If not torture, then how about terrorism – Canada amends its State Immunity Act

Most of our immunity-related discussions in recent weeks have focused (naturally) on the recent ICJ decision in Jurisdictional Immunities of the State (Germany v. Italy, with Greece intervening). But there are new developments at the domestic level worth noting, including the passage this month of amendments to Canada’s State Immunity Act to allow victims of terrorism to sue the perpetrators in a Canadian court, including foreign states listed by the Government of Canada as supporters of terrorism.

As in many other states, Canada has embraced a restrictive rather than absolutist approach to the question of foreign state immunity from the jurisdiction of a state’s domestic courts. The legislative scheme adopted some thirty years ago in Canada embraces the concept of foreign state immunity from domestic court jurisdiction, but also provides for certain specified exceptions. For example, the commercial activity exception, which provides that: “A foreign state is not immune from the jurisdiction of a court in any proceedings that relate to any commercial activity of the foreign state.” See section 5 of the above-referenced Act, and the definition of “commercial activity” in section 2.

But these exceptions to immunity are few in number and they do not address the question of jus cogens breaches committed by foreign states. Within Canada, this situation has led to efforts to expand the current list of statutory exceptions so as to permit an individual to sue a foreign state for torture in a Canadian court, with the unsuccessful case of Bouzari v. Islamic Republic of Iran being the notable example, and one which resulted in criticism of Canada before the Committee against Torture (CAT). For commentary on the Bouzari case in the European Journal of International Law, see here. (The case also gains a mention in paragraphs 85 and 96 of the Germany v. Italy decision.)

The Bouzari case brought further attention to the issue of civil actions for torture, and following the periodic review of Canada’s implementation of its Torture Convention obligations in 2005, the Committee Against Torture recommended that Canada “should review its position under article 14 of the Convention to ensure the provision of compensation through its civil jurisdiction to all victims of torture.” This recommendation is found in the Committee’s “Concluding Observations”, UN Doc. CAT/C/CR/34/CAN (2005) at para. 5(f). But to quote the late Lord Bingham of Cornhill, then of the Appellate Committee of the House of Lords: “Whatever its value in influencing the trend of international thinking, the legal authority of this recommendation is slight” (Jones v. Saudi Arabia, [2006] UKHL 26 at 15, para. 23) with Lord Hoffman further opining: “Quite why Canada was singled out for this treatment is unclear, but as an interpretation of article 14 or a statement of international law, I regard it as having no value” (Jones v. Saudi Arabia, [2006] UKHL 26 at 27, para. 57; and see generally paras 56-58.)

But others within Canada, led by those who suffered the loss of loved ones during 9/11, have pushed for a different kind of change to the State Immunity Act – a change that allows victims of terrorism to bring a civil action in a Canadian court against the perpetrators and supporters, including foreign states listed by the Canadian government. Their efforts have led to the introduction of a number of private member’s bills in the Canadian Parliament since 2005, but in 2011, Canada’s Minister of Justice opted to include a “Justice for Victims of Terrorism Act” within an omnibus crime bill known as “Bill C-10” that combines nine previous bills and has attracted much attention in Canada on other grounds. As of this month, Bill C-10 has now been enacted into law, with the Act’s short title being the somewhat quixotic Safe Streets and Communities Act, and it is within Part I of the new Act where we find the amendments to Canada’s State Immunity Act.

As for the details, the new Canadian law will now allow Canadian citizens and permanent residents of Canada who are victims of terrorism, as well as others if the action has a real and substantial connection to Canada, to seek redress by way of a civil action for terrorist acts committed anywhere in the world on or after 1 January 1985. It has been suggested that this date was chosen to allow the families of the victims of the 1985 Air India bombing to sue those responsible (with the Air India bombing being “the worst terrorist attack in Canadian history”). But before one can sue a foreign state in Canada for supporting terrorism, the state in question must have been listed by the Cabinet in Ottawa, following a recommendation by the Minister of Foreign Affairs in consultation with the Minister of Public Safety and Emergency Preparedness. The basis for listing a foreign state is that there are reasonable grounds to believe that the state in question supported or supports terrorism, and there will be no ability for a listed state to challenge that listing in the courts. Additional amendments provide for the attachment, execution, arrest, detention, seizure and forfeiture of property belonging to a listed state that is located in Canada and used, or intended to be used, to support terrorism.

Canada’s Safe Streets and Communities Act received Royal Assent earlier this month – Canada being a constitutional monarchy – and we now await the listing of states designated by the government as state-supporters of terrorism such that they deserve to have their immunity lifted. No doubt reciprocity (or retaliation) will be a concern among those tasked with advising the government, although Canadians can look “south of the border” for inspiration as some years ago, the United States enacted legislation to lift immunity for both terrorism and torture. If anyone else has legislation in place for suing states for terrorism by way of domestic civil actions, it would be interesting to hear about your experience … and to compare lists.