Governmental and Non-Governmental Acts in Terrorism Exceptions to Sovereign Immunity

 

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The Islamic Republic of Iran (“Iran”) brought proceedings in the International Court of Justice (“ICJ”) against Canada on June 27, 2023, alleging that Section 6.1(1) of Canada’s State Immunity Act (SIA), its “terrorism exception,” violates Iran’s sovereign immunities from jurisdiction and enforcement under customary international law. Section 6.1(1) creates an exception to the jurisdictional immunity of foreign sovereigns for proceedings related to alleged support of terrorism. In its Application Instituting Proceedings, Iran argues that the customary international law of state sovereign immunity does not permit states to make exceptions for state-sponsored terrorism. Although Iran brought a similar claim against the United States in Certain Iranian Assets regarding the similar terrorism exception in Section 1605A of the United States’s Foreign Sovereign Immunities Act, the ICJ determined it lacked jurisdiction over this claim. Scholars have noted that Iran’s new action against Canada is likely also targeting the United States, where “courts have awarded billions of dollars in damages against Iran under terrorism exceptions.”

Responding to a post by Professor Maryam Jamshidi, Professor William Dodge analyzes the existence of terrorism exceptions to sovereign immunity in state practice and ultimately concludes that they do not violate international law because, “under the restrictive theory, states are immune from suit for their sovereign acts,” and “[t]errorism and supporting terrorism are not sovereign acts.” By contrast, Keshav Somani at EJIL:Talk! concludes that “Iran only needs to establish that the ‘terrorism exception’ is not recognized under customary international law” as long as “state-sponsored terrorism constitutes acta jure imperii,” and that Iran will be successful because the practice of only two states is not sufficient to establish customary international law.

Both arguments are insightful and well-constructed, and their differing conclusions result in part from their disagreement on the nature of state-sponsored terrorism. Whereas Professor Dodge views state-sponsored terrorism as acta jure gestionis, or a non-sovereign act, Mr. Somani views states-sponsored terrorism as acta jure imperii, or a sovereign act. In my view, however, these classifications are too broad; while some state-sponsored terrorism is acta jure gestionis, other state-sponsored terrorism is acta jure imperii. Using this reasoning, the ICJ would find that Canada’s terrorism exception (and the United States’) violates customary international law only to the extent that it permits jurisdiction over acts of terrorism that constitute acta jure imperii.

Acta Jure Imperii and Acta Jure Gestionis

As Brownlie’s Principles of Public International Law states, it is widely accepted that the restrictive theory of sovereign immunity under customary international law grants states immunity from the jurisdictional and enforcement powers of another state for conduct involving “the exercise of governmental authority.” This includes conduct that is unique to the state, such as the use of military and police power, taxation, and decisions relating to immigration and citizenship. States are generally not immune from acta jure gestionis, however, which is defined as conduct involving commercial transactions and other things that can be done by private entities.

In Jurisdictional Immunities of the State (“Jurisdictional Immunities”), the ICJ observed in paragraph 61 that “States are generally entitled to immunity in respect of acta jure imperii,” which “is the approach taken in the United Nations, European and draft Inter-American Conventions, the national legislation in those states which have adopted statutes on the subject and the jurisprudence of national courts. In discussing the tort exception to immunity, the Court noted that some national courts limit this exception to acta jure gestionis. This limitation on the tort exception is not reflected in Article 12 of the U.N. Convention or other international sources, but the Court noted in paragraph 64 that some states had commented that Article 12 did not comply with customary international law to the extent that it permitted jurisdiction over acta jure imperii. As noted in Jurisdictional Immunities, Article 11 of the European Convention on State Immunity, and the identical Article 12 of the United Nations Convention on Jurisdictional Immunities of the State and Their Property, say that states cannot invoke sovereign immunity “in a proceeding which relates to pecuniary compensation for death or injury to the person, or damage to or loss of tangible property,” that occurs in the territory of another state by an act attributable to a state. As both these treaties make exceptions for military activities, it is likely that these types of torts would be considered acta jure gestionis so long as they are not military activities – for example, a state likely should not be immune from damage caused by a traffic accident, as driving to work is not an act that is unique to the state. On the other hand, an assault or battery committed by a law enforcement officer while on duty is more likely to be considered acta jure imperii, as the police power is generally considered to be a sovereign power of the state.

The Court did not address this specific question in Jurisdictional Immunities, but it illustrates the nuance that the Court should apply to decide Iran’s claim against Canada. “Terrorism” is a broad category under which many types of conduct fall, and “support” for that terrorism is even broader. Further, terrorism is often driven by non-state actors who wish to influence the behavior of states, which introduces other facets of international law. While customary international law does require immunity for state-sponsored terrorism that amounts to acta jure imperii, it does not require immunity for state-sponsored terrorism that amounts to acta jure gestionis. Instead of determining whether an exception for state-sponsored terrorism exists in customary international law, the ICJ should instead apply the existing structure of sovereign immunity to determine that Canada’s terrorism exception only violates international law to the extent that it denies jurisdictional and enforcement immunity for acta jure imperii that is, or supports, terrorism.

Alleged Violations of State Immunities

Iran’s Application cites Zarei v. Iran as an example of a case that violated its sovereign immunity. In Zarei v. Iran, the 2021 Ontario Superior Court held that Iran was not immune from jurisdictional and enforcement jurisdiction for the deaths of Canadian citizens or legal residents as a result of the Iranian Revolutionary Guard’s downing of Ukrainian International Airlines Flight PS752 because this action constituted an “act of terrorism.” The court cited to multiple experts, as well as the official statements of Iran, to determine that the Iranian military had intentionally downed Flight PS752 and it therefore constituted an act of terrorism that was not immune from jurisdiction under Canada’s SIA. The court also noted a statement from Iran’s official Final Report of the Aircraft Accident Investigation Board of the Islamic Republic of Iran, which stated that “Iranian officials… would exact revenge on the U.S.” for the assassination of General Soleimani.

Canadian law aside, the question of intentionality is not relevant to an analysis of sovereign immunity under customary international law. Intentional acts are still immune from liability when they constitute acta jure imperii, and in this case, Iran has a strong argument that the direct actions taken its military constitute acta jure imperii; not only were they taken by an official organ of the Iranian government, but the act itself was of a military nature, and therefore governmental. Assuming that Iran’s actions were considered acta jure imperii, it follows that Canada’s Section 6.1(1) violated customary international law in this case.

This analysis grows more complicated, though, when examining the U.S. cases cited by Iran. Iran’s Application cites multiple U.S. suits brought against Iran, including the 2016 decision In re: Terrorist Attacks on September 11, 2001 from the Southern District of New York. The multi-district litigation is complex, but the cited judgment against Iran relies on a finding of facts that state that Iran provided a wide scope of support to various organizations, including al Qaeda and Hezbollah, that ranged from providing training, shipments of weapons, extensive financial support, and that Iran sheltered members of al Qaeda sought by the United States after the 9/11 attacks. While Iran would have a strong argument that at least some of its conduct, such as determining which individuals can legally reside within its territory, is acta jure imperii, the nature of Iran’s other conduct is less clear. Analysis of the specific allegations is required to determine whether the terrorism exception in this case violated customary international law.

As noted on page 471 of Brownlie’s, the distinction between acta jure imperii and acta jure gestionis “raises difficulties in application and definition” regarding the “range of functions in which states engage” and using this approach may lead to other questions, such as the relationship with non-state actors, state attribution, and the boundaries of sovereign immunity. However, this approach would also provide a framework rooted in customary international law to examine the terrorism exception as well as any future contested exceptions to sovereign immunity that will not risk a slow erosion of the doctrine.

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