Lorna McGregor, Senior Lecturer, School of Law, University of Essex. Her publications include: Torture and State Immunity: Deflecting Impunity, Distorting Sovereignty’, 18 European Journal of International Law 903 – 919 (2007) and ‘State Immunity and Jus Cogens’, 55(2) International and Comparative Law Quarterly 437 – 445 (2006)
2011 is already proving to be an eventful year for those interested in the relationship between immunities and allegations of torture and extra-judicial killings. Both the European Court of Human Rights (in Jones v. United Kingdom, Mitchell & Ors v. United Kingdom and Nait-Liman v. Switzerland) and the International Court of Justice (in Germany v. Italy – previous EJIL:Talk! posts here and here) have cases pending before them and two lower courts in Canada and the US have recently issued judgments on the subject-matter immunity of foreign officials. Both Kazemi v. Iran and Ors (Canada) and the district court decision in Yousuf v. Samantar (US) involve allegations of torture and extra-judicial killings committed in Iran and Somalia respectively. Although the courts in both decisions found that foreign governmental officials sued in those cases do not possess subject matter immunity, they reached this conclusion by very different means. While the US Supreme Court in Samantar had denied that the US Foreign Sovereign Immunity Act did not apply to individual officials, the Canadian court in Kazemi held that the Canadian State Immunity Act does apply in principle to individual officials. The US District Court rejected immunity for the official by deferring to the views of the executive while the Canadian case reached the decision on the basis of judicial interpretation of the domestic tort exception to immunity.
Kazemi v. Iran
At the end of January, the Canadian Superior Court of Quebec issued its decision in Kazemi v. Iran and Ors. Stephan Hashemi, the son of a Canadian photojournalist, Zahra Kazemi, who was allegedly tortured and killed in an Iranian prison in 2003, instituted civil proceedings in the Canadian courts against the Islamic Republic of Iran, its Head of State, Chief Public Prosecutor and Deputy Chief of Intelligence. He brought the action on behalf of his mother’s estate and also claimed for the emotional and psychological injuries he allegedly suffered in Canada as a result of his mother’s detention and death and Iran’s subsequent refusal to repatriate her body to Canada.
The decision is unremarkable in its treatment of the claims of the estate of Zahra Kazemi against the Islamic Republic of Iran and its Head of State. The Court found that,
It is quite clear that, based on the wording of the [State Immunity Act] SIA, the State of Iran, as well as its Head of State, the Ayatollah Ali Khamenei (provided that the latter acted in a public capacity) are immune from jurisdiction of any Court in Canada. This affirmation does not need further analysis or comment. (para. 98)
This conclusion was reached on a literal reading of the SIA which expressly covers foreign states and heads of state and provides a general rule of immunity subject to specific exceptions, within which torts committed outside of Canada’s territory do not feature (paras. 53 and 98). The Court also refused to consider whether or not the SIA was constitutional on the basis that it could only do so in cases in which it has jurisdiction to hear the complaint. Here, it found that the SIA ‘takes away the court’s jurisdiction’ (para. 170), asserting that the ‘law in this case is a shield and not a sword’ (para. 173). This construction reflects a contested point of international law between those who agree that immunity is determinative of jurisdiction and those, including myself, who understand immunity as an exception to jurisdiction. Its relevance is particularly apparent in cases such as Kazemi where the interpretation prevents an assessment of the constitutionality of a particular piece of legislation.
Despite its allegiance to the literal language of the SIA when addressing the immunity of the foreign state and head of state, the Court then adopted the opposite method of interpretation in examining the immunity of the Chief Public Prosecutor and Deputy Chief of Intelligence. The Court acknowledged that on its face, the SIA does not provide subject-matter immunity to foreign officials. Indeed, it referred to a similar complaint of torture and extra-judicial killings brought in US courts against the former Prime Minister and Minister of Defence of Somalia. Last year, in Yousuf v. Samantar , the US Supreme Court found that the Foreign Sovereign Immunities Act (‘FSIA’) does not cover officials on a textual reading of the statute. As a result, it remanded the case to the District Court to decide whether or not the common law provides immunity to the defendant (see discussion below). Rather unconvincingly, the Kazemi Court distinguished Samantar despite acknowledging the similarities between the SIA and FSIA (para. 124). It claimed that it could still read subject-matter immunity into the text of the SIA despite its apparent absence as in contrast to the FSIA, the SIA ‘appears to have codified all applicable common law principles into the SIA which constitutes the unique legislative source on the question of state immunity’ (paras. 132 and 137). It also reasoned that a state would be impleaded by a suit against one of its officials and ‘[t]o give immunity to a government department and to deny it to its functionaries would render the State Immunity Act ineffective and inoperative’. (para .112)
Whatever position one takes on this issue, the decision is problematic in its failure to explain how the SIA codified all common law on immunity and why a suit against an official renders the SIA ‘ineffective and inoperative’. While there is relatively little authority on subject-matter immunity, two theories are usually advanced to justify its availability. First, that a suit against a foreign official actually reflects an attempt to circumvent state immunity as states can only act through their officials but are the sole bearers of responsibility. Second, that subject-matter immunity does not relate to the responsibility of the state or the official but is simply a jurisdictional bar to suit on the assumption that the foreign state will deal with the allegations through its own legal system. Both of these explanations require unpacking and proper consideration where torture and extra-judicial killing are alleged. In Kazemi, the Court did not even address the first rationale despite complex questions concerning the concurrency of individual and state responsibility and the denial of immunity for the same crimes in criminal proceedings, even where the state is conceptually ‘impleaded’ (see Dapo Akande and Sangeeta Shah’s recent article in the European Journal of International Law). The Court also side-stepped the second justification by finding that it could not take the relevance of the purported lack of access to justice in Iran into account due to SIA’s removal of the Court’s jurisdiction.
Had the Court not tried to shoe-horn subject-matter immunity into the language of the SIA, it would have had to consider the status, scope and rationale for subject-matter immunity in international law where torture and extra-judicial killings are alleged. Given what is at stake for litigants in these types of cases, a more fully reasoned decision squarely addressing these complex issues would have been more palatable.
At the same time, the decision breaks new ground in its denial of immunity to the defendants for the alleged psychological and emotional injuries suffered by Mr. Hashemi while in Canada. The Court did not limit itself to physical injuries caused on the forum state’s territory but rather characterised Mr. Hashemi as ‘directly a victim of prejudice corporel’ (para. 78). It reasoned that:
‘ “Trauma” or “traumatisme” in French, is not the equivalent of “mental distress”. The notion of “trauma” brings almost automatically an attack upon the physical integrity of the person enduring it … Accordingly, if the allegation of psychological and emotional trauma is taken as averred, one must conclude that Mr. Hashemi’s physical integrity has been attacked’ (paras 79 – 81).
‘Mr. Hashemi endured this traumatic prejudice while he was residing in Canada and this sufficient to trigger the exception in section 6(1) SIA. If the Plaintiff can prove that his alleged “trauma” touches upon his physical integrity or constitutes the equivalent of a “nervous shock” as elaborated by Canadian courts in Schreiber and Andrusiak, then the immunity of the Defendants shall be non-existent. The existence, the effects and depth of his trauma are matters that should be demonstrated at trial before the judge seized of the merits of this case.’ (para. 92)
On this reasoning, it applied the exception to the general rule of immunity in the SIA on the grounds that the tort occurred in Canada. From a reparation perspective, this interpretation is welcome in recognising the often overlooked suffering that family members of torture victims experience and will likely lead to suits in Canada and elsewhere on similar grounds.
Yousuf v. Samantar
Turning to Yousuf v. Samantar, as noted above, the Supreme Court remanded the case to the District Court level for consideration of the availability of subject-matter immunity under the US common law. Again in a fascinating decision raising many interesting points for international law, the District Court deferred to the State Department’s Statement of Interest which expressly submits that Mr. Samantar, as a former Prime Minister and Minister of Defence of Somalia, does not enjoy immunity from the jurisdiction of the US courts where torture and extra-judicial killings committed in Somalia are alleged (see documents on the case here). The Statement of Interest is tightly reasoned and focuses on two independent grounds. First, that the US government does not currently recognise a government in Somalia and therefore no government exists to assert or waive immunity in this case. Second, Mr. Samantar is resident in Virginia and in the State Department’s view, ‘enjoys the protection of U.S. law ordinarily [and so] should be subject to the jurisdiction of our courts, particularly when sued by U.S. residents … Basic principles of sovereignty, nonetheless, provide that a state generally has a right to exercise jurisdiction over its residents’.
The reasoning, while not foreclosing a successful appeal by Mr. Hashemi on behalf of his mother’s estate, does not offer him any assistance either as it is tied to the specific facts in Samantar which do not arise in Kazemi. Nonetheless, the Statement of Interest raises interesting legal and policy questions that without doubt will be the subject of energetic debate both inside and outside of the US on the role of the Executive in suggesting immunity; whether a state must actively assert immunity and the implications thereof when the forum state does not recognise that a foreign government exists; and the significance of the jurisdictional link of the defendant’s residency to an immunity assessment.
Like Kazemi, Samantar will most likely be appealed on this point and so the story will not end here.