Executive Summary
The following memo deals with the question of state immunity in Canada. Currently, Canadian nationalssubjected to torture in a foreign State have no means of civil redress in Canada. Amending Canada’s State Immunity Act (SIA)to provide an exception to the rule of immunity in cases of torture or other jus cogens violations is one way of addressing this problem.
The SIAgoverns civil claims against foreign states. Canadian courts recognize that state immunity represents important issues of comity and mutual respect between nations. However, in cases where Canadian nationals have been tortured by a foreign state, we believe potential plaintiffsshould have recourse to an exception to general immunity laws. While controversy exists as to the exact content of jus cogens, it is well accepted that the prohibition against torture is a peremptory norm.
This memo analyzes approaches that other states, including the US, the UKand Belgium, have taken to the question of state immunity. The United States provides a civil cause of action to victims of torture or extrajudicial killing through the Torture Victim Protection Act of 1991 (TVPA). Belgium too has recently experimented with less comprehensive immunity under its law granting Belgian courts universal jurisdiction for certain offences. On October 28, 2004, a Court of Appeals in Britain ruled that Canadian William Sampson and three British nationals may pursue claims against their alleged torturers in Saudi Arabia.
The attached proposal provides an additional exception to state immunity but one that would not remove or alter existing rules and precedents relating to jurisdiction simpliciter and the balance of factors based on forum non conveniens. Maintaining these factorswill also prevent a flood of torture cases from glutting Canadian courts. The goal of this project is to suggest aspecific and workable amendment that will help victims abused in other states to obtain legal redressin Canadawhile maintaining respect for international comity and state sovereignty.
Amending Canada’s State Immunity Act
I.Why the need for an amendment in Canada?
In the past two years,several Canadians have been tortured and/or killed abroad by agents of foreign states. The high-profile cases of William Sampson, Maher Arar and Ziba Zahra Kazemi have generated an interest in creating a remedy ormeans by which victims of such violations and their families can safely seek redress.
Currently, Canadian nationals subjected to torture in a foreign State have no means of civil redress in Canada. “While human rights norms have been accumulating at a rapid pace since the end of the Second World War, the development of institutional mechanisms of enforcement has not tracked these advances. […] The result is an enforcement gap which leaves many individuals in the untenable position of possessing rights without remedies.”[1] AmendingCanada’s State Immunity Act (SIA)[2]to provide an exception to the rule of immunity in cases of torture or other jus cogens violations is one way of addressing that gap.
In the 2004 case of Bouzari v. Islamic Republic of Iran, brought by an Iranian immigrant who was tortured by government officials in his home country, the Ontario Court of Appeal dealt with the question of whether the SIA provides potential remedies for victims of torture abroad. The facts in Bouzaridemonstratedthat Ontario was the only place where Mr. Bouzari could sue. Like many victims of torture, it was impossible for Mr. Bouzari to return to the country whose government agents had tortured him in order to lodge a legal claim against the state.
In deciding that existing Canadian law precludes claims against foreign sovereigns for such acts, Goudge J.A., declared that “the wording of the SIA must be taken as a complete answer to this argument. Section 3(1) could not be clearer. To reiterate, it says: ‘3(1) Except as provided by this Act, a foreign state is immune from the jurisdiction of any court in Canada.’ The plain and ordinary meaning of these words is that they codify the law of sovereign immunity.”[3]The Bouzari Courtconcluded that the SIA occupies the field in this area and that it provides no exception for torture. The logic of Bouzari therefore suggests that civil redress in Canadian courts for grave human rights abuses committed by foreign states will be driven by legislative change, not an expansive interpretation of the existing Act.[4]
- What is the current situation in Canada?
All civil claims against foreign states in Canadian courts must proceed underthe State Immunity Act. The SIA assures immunity from the jurisdiction of Canadian courts for any foreign state, its government, the government’s members, agencies, departments and any political subdivisions within the State and their governments, agencies and members unless an expressly enumerated exception is activated. Currently, the SIA curtailsthe immunity of states in cases of i) personal injury or damage to property that occurs within Canada, ii) in relation to certain aspects of maritime law, iii) commercial transactions, and iv) in cases where the state in question has explicitly waived its immunity by actively taking part in or responding to court proceedingsexcept to contest the jurisdiction of the court. The SIA has been repeatedly upheld as a complete answer to any claim against immunity, trumpingcountervailing theoriesof implied exceptions that may exist elsewhere under the common law or international law.[5]
- What is the Purpose of State Immunity?
The law of sovereign immunity is part of customary international law and appears in national immunity laws including the SIA.[6] Canadian courts recognize that state immunity represents important issues of comity and mutual respect between nations.[7] Comity, in this context, reflectsthe existence of goodwill and mutual respect accorded by States and their domestic courts for the laws and judicial procedures of other sovereign states.
Schreiber confirms that it is not in Canada’s interest to attempt to adjudicate every – or any but the most egregious– actsof state undertaken by foreign nations. To do so would ignore the international system of dispute resolution and the fundamental principle of respect for state sovereignty. The expansive jurisdictionof Canadian courts might make other countries less inclined to respect the Canadian legal system and its authority and could lead to retaliatory lawsuits in foreign courts against Canada and/or Canadian interests. Exceptions to the law of state immunity must therefore be founded on principles accepted by the international community and remain narrow and specific.
- Why Should State Immunity be Lifted in Cases of Torture?
There are two dominant theories for lifting state immunity in cases of torture. The first is rooted in the structure of international law as a body rules found in conventions and treaties, as customary law based on the existence of widespread state practice and asopinio juris, or recognition of the legality of the custom in question. Under anormative hierarchy theory, state immunity is abrogated when the State is responsible for crimes that have the status of peremptory norms of international law, or jus cogens. Acts prohibited asjus cogens occupy a higher status than the granting of state immunity which, while part of customary international law,does not occupy the status of jus cogens. As a result, where a state has violated a norm of jus cogens, state immunity cannot attach to that act because the norm that has been violated is of greater importance. While controversy exists as to the exact content of jus cogens, it is well accepted that the prohibition against torture is a peremptory norm. Accordingly, under principles ofnormative hierarchy, state immunity should be lifted in any instance where the jus cogens prohibition of torture has been violated.[8]
Canadian courts recognize a difference between forms of international law. In Canada, conventional international law must be incorporated into domestic law through a formal act of parliament before it has domestic force and effect.[9] Customary law, on the other hand, is presumed to be directly incorporated into domestic law unless explicitly altered by contrary legislation.[10] To the extent that an act of torture constitutes a violation of customary law, Canadian courts may presume a violation of domestic law unless that presumption is refuted by a statute or treaty.
Thesecond theory, usually referred to as the implied waiver approach, first gained prominence in the United States and is a cousin to the normative hierarchy theory.[11] State immunity is a privilege granted to states as members of the international community of nations and intended to encourage smooth international relations and mutual respect among States. As a form of customary international law, this privilege is of significant importance and historical stature. However, when a State acts contrary to its international legal expectations and violates prohibitions of international jus cogens, it cannot then claim the privilege of immunity for those acts. “International law cannot bestow immunity from prosecution for acts that the same international law has universally criminalized.”[12] Under this theory, the offending state, by disregarding peremptory norms of international law, has waived its rights under international law to the extent that those rightsconflict with the illegal behaviour.
V.How Does the International Community deal with DomesticState Immunity?
The existence of peremptory norms of international law has resulted in the corresponding development of erga omnes obligations which are obligations owed to the international community. A violation of such an obligation deriving from jus cogensmaythusconstitute an offence against other states.[13] The offending state’s limitation over its right to immunity flows from the fact that it is the other state itself which hassuffered harm through the violation of the peremptory norm. The logic of this argument suggests that theinterest of the international community as a whole supersedesany singlestate’s immunity and thus the offending action can be exempted from domestic state immunity provisions.
- How Are Other States Dealing with this Issue?
Although principles of state immunityare well-respected the world over, we have found evidence of significant rethinking of state immunityin domestic and international political and legal circles. The often vociferous dissenting judgments in cases upholding state immunity reflect thisdebate.[14]Examples here are drawn from the United States, the European Court of Human Rights, Belgium and the United Kingdom.
a) The U.S.A.
The United States provides a civil cause of action to victims of torture or extrajudicial killing through the Torture Victim Protection Act of 1991 (TVPA).[15] The TVPA was intended to establish an “unambiguous . . . basis for a cause of action that has been successfully maintained under an existing law (the Alien Tort Claims Act) and provide judicial protection in U.S. courts.”[16] Liability under the TVPA attaches to an individual, not to the state as an entity or its government bodies.
Claims against foreign states, may only be brought in the United Statesby recourse to one of the exceptions to the Foreign Sovereign Immunities Act (FSIA),[17] the U.S. equivalent to the SIA. As part of the U.S. government’s response to international terrorism, the FSIA was recently amended to include an exception for “personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources … for such an act...”[18] The added exception under the FSIA is narrow and applies only to claims brought by American citizens, who were citizens at the time of the alleged events, and applies only to States already on the State Department’s list of Statessponsors of terrorism. Finally, a claim may only be brought where the claimant “afford[s] the foreign state a reasonable opportunity to arbitrate the claim in accordance with accepted international rules of arbitration.”[19]
In Princz v. Federal Republic of Germany,[20]Hugo Princz sought damages from Germany for his internment at Auschwitzand the slave labour that he provided. While ultimately upholding immunity, the D.C. Circuit recognized (as the District Court had), the difficulties of claiming immunity for violations of jus cogens norms. Summarizing the Princz case, Mathias Reimann later observed that there are three primary concerns with immunity, “They pertain to the relationship between the branches of government, to considerations of efficiency in human rights enforcement, and to the risk of suffering retaliation by foreign states. In all these respects, the arguments point both ways.”[21]
b) European Court of Human Rights
Al-Adsani v. The United Kingdom,[22]heard in the European Court of Human Rights (ECHR), also raises the question of state immunity from civil suits concerning torture. There, the plaintiff was a Kuwaiti/British national who was detained and severely tortured by State officials in Kuwait. The Plaintiff was allegedly detained in retaliation for leaking into general circulation incriminating sex tapesinvolving a sheikh. The applicant alleged that by granting immunity to the State of Kuwait, the English courtsfailed to secure his right not to be tortured and denied him access to a court. The ECHR rejected the appeal by a nine-eight split, indicating that international law’s position on this issue iscontested. The dissent in Al-Adsani asserted that since the prohibition on torture isjus cogens, or compelling law, it must override any other obligations, including the default principle ofstate immunity.
In a recent article on the Al-Adsani case entitled State Immunity – “What a Pity!”, Kay M Springham explains that the dissent observed the illogic of declaring the prohibition of torture to be a rule of jus cogens and therefore hierarchically above any other rule of international law(including the rules on state immunity) and yet to allow States to hide behind the rules on State immunity to avoid proceedings for a claim of torture made before a foreign court.[23]
c) Belgium
Belgiumtoo has recently experimented with less comprehensive immunity under its law granting Belgian courts universal jurisdiction for certain offences. With respect to state immunity, Belgian law ties claims for civil damages to criminal prosecutions. As originally drafted, the law permitted victims to file complaints in Belgium for war crimes and crime against humanity committed abroad. Following claims against former president George Bush Sr. and others for actions relating to the the 1991 Gulf War, U.S. authorities applied considerable pressure to Belgium and the law was changed. Belgian Foreign Minister, Louis Michel explained to the Senate before the act was amended, “Unhappily, the noble cause that prompted the parliament to adopt this law was hit with abuse and manipulated for political end.”[24] The law has been narrowed and now applies only if the victim is a Belgian citizen or long-term resident at the time of the crime. Moreover, the decision to proceed with the claim rests with the state prosecutor.[25]
Referring to civil law countries like Belgium, Justice Breyer’s concurrence in Sosa v. Alvarez-Machain explains that universal criminal jurisdiction necessarily contemplates civil recovery.
[C]onsensus as to universal criminal jurisdiction itself suggests that universal tort jurisdiction would be no more threatening. That is because the criminal courts of many nations combine civil and criminal proceedings, allowing those injured by criminal conduct to be represented, and to recover damages, in the criminal proceeding itself.[26]
d) The United Kingdom
On October 28, 2004, the Court of Appeals in Britain ruled that Canadian William Sampson and three British nationalswill be allowed to sue individuals, but not the state of Saudi Arabia, in British proceedings. Sampson and the four others were arrested in Saudi Arabia in 2001 after being falsely accused of involvement in a series of bombings now believed to have been orchestrated by political opposition groups. Each complainant describes being subjected to regular beatings and serious torture during their months in detention, leading to false confessions. Those confessions resulted in convictions during secret trials against Sampson and two of the others for supposed involvement in the bombing campaigns. Sampson, a dual Canadian-British citizen, would have faced the Canadian State Immunity Act as a bar against his claim in Canadian courts.
Saudi Arabiasought to prevent these claims from advancing by claiming immunity under the British State Immunity Act 1978. The Saudi Government claimed immunity both in its capacity as a State as well as on behalf of the officials named individually in the civil actions.
The Court of Appeal held that individuals, including officials of a sovereign State, cannot benefit from the protection of State immunity in connection with a case based on allegations of systemic torture. Lord Justice Mance answers many of the concerns levied in Canada as much asGreat Britain against any expansion of exceptions to wholesale state immunity, even for cases of systemic torture.
At paragraph 71, Lord Justice Mance addresses the supposed incongruity between the definition of torture, which seems to require that the act stem from official state authority, with the protection of state actions under state immunity provisions. He writes: