THE QUEST FOR JUSTICE FOR VICTIMS OF TERRORISM: INTERNATIONAL LAW AND THE IMMUNITY OF STATES IN CANADA AND THE UNITED STATES.

• Author: Coombes, Karinne
• Position: Forum: Rights in Times of Challenge

Introduction

On September 4, 1997, three suicide bombers killed five people and injured almost two hundred others at the Ben Yahuda Street pedestrian mall in Jerusalem. Among the injured were a Canadian, Sherri Wise, and three Americans, Diana Campuzano, Avi Elishis, and Greg Salzman. The attack occurred on the last day of a volunteer internship that Dr. Wise, a dentist, was completing at a dental clinic serving underprivileged children. (1) Hamas, which has since been recognized as a terrorist organization by Canada (2) and the United States, (3) claimed responsibility for the attacks. Six years later, on September 10, 2003, the U.S. District Court for the District of Columbia awarded Campuzano, Elishis, and Salzman tens of millions of dollars in damages against Iran due to its material support for Hamas. (4) Despite being successful in their claim against Iran, the plaintiffs in Campuzano faced the prospect of not receiving compensation because Iran had insufficient assets in the United States against which the judgment could be enforced. Fourteen years after the Campuzano plaintiffs "won" by securing a judgment against Iran, they moved a step closer to obtaining damages from Iran when the Court of Appeal for Ontario unanimously upheld in Tracy (Litigation Guardian of) v Iranian Ministry of Information and Security (5) the finding of the Ontario Superior Court of Justice (6) that the U.S. Campuzano judgment (plus nine others (7) in favour of over 100 U.S. plaintiffs) could be enforced against Iranian assets in Canada. In March 2018, the Supreme Court of Canada dismissed Iran's application for leave to appeal, rendering the Court of Appeal's decision final. (8)

Tracy (Appeal) is noteworthy because it was the first case decided under Canada's Justice for Victims of Terrorism Act. (9) With the JVTA, Canada joined the United States as the only states in the world that have implemented legislation permitting domestic civil claims by victims of terrorism abroad against foreign states that have been designated as sponsors of terrorism. While denying states immunity from such claims has a firm moral foundation, it raises a number of issues that will be explored in this paper. Among these issues is whether Tracy (Appeal) has resulted in Canada violating Iran's right to jurisdictional immunity under international law. As the 2012 decision of the International Court of Justice (ICJ) in Jurisdictional Immunities of the State (Greece Intervening) suggests, there is a strong argument that denying jurisdictional immunity to states in these circumstances violates current customary international law. (10) For the law to evolve to permit such claims, states will need to recognize more consistently that they do not enjoy jurisdictional immunity in these circumstances. Whether international law will evolve is questionable, as there may be compelling reasons for states to resist this evolution, including their concern that it may erode state sovereignty and risk negative consequences for international relations. The experience of victims in the United States (and, potentially, Canada) may also lead states to conclude that civil claims are not an effective means of achieving justice for victims of terrorism.

The paper begins with an overview of international law and the principle of state immunity, which is included to provide a necessary introduction for readers who are unfamiliar with these topics. Part two assesses the practice of Canada and the United States by examining the legislated exceptions to state immunity that allows claims against foreign states that sponsor terrorism, as well as the decision in Tracy (Appeal). Part three returns to international law and explores the decision of the ICJ in Jurisdictional Immunities. (11) This examination calls into question whether, through Tracy (Appeal), Canada has violated Iran's right to immunity under current customary international law. Part four considers the potential for Canada to be a "custom breaker" leading the way towards the recognition of a new exception to state immunity under international law. Since an evolution in international law would require additional states to embrace the legality of such claims, part five addresses the risks that may result from allowing civil claims against states and part six canvasses alternative means for achieving justice for victims of state-sponsored terrorism and other international crimes.

The quest for justice for victims is unarguably laudable. Deterring heinous violations of individual rights and achieving justice for victims ought to be goals toward which the international community strives. As such, there is a strong moral argument that it is appropriate and legitimate to hold states accountable for their wrongs through civil claims in domestic courts and that it is incumbent upon all states to support lifting immunity to allow for such claims. However, as this paper demonstrates, since international law is created by states, it may not always result in just outcomes; despite Canada's laudable intentions, its legislation allowing for claims against foreign states designated as sponsors of terrorism is likely inconsistent with the current international law. Jurisdictional Immunities and the recent reaction of states to U.S. practice suggest that international law does not presently support an exception to state immunity for claims alleging violations of fundamental individual rights committed outside of the forum state--including violations arising from state-sponsored terrorism.

Since the scope of state immunity remains defined by customary international law in accordance with state practice, whether the law will evolve to permit such claims depends on states accepting a new exception to state immunity. Canadian legislators should determine if Canada wants to help spur an evolution in international law to allow for such claims. If Canada wants to be an effective leader on this issue, it should encourage other states to accept that state sovereignty must yield to efforts to ensure respect for individual rights and that international law should evolve so that states are not entitled to jurisdictional immunity when they violate fundamental human rights. An assessment of the potential risks that arise from allowing claims against states suggests, however, that it is overly optimistic to conclude that an evolution in the law will be forthcoming in the near future. Rather than align with what is considered just and fair from a moral perspective, international law may reflect the assessment by states of what rules best serve their interests. Although states may be sympathetic to the plight of victims of state-sponsored terrorism (and other serious violations of human rights), states may hesitate to recognize a new exception for a number of reasons, including the risk that permitting such claims may erode state sovereignty and pose undesirable consequences for international relations. Further arguments may be raised against recognizing a new exception if the benefit of such claims for victims is largely symbolic when lengthy, costly, and uncertain litigation results in judgments that are unenforceable. This paper concludes that, while an evolution in international law admitting a new exception may not occur in the near future and civil claims against foreign states may be unlikely to achieve accountability, the international community of states should still strive towards more fully respecting and securing individual rights. It is incumbent on states to work towards achieving justice by pursuing alternatives to civil claims, including criminal prosecutions and meaningful sanctions against individuals who violate the fundamental rights of individuals and the states on behalf of which such individuals act or by which they are supported.

1. State Immunity from Enforcement Jurisdiction Under International Law

   State immunity is a complex issue on which manuscripts have been written. (12) Since a fulsome examination of state immunity is beyond the scope of this paper, only a brief overview of state immunity will be provided here. This part provides an introduction to international law before turning to state immunity in order to assist with establishing why Canada's denial of state immunity pursuant to the JVTA (13) may challenge current international legal principles. Although there has been increasing recognition of the rights of individuals at an international level, the limited potential for individual rights to be secured through legal means is evident when efforts to achieve justice run counter to long-standing principles of a state-centric international legal system.

   (a) International Law and Its Binding Obligations for States

   Modern public international law has, historically, been state-centric, with states being its predominant subjects and authors. States are the subjects of international law because the law primarily gives rise to binding obligations for states and thereby restricts what actions one state may take vis-a-vis another state and, in some cases, individuals or groups of individuals. States are the authors of public international law because they create international law. This "positivist" (14) view of international law as created by states is reflected in the primary sources of international law: conventions (also commonly known as treaties) and customary international law. (15) Treaties are international agreements negotiated by states. The necessity of state consent to international law is illustrated through how treaties operate: treaties are only binding on states that have formally agreed to the treaty-based rules by signing and ratifying the specific treaty and, even then, these rules are only binding with respect to the mutual relations among states that are party to the treaty in question (and, even then, only to the extent that the state has not made a reservation to certain aspects of the...