Iran’s Tryst With the Terrorism Exception and State Immunity

Introduction

On June 27, 2023, Iran instituted proceedings against Canada before the International Court of Justice (“the Court/ICJ”), contending a violation of its jurisdictional immunity and immunity from measures of constraint. A detailed statement of the jurisdictional and substantive issues raised in the case can be found in a previous blog post on this forum. In summary, Canada amended its state immunity legislation, enabling it to designate a State as a supporter of terrorism, and lifted the jurisdictional and enforcement immunity of States designated as such. Consequently, Canadian courts granted pre-judgment measures of constraint, recognized and enforced several judgments issued by US courts, and exercised jurisdiction over claims brought against Iran (see Iran’s Application, paras 14-20).

In an insightful blog post on Just Security, Prof. William S. Dodge argues that this “terrorism exception” does not violate customary international law for two reasons. First, States are only granted immunity for sovereign acts, and supporting terrorism cannot be classified as acta jure imperii. Second, as customary international law does not recognize these acts as immune, Iran must establish settled practice and opinio juris to claim immunity for acts of terror. In this post, I will address these arguments and provide an analysis of why the so-called “terrorism exception” violates international law with regards to immunity.

What is sovereign about supporting terrorism?

The ICJ in the Jurisdictional Immunities of the State made it clear that the distinction between jure imperii (for which a State is immune) and acta jure gestionis does not depend on the lawfulness of the underlying act (see para 60). Municipal Courts have assessed the nature of the transaction to determine if the State acted in the exercise of its sovereign power or akin to a private person, i.e., in private law (see pages 114-115). Specifically, regarding state-sponsored terrorism, a UK court held that (para 184):

“The act of state sponsored terrorism is of its own character a governmental act as opposed to an act which any private citizen can perform.”

In 2022 another UK Court upheld this rationale and held that by definition, “state-sponsored terrorism” can only be performed by a State, and a private citizen cannot provide support for terrorism that is “state-sponsored” (see para 28). A US Court of Appeals, in a claim against Saudi Arabia, which the USA has not designated as a “state-sponsor of terrorism,” upheld Saudi Arabia’s immunity for its alleged involvement in the September 11 attacks. Similarly, a Luxembourg District Court considered Iran’s alleged support of Al-Qaeda in the September 11 terrorist attacks as acta jure imperii and recognized its immunity (page 44). Thus, notwithstanding that state-sponsored terrorism may violate international law, particularly the UN Security Council Resolution 1373, it does not alter the sovereign nature of such acts.

The Baseline Question?

In my opinion, and contrary to what Prof. Dodge argues, the starting point is that a State is immune for acta jure imperii unless one of the recognized exceptions (or limitations) apply. The ICJ recognized this in the Jurisdictional Immunities of the State judgment, where it observed that (para 56):

“…whether in claiming immunity for themselves or according it to others, States generally proceed on the basis that there is a right to immunity under international law, together with a corresponding obligation on the part of other States to respect and give effect to that immunity.”

Moreover, domestic courts in the US (page 8), Canada (para 22), UK (para 52), Austria (para 14), and Belgium have expressly stated that foreign States are entitled to a presumption of immunity. Further, the domestic legislation of Australia (Section 9), Pakistan, Singapore (Section 3), and South Africa (Section 2) confer foreign States with immunity except as provided in the respective legislations – indicating that unless a case falls within one of the exceptions, a State is entitled to immunity as a general rule.  

The Curious Case of the Jurisdictional Immunities Judgment

The Parties’ Arguments

Italy argued that in so far as the tortious acts committed by German armed forces occurred in Italy, Germany is not entitled to immunity because of the “territorial tort” exception codified under Article 12 of the United Nations Convention on the Jurisdictional Immunities of States and Their Property (“UN Convention”) (para 62). In its oral pleadings, Germany contended that the territorial tort exception did not apply to acta jure imperii (para 4). Further, Germany also argued that even if the tort exception applies to acta jure imperii, the acts of armed forces in the context of an armed conflict are nonetheless excluded (para 7).

The ICJ’s Approach

The Court accepted Germany’s second argument after analyzing State practice and opinio juris to find that customary international law continues to extend immunity even for tortious acts of armed forces on the territory of another State (para 78). This begs the question: if a State is presumptively immune for acta jure imperii, why did the ICJ separately analyze State practice and opinio juris in favour of immunity for tortious acts of armed forces? Prof. Dodge relies on this approach of the ICJ to argue that even Iran must establish, through sufficient State practice and opinio juris, an affirmative rule recognizing immunity for terrorist acts.

Reconciling the ICJ’s approach and burden of proof

The Court’s judgment in the Jurisdictional Immunities case does not depart from the general principle of presumption of immunity if the nature and effect of Germany’s second argument are properly discerned. If the Court had accepted Germany’s first argument, acts of armed forces being acta jure imperii would be ipso facto excluded from the territorial tort exception, rendering it unnecessary for the Court to independently ascertain the immunity accorded to the tortious acts of armed forces.

However, instead of deciding a controversial issue, the Court adjudged the case on a narrower and more settled point that the territorial tort exception does not cover the tortious acts of armed forces. To clarify, the Court never doubted the general immunity accorded to acts of German armed forces because such acts clearly constitute acta jure imperii (see para 60). Germany had to specifically establish the continued immunity accorded to tortious acts of armed forces under customary international law, only because Italy had prima facie successfully invoked the territorial tort exception (subject to its applicability to acta jure imperii in general). In effect, Germany’s second argument operated as an exception to the territorial tort exception to state immunity.

The above methodology lines up with the Court’s approach to Italy’s second argument. Italy argued for a new exception that State immunity does not exist for serious violations of humanitarian and human rights law. The Court framed the question as to whether this exception is recognized under customary international law (para 83). Thus, the ICJ’s judgment in the Jurisdictional Immunities case should be read to reinforce the rule of general immunity subject to specific exceptions. For Italy’s first argument, because Italy had prima facie rebutted Germany’s presumptuous immunity (through the territorial tort principle), Germany had to establish that its immunity continued to apply. However, for Italy’s second argument, Germany’s general immunity remained intact, as no State practice and opinio juris existed that recognized the exception in the first place.

Conclusion

If Canada invokes the alleged “terrorism exception” to justify the violation of Iran’s immunity, the Court will have to assess if sufficient State practice and opinio juris recognize such an exception. As long as state-sponsored terrorism constitutes acta jure imperii, Iran only needs to establish that the “terrorism exception” is not recognized under customary international law rather than the higher burden of establishing that immunity exists for supporting terrorism.

Several States have expressly criticized the “terrorism exception” and described it as a violation of one of the most fundamental principles of international law. The European Union and the Non-Aligned Movement, in reference to the US adoption of the Justice Against Sponsors of Terrorism Act (equivalent to Canada’s JVTA), have expressly stated that such actions would violate the principle of State immunity. Further, a Luxembourg District Court found that the terrorism exception is not recognized under customary international law (page 50).

The practice of only two countries, i.e., Canada and the US, criticized by other States, cannot meet the threshold of sufficiently widespread and representative State practice backed by opinio juris. It will be interesting to see how the ICJ tackles the questions on acta jure imperii and whether state-sponsored terrorism qualifies as a sovereign act. Moreover, the ICJ’s judgment could also clarify whether, for acta jure imperii, the starting point of the analysis is general immunity subject to certain exceptions.

Note: Views expressed in this post are personal and do not reflect the opinion of any institution with which the author is affiliated.