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

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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 Actand 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.

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JordanPaust says

April 3, 2012

God bless the Canadians for opposing impunity! The ICJ decision was a set back for humanity and completely contrary to trends in decision since Nuremberg allowing civil claims against states and state officials who engage in conduct in violation of international law (as their conduct is not lawful "offical" or "public" conduct, but ultra views al la the rationale evident in the Opinion and Judgment of the IMT at Nuremberg). We desperately need to replace judges on the ICJ with those who will promote human rights law, international crimnal law (including the CAT), self-determination of peoples, rights of indigenous peoples, and, more generally, human dignity!
Immunity is one more form of oppression, one less measure of human dignity.
Thank you Canada for reaffirming (at least partly) general patterns of opinio juris and participating in conforming patterns of practice that support human dignity.

JordanPaust says

April 3, 2012

p.s. somehow the computer changed vires to views

Daniel Masi says

September 8, 2012

I am a strong believer that any country that supports or defends terrorism should be held accountable for their actions. However, the problems with allowing this are vast and complicated. First, as seen in http://www.ejiltalk.org/canadas-alien-tort-statute/ there is a very arbitrary system in place to determine which countries are those that support terrorism. In the US, Cuba is on the list for what can only be seen as historical reasons. Furthermore, as pointed out in the article, several countries that have been accused of terrorism and have more solid evidence of supporting terrorist acts are left off the list because the US was “not keen to offend” them.

Second, there is too broad of a scope of people who are “affected” by terrorism. Does this mean that they must be directly affected? What happens if the close cousin of someone affected wants to sue? What about a best friend? Or a neighbor? Where will it end? Furthermore, why is the starting date the first of January 1985? What about the bombing in Quebec in 1984 that killed 3 and wounded 30? I am sure that the families affected during that attack feel that that was the “worst” terrorist act in Canadian history.

I want to reiterate that I am vehemently opposed to terrorist acts and feel that those responsible, including those that support and defend terrorism, should be reprimanded. However, I believe that this act allows for too broad of an application and an arbitrary determination of who can be held responsible.