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  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.
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, (more…)