In part one of this commentary, I mainly sketched the development of the principle of foreign state immunity from an absolute concept to its current circumstances in which lawsuits arising from commercial activities of states are excepted from immunity.
I recalled that it was in the national legal realm that both the rule of state immunity itself and the commercial activities exception were developed. And I concluded, therefore, that it was misconceived for the House of Lords in Jones v. Saudi Arabia to chide the Italian Supreme Court in Ferrini for seeking to develop a new exception for torture.
In fact, the displeasure of the House of Lords in Jones in this regard was directed not only at the Italian Supreme Court in Ferrini, but also at the U.S. Congress for its amendment of the U.S. Foreign State Immunity Act of 1976, in order to permit American Courts to exercise jurisdiction over foreign states in lawsuits alleging torture suffered abroad in the hands of state-sponsors of terrorism. The amendment appears in virtue of the Anti-Terrorism and Effective Death Penalty Act of 1996.
Once again, it is submitted that the irritation of the House of Lords is misplaced. Article 38(1)(b) lists customary international law as a source of international law. Customary international law is explained as the general practice of states accepted as law.
State practice, for its part, is nothing more than the way in which an influential state, or a group of them, would behave and which behaviour became generally fashionable within the community of nations. If they behaved that way long enough - believing that they were legally bound so to behave - the behaviour would then become a rule of customary international law.
It is by this process that rules of customary international law are both initiated and subsequently varied. As a matter of state practice then, the U.S. Congress was perfectly entitled in international law to amend its Foreign State Immunity Act by enacting the AEDPA, in order to permit lawsuits against foreign-state sponsors of terrorism, for tortures suffered as part of those acts of terrorism.
The actual application of the principle, insofar as it relates to the current gadabout concept of terrorism, is quite another matter. This is the case given a certain lack of agreement in international law on the definition of terrorism. This lack of agreement is largely inspired by considerations such as that expressed many years ago by Uri Avnery of Israel: “The difference between freedom fighters and terrorists is that the freedom fighters are on my side and the terrorists are on the other side.”
There is, of course, a limit to the elasticity of that hypothesis. The 9/11 bombers could not, by any objective reckoning, be conceived as engaged in freedom fighting. They were simply engaged in the targeting of civilian populations for spectacular or systematic violence, calculated to inspire extreme alarm in the minds of civilians. In this sense, terrorism is a classic crime against humanity and as such an international crime. The motive for such an attack is and ought to be truly irrelevant.
In the annals of international criminal law, terrorism is the evil kin of torture. Terrorism is in the hands of the non-state actor what torture is in the hands of the more powerful state actor. Although there is no exclusivity of usage one to the other, since states can and do commit or sponsor terrorism and non-state actors can and do commit torture.
Terrorism and its kin, torture, ought to constitute exceptions to the plea of foreign-state immunity on the part of any foreign state alleged to have committed such acts. Although neither of these exceptions has yet been recognized in international law, there is nothing in principle that poses a legitimate obstacle to the establishment of state practice that seeks to motivate a change in customary international law that would introduce such exceptions in customary international law.
The Americans have started such a process by virtue of AEDPA. Once again, one needs only recall Lord Denning’s observation that:
Whenever a change is made, some one some time has to make the first move. One country alone may start the process. Others may follow. At first a trickle, then a stream, last a flood. England should not be left behind on the bank. ‘... we must take the current when it serves, or lose our ventures.’
Canada should not be left behind on the bank of the development of international law so as to recognize the torture and terrorism exceptions to the principle of state immunity. Canada can lead the way in this development. Perhaps bill S-218, currently in the Senate, affords an opportunity in that direction. It seeks to give Canadian courts jurisdiction over foreign states for injuries and damages suffered in connection with state-sponsored terrorism. This is a good step, and the jurisdiction should extend to torture.
Chile Eboe-Osuji is Counsel at the Ottawa office of Borden Ladner Gervais LLP, and a he teaches part time at the Faculty of Law of the University of Ottawa. He is a former senior prosecutor at the United Nations International Criminal Tribunal for Rwanda. Any opinion expressed in the foregoing article is entirely his own. He may be reached at firstname.lastname@example.org