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

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.