voices – like the ‘strong’ voice of Judge Wald in Princz v Federal Republic of Germany, the ‘strong’ voice of the minority in Al-Adsani v United Kingdom, and so on – will be rather hoarse by the end of it all. Sure, the Corte di Cassazione did what it did. But this merely takes me back to the first point, namely that domestic legal imperatives are crucial. The C di C did not challenge, and indeed affirmed, the international legal position as enunciated by the ICJ. In the final analysis, it strikes me as highly unlikely – especially when one considers the position of China, India, the Russian Federation, etc, etc – that the dissenters will achieve much. Anyway, thanks for the excellent post. Roger

  2. Riccardo Pavoni

    Thank you so much for this timely report on such an important decision. I think however that a couple of observations would be in order here so as to provide some context.
    In quoting the following, striking statement by the SCC you are omitting the first three words:’IT FOLLOWS THAT state immunity is not solely a rule of customary international law. It also reflects domestic choices made for policy reasons, particularly in matters of international relations'(45). Of course, you are also omitting to note that this statement flatly contradicts what the ICJ said in 2012 about the nature of state immunity, and that the statement by the SCC is just another variation of the US courts’ views about the same question (grace and comity, etc) and that the SCC supports its statement with a citation to the authoritative Fox and Webb’s Law of State Immunity.
    But most importantly, what was preceding that statement? It was preceded by a short discussion of Canada’s terrorism exception to state immunity as enacted in 2012, precisely one month and a half AFTER the ICJ judgment… The SCC’s conclusion was that ‘the amendment to the SIA brought by Parliament in 2012 demonstrates that forum states… have a large and continuing role to play in determining the scope and extent of state immunity'(44).
    On the other hand, the SCC was silent about a key aspect: pursuant to that amendment (which is retroactive, ie, it applies to terrorist acts committed on or after 1 January 1985), Iran has been listed as a state supporter of terrorism, see
    http://www.gazette.gc.ca/rp-pr/p2/2012/2012-09-26/html/sor-dors170-eng.html
    So, why didn’t the plaintiffs invoke the terrorism exception? Because that exception does not cover acts of torture as such, even if they are committed by terrorist states (presumably in contexts that are unconnected to terrorist activities)! This is a striking difference vis-à-vis the specular terrorism exception in the US FSIA: if Zahra Kazemi’s son was a US national or a US employee (and not a Canadian), he could have sued Iran before the US courts, where Iran would not enjoy immunity in the circumstances (Iran is included in the relevant US list)…
    It is unacceptable that contemporary international law de facto condones such egregious atrocities as those experienced by Zahra Kazemi in 2003 (not, say, some 60 years ago during WWII). Ah, sorry, we are sometimes told that in these cases we should believe in diplomatic protection, and also that we should believe in advocacy groups and the international community exerting pressure on Iranian authorities so that they finally afford some decent measure of justice to the victims…

    There are a couple of typos in Roger O’Keefe’s comment. The ICJ came down 12:3, if I well remember. I don’t know if his qualification as ‘special’ also applies to the other 2 judges in addition to the one that he had in mind.
    The latest Italian decision was rendered by the Constitutional Court, not the Corte di Cassazione. Sorry to point this out, but this is not a merely terminological question; the mandate, mission and jurisdiction of the 2 courts are very much distinct, and – to a certain extent – this is also helpful to understanding the approach of the Constitutional Court. Was the latter really required to reopen the international law issues in order to address the domestic constitutional issues raised by the Florence Tribunal? Formally, not at all. Substantively, probably so, but then the Court would have been in the uncomfortable position of having to set out its divergent view (vis-à-vis the ICJ) about the current state of international law.
    However, legal sophistications aside, the Constitutional Court espoused a solution which is glaringly in line with Italy’s ‘last resort’ argument before the ICJ: thus, in substance, it endorsed a different view of the current state of international law, although via a reasoning formally grounded on domestic constitutional law.

  3. Roger O'Keefe Roger O'Keefe

    I thank Ricardo Pavoni for his kind corrections to my hurried contribution. He is indeed correct that the ICJ voted 12:3 (one of the other judges being the Italian judge ad hoc) on the question of immunity from proceedings. I had in mind the 14:1 voting on the subsequent questions of immunity from execution and so on. He is also, of course, correct that it was the Constitutional Court, not the Corte di Cassazione, which ruled in Italy. I am not, however, at all clear why either makes a substantive difference. That Ricardo seems to think so is testament to his boundless optimism, which can only be admired. For my part, I am not so sure that 12:3 is significantly less damning in the eyes of most national courts, national governments or international courts. Where I am from, we would still call that a ‘pasting’, a ‘caning’, a ‘shellacking’ or a ‘walkover’. As for the CC versus the C di C, enough said, perhaps. Roger

  4. Riccardo Pavoni

    Roger, I was not optimistic at all, unfortunately. How can I be after reading a story such as that of Ziba Kazemi? What is the civilising lesson from international law that I can tell my students tomorrow on the basis of that story? And there is no denying that 12:3 means ‘pasting’, ‘caning’, ‘shellacking’ or a ‘walkover’ as 14:1 does. However, and although I am not an anglophone, I must confess that that language appears to me more appropriate to gossip about a football match or, more to the point, to describe the treatment reserved by some Iranian officials for the late Ziba Kazemi (beaten, raped and tortured to death).

  5. Roger O'Keefe Roger O'Keefe

    PS Apologies for omitting a ‘c’ from your name, Riccardo. Italian and Spanish regularly compete in my brain, and sometimes Spanish wins. Mi dispiace, mi scusi. Roger

  6. Riccardo Pavoni

    No problem at all with that Roger, I’m so used to it… and many thanks for the exchange, grazie tante, and again thanks to the authors of the post.
    My last word is about the restrictive interpretation of the tort exception by the SCC: what a setback for that exception! But I would tend to agree with Philippa and Ben that the SCC’s interpretation on this point appears reasonable, also because it is certainly in line with international law practice; it’s worth rereading carefully, though… and compare with the precedent in Schreiber v… Germany… All this without forgetting that, in the first place, Schreiber stands for the proposition that the tort exception squarely applies to iure imperii acts; cf the ICJ’s uneasiness also on this point…

  7. Jordan

    So Canada is in violation of Article 2, para. 3, of the ICCPR, which necessarily denies immunity; and Art. 14 of the CAT, which in view of who can commit torture under Art. 1 of the CAT, must necessarily include officials. Canada may also be in violation of Article 56 of the U.N. Charter.
    Time to clean up Canadian legislation.