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FOREIGN STATE IMMUNITY AND HARASSMENT OF DISSIDENTS
Richard Garnett[1]*
Authoritarian states have long sought to suppress freedom of expression by dissidents living in democratic societies. Acts of assault, kidnapping, torture and even assassination have been perpetrated by states, with computer surveillance and targeting being the most recent methods employed. The legal position of dissidents and their families who seek redress for such conduct is complicated by the rules of foreign state immunity. While international consensus exists in favour of the view that a foreign state should have no immunity for private or commercial acts, this rarely helps dissident claimants since the conduct complained of is normally ‘sovereign’ in nature. Several states have enacted versions of the ‘territorial tort’ exception, which lifts immunity in cases of tortious conduct of the foreign state occurring in the forum state. This exception however has been interpreted to impose immunity in cross-border cases in some jurisdictions. There is also the unresolved problem of human rights abuses that occur entirely outside the forum state.
Contents
Authoritarian regimes have long engaged in a variety of methods to suppress opposition and dissent. Arrest, kidnapping, assault, torture and even killing have been routinely employed against persons who criticise the government or its members. When such acts are performed against dissidents or activists within the territorial boundaries of the perpetrator state, then the conduct has been traditionally easy to conceal or deny with limited accountability for the state or redress for the victim. However, where the dissident has escaped to a foreign country — especially one with liberal standards of freedom of expression — not only is it more difficult for the authoritarian state to control the conduct of such a person, but any measures taken are more visible and conspicuous. Yet the desire of some states to monitor and silence their critics remains strong, and recently there have been some spectacular and horrifying cases of cross-border repression, including the killing of the United States journalist Jamal Khashoggi in Türkiye by Saudi Arabian government officials and the poisoning of Alexander Litvinenko in the United Kingdom by individuals acting on behalf of the Russian government.[1] Harassment of dissidents may also take more subtle and less gruesome forms, such as remote computer surveillance or assault in the streets. How can a dissident or his or her family obtain redress for injury caused by such acts?
Obviously, a claimant in such circumstances would hardly consider commencing an action in the courts of the offender state. Not only would the claimant’s safety and security be possibly imperilled by their travelling to the foreign state, but such courts would be unlikely to be impartial or independent of their state’s executive in their adjudication of the claim. The only real option, therefore, is for the claimant to sue in the courts of another state, where he or she is more likely to receive a fair hearing and an effective remedy. The issue explored in this commentary is the extent to which such actions are possible. Specifically, will a court in State B have jurisdiction in an action against State A for acts performed either within State A or State B?
This inquiry involves an investigation into the law of foreign state immunity, which is a doctrine of public international law whereby a foreign state is immune from the jurisdiction of another country’s courts when sued as a defendant. Some nation-states, such as Australia, the UK and US, have enacted immunity legislation[2] while others rely on treaty provisions[3] or principles of customary international law to determine such disputes. In the past 50 to 60 years, the public international law rules of immunity have changed substantially. Before that time, it was well established in customary international law that a state could never be impleaded before the courts of another country; it was said to enjoy absolute immunity from adjudication.[4] The rationale for this view was the sovereign equality of states — it was considered incompatible with a state’s sovereignty for it to be subject to the jurisdiction of another state’s courts without consent.[5] The rule of absolute immunity began to weaken after the Second World War as states increasingly engaged in commercial activities with private corporations. The idea developed that it was no longer appropriate for a state to enjoy all the privileges of statehood when it was acting in a similar manner to a private entity. Specifically, a state should not be able to rely on the defence of immunity in all cases when sued in a foreign court. The interest of the private claimant in obtaining redress for injuries and losses suffered also had to be considered. Consequently, a new rule of ‘restrictive immunity’ emerged based on the distinction between sovereign acts and private or commercial acts.[6] Generally speaking, sovereign acts are those of a particularly governmental nature which no private person could ordinarily perform, while private or commercial acts can be performed equally by governments or private entities.
Another principle that loosened the grip of the doctrine of absolute immunity was the assertion by states of their sovereign power to regulate, as far as possible, all matters within their territorial jurisdiction.[7] While a foreign state’s sovereignty remained an important factor in any decision to adjudicate, the interest of the forum state (state of adjudication) in protecting its nationals and residents (and others temporarily present in the forum territory) from harm was also relevant. A forum state has an ‘obligation to provide safety and security for persons ... within its territory’.[8] Hence, a further exception to foreign state immunity emerged, known as the ‘territorial tort’ or non-commercial tort principle, which allows a forum state court to adjudicate wrongs committed by a foreign state in the territory of the forum. The territorial tort exception applies to both sovereign and private acts of a foreign state,[9] but is not accepted by all states, which has led to debate as to its status in customary international law.[10]
A more recent development in the law of foreign state immunity concerns whether there should be an exception for human rights violations. The issue arises where an individual, for example, is tortured by a foreign state within the state’s own territory. If the claimant sues in a country which recognises restrictive immunity based on the sovereign–private acts distinction, the suit will be barred because torture is considered to be a sovereign act, particularly when employed against political activists. Equally in countries that adopt the territorial tort exception, immunity applies because the act occurred in the foreign state.[11] The claimant dissident is left with no remedy. Various human rights exceptions to immunity have been proposed to address this situation, which are considered further below.[12]
This commentary will examine the doctrine of foreign state immunity in the context of harassment of dissidents. The structure is as follows: Part II considers the territorial tort exception to immunity and its application to certain situations such as assault, killing, torture and computer surveillance in relation to dissidents and the status of the exception in customary international law. Part III then considers the current position on human rights and immunity, from the perspectives of both customary law and developments in North America.
All forms of harassment by foreign states and dissidents normally involve intentional torts. In those nation-states that have immunity legislation, as well as those who are parties to the United Nations Convention on Jurisdictional Immunities of States and Their Property (‘UNCSI’) or the European Convention on State Immunity (‘ECSI’), the territorial tort exception to immunity is the key provision.[13] The language of each exception is, however, not uniform. In those states with no immunity legislation and who are not a party to the UNCSI or ECSI, there is normally no equivalent of the territorial tort exception and so the sovereign–private/commercial acts distinction is applied to the question of immunity.[14] Application of this test would lead to most dissident harassment claims being dismissed as the conduct of the foreign state is generally considered sovereign in nature, given the political context in which it occurs. Hence, the US Supreme Court has confirmed that acts of arrest, imprisonment and torture by a foreign state are an exercise of its ‘police powers’, not actions an ordinary private person would perform.[15] An assault on a political activist by state agents has also been classified as a sovereign act,[16] as has state-sanctioned clandestine computer surveillance of a dissident.[17]
By contrast, as noted earlier, the territorial tort exception in national legislation (and the UNCSI or ECSI) applies to both sovereign and private acts of a foreign state. Attempts to limit the exception only to private conduct have been firmly rebuffed in court decisions[18] and commentary.[19] It is therefore unsurprising that most of the cases in which foreign state harassment of dissidents has been challenged have occurred in states with the exception. This context will be the primary focus of the commentary.
Consideration will first be made of the three main versions of the territorial tort exception, followed by an application of those principles to specific examples of harassment of dissidents.
There are three main versions of the territorial tort exception. The first is found in the UK and Australian legislation. The second is contained in the US and Canadian immunity statutes, and a third model is provided in the UNCSI and ECSI.
The UK and Australian legislation are relevantly identical. Section 5 of the State Immunity Act 1978 (UK) (‘SIA’) provides that ‘a [foreign] state is not immune as respects proceedings in respect of ... death or personal injury ... caused by an act or omission in the United Kingdom’. Similarly, s 13 of the Foreign States Immunities Act 1985 (Cth) (‘FStIA’) provides that ‘a foreign state is not immune in a proceeding in so far as the proceeding concerns ... the death of or personal injury to a person ... caused by an act or omission done or omitted to be done in Australia’.[20]
The second approach is found in the US and Canadian versions of the territorial tort exception. Section 1605(a)(5) of the Foreign Sovereign Immunities Act 1976 (US) (‘FSIA’) removes immunity for ‘personal injury or death ... occurring in the US and caused by the tortious act or omission of the foreign state’. Likewise, s 6(a) of the State Immunity Act 1985 (Canada) (‘SIA (Can)’) withdraws immunity ‘in any proceedings that relate to ... any death or personal or bodily injury ... that occurs in Canada’.[21]
Third, the UNCSI provides in art 12 that
a state cannot invoke immunity from jurisdiction before a court of another state which ... relates to the pecuniary compensation for death or injury to the person ... caused by an act or omission which occurred in whole or in part in the territory of that other state and if the author of the act or omission was present in that territory at the time of the act or omission.[22]
Article 11 of the ECSI is similar, although more obscurely worded. Instead of requiring ‘an act’ in the forum state that causes personal injury it refers to the ‘facts which occasioned the injury’ occurring in the forum.[23]
The key feature of the UK and Australian provisions is that immunity is excluded where the foreign state has performed an act or omission in the forum state’s territory causing death or personal injury to the claimant. The focus is therefore on the place of the act causing harm and not the place of harm itself. The drafters of the Australian legislation defended this choice on the basis that determining the place where a wrongful act or omission occurred is usually simpler than determining where the damage occurred.[24] The large volume of cases in private international law where courts have grappled with the question of where a tort has occurred may seem to belie this statement.[25] Yet, choosing the place of the act may be defended for two reasons. First, it aligns with the accepted principle in common law systems of private international law that the country in which the wrong occurred is normally considered the most appropriate forum for adjudication of torts.[26] Second, it is consistent with the common law choice of law rule for torts which gives considerable weight to the law of the place of the wrong.[27] If an English or Australian court would exercise jurisdiction over a local tort and apply its law in such a case, then it is logical that it can adjudicate a claim against a foreign state based on a tortious act occurring there.
By contrast, the US and Canadian provisions remove immunity in any proceeding for ‘personal injury or death’ occurring in the forum state.[28] The problem with a place of injury or harm test is that it is imprecise and may lead to conflicting and arbitrary results. For example, does injury or harm mean the suffering of the immediate injury following the tortious act or does it also include any place where lingering harm or consequential loss is felt? It is entirely possible that a dissident who experiences a violent attack in a foreign state may continue to suffer ongoing symptoms in another state after he or she has escaped there. If a broad view of injury or harm is taken, then the claimant would be entitled to sue, but not if the narrow, immediate injury view is adopted. Also, even if the term ‘injury’ is given the second, more expansive interpretation, it would produce unjust results between similarly situated claimants. Suppose two claimants were victims of the same violent attack or torture but only one had lingering symptoms after escaping to the forum state. The second claimant’s action could proceed in the forum but the first claimant could not. Such an outcome is discriminatory whereas an ‘act or omission’ approach is preferable in treating similarly aggrieved claimants alike.
US and Canadian courts have acknowledged this problem of differential treatment of claimants[29] and relied upon it to develop an interpretation of their territorial tort exception which dramatically expands the scope of immunity at the expense of claimants. An ‘entire tort’ approach has been adopted, which means that a claimant must show both an act of the foreign state in the territory of the forum and injury or death there.[30] While such an approach does treat claimants who suffer similar injuries abroad alike, it does so by denying them both recovery. Consequently, a claimant can never recover under the FSIA in respect of a tort with a cross-border aspect, which will be common in cases involving foreign states. The doctrine therefore ‘incentivises states to dodge suit by pleading collateral acts abroad’.[31] US courts have repeatedly defended this position on the basis that the legislative history states clearly that the tortious act or omission must also occur in US territory,[32] but surely if this outcome was intended, it would have been included in the text itself. Canadian courts have (regrettably) followed the US approach on this question.[33]
Another distinctive feature of the US territorial tort exception (but not the Canadian) is the ‘discretionary function’ defence, which grants immunity where the claim arises from an act involving performance of a discretionary function by the foreign state. This defence aims to protect ‘planning’ as opposed to ‘operational’ decisions of states and has two elements.[34] First, the action must involve ‘an element of judgment or choice’ and second, it must be based on considerations of social, economic or political policy.[35] Fortunately, this defence has rarely been applied in dissident cases but there is a recent (and disturbing) example of its employment examined below.[36]
The approach taken in the UNCSI and ECSI is also less generous for dissidents than the UK and Australian provisions, but for a different reason. Article 12 of the UNCSI also requires an act of the foreign state to have occurred in the forum but then widens the scope of immunity by requiring also that the author of the act be present in the forum at the time of performance of the act.[37] According to the International Law Commission’s commentary (‘ILC Commentary’), the ‘author present’ element was inserted to exclude
cases of transboundary issues or trans-frontier torts or damage such as export of explosives, fireworks or dangerous substances which could explode or cause damage through negligence ... [C]ases of shooting or firing across a boundary ... are [also] excluded ...[38]
This requirement also makes it difficult for a claimant to sue for intentional torts, except in those relatively rare cases where a dissident is physically attacked or killed by foreign state agents in the forum. Even in that case, however, if the author is deemed to be the official of the foreign state who planned the attack from outside the territory of the forum state (rather than the agents who committed the physical assault in the forum) the exception may not apply. This issue is further considered later, but the uncertainty of art 12 of the UNCSI provides a powerful reason for states such as the UK and Australia not to accede to the Convention. Moreover, since the UNCSI is not currently in force and has only been acceded to by 23 nation-states (none of which are common law jurisdictions), it is unlikely that the ‘author present’ requirement represents customary international law.
In the next section, examination of the above immunity rules will be made in four areas in which harassment of dissidents has commonly occurred: (a) assault or killing in the forum state; (b) assault or killing outside the forum state; (c) ‘extraordinary rendition’ from the forum state to abroad; and (d) computer and technological surveillance targeting the forum state. The issues of psychological harm and the status of the territorial tort exception in customary international law will also be considered.
Physical attacks on dissidents residing in the forum state have occasionally occurred where officials of the foreign state have travelled to the forum state for meetings and encountered protests. In response to such demonstrations, security guards of the foreign state have assaulted or kidnapped protesters and dissidents. If a claimant protestor commenced an action in the forum courts for assault against the foreign state, immunity would not apply under any of the models examined. First, in the case of the UK and Australia, assuming that the guards were employees of the foreign state or acting under its direction, the state could be sued in tort based on vicarious liability. The claimant faces no immunity obstacle since the acts of the foreign state all occurred in the forum. Such a conclusion was recently reached by the English High Court in Al-Masarir v Saudi Arabia (‘Al-Masarir’),[39] where an individual complained of being physically assaulted on the streets of London by agents of the foreign state.
Under Canadian and US law, the same result would be reached under the entire tort principle since both the act of the foreign state and the injury to the claimant occurred in the forum. There is no ‘extraterritorial’ element. Such a situation has arisen in several US decisions. In Gerritsen v De La Madrid Hurtado, the claimant was distributing leaflets critical of the Mexican government in front of its consulate in California and was assaulted, kidnapped and interrogated by consulate staff.[40] The Court found that the territorial tort exception applied to strip the foreign state defendant of immunity. Further, the Court rejected the Mexican government’s argument that its acts involved the exercise of a discretionary function.[41] Assault and kidnapping do not involve decisions relating to the planning or formulation of government policy but are purely operational in nature.[42] A more recent example arose when Turkish security forces clashed with protesters outside the Turkish ambassador’s residence in Washington DC and several injured protesters were permitted to sue for assault and battery. The discretionary function exception again did not apply because the defendant’s actions in maintaining security were not grounded in social, economic or political policy.[43]
The outcome under the UNCSI would likely be similar. While the Convention requires an act of the foreign state to have occurred in the forum and its author to be present there, both elements would likely be satisfied in the case of assaults by security guards or others in the forum state.[44]
The more extreme situation, which fortunately arises rarely, is where a foreign state commits an assassination or murder of a dissident in the forum state. A difference with the assault cases is that such grave attacks are usually planned and organised by foreign state officials outside the forum state before being carried out by agents locally. This element potentially complicates the immunity analysis.
A recent and glaring example of such an event is where the Russian government sent two agents to the UK to kill a dissident opponent, Alexander Litvinenko, by poisoning him.[45] The operation was planned in Russia and the operatives brought the poison into the UK. While no action was ever brought against Russia in the English courts by Litvinenko’s family, it is clear that no immunity would have existed in such a case as ‘an act’ causing death had occurred in the UK — the poisoning. The fact that other ‘acts’ of the foreign state which contributed to the killing also occurred in Russia (for example, the planning of the attack) does not alter this conclusion. Knowles J of the English High Court addressed this very situation in two recent decisions, Al-Masarir and Shehabi v Bahrain (‘Shehabi’).[46] The judge emphasised that s 5 of the SIA only requires ‘an act or omission’ of the foreign state to have occurred in the forum for immunity to be displaced.[47] Provided that there is an act in the UK ‘which is causative of the requisite damage on a more than de minimis basis’, the provision will be satisfied.[48] Knowles J noted that the legislation does not require that ‘the act’ of the foreign state take place locally, unlike the US FSIA. If the definite article ‘the’ had been used, the Court may have been required to identify the most substantial or significant act, which could lead to a foreign state successfully claiming immunity if planning (which likely took place outside the forum) was found to be the key element. Such an outcome would be highly unjust for claimants. Consequently, s 5 of the SIA (and by extension, s 13 of the FStIA) does not require all acts or omissions of the foreign state to occur in the forum, only that there be a single causative act.
Knowles J further supported this conclusion by reference to cases dealing with conspiracies planned in one country to harm residents in another. Such conspiracy cases have been held to involve a single ‘composite act’ of planning and execution with s 5 of the SIA satisfied by the occurrence of either such act on forum territory.[49] This reasoning would likely extend to the case of a letter bomb sent from the territory of another state or a timed car bomb which later explodes in the territory of the forum state causing injury or death there. While the planning and preparation of the bomb occurred outside the forum state, the detonation of the device took place locally.[50]
Hence, in any future Litvinenko-type situation, an English (and, most likely, an Australian) court would have jurisdiction to adjudicate claims arising from the acts of the foreign state perpetrator.
The issue of assassination of dissidents and political figures has also arisen in the US, but here the position is less certain. In Letelier v Chile (‘Letelier’), a former Foreign Minister of Chile fled to the US after General Augusto Pinochet seized power in a coup.[51] Letelier became a leading critic of the regime and was assassinated in a car bombing in New York.[52] Investigators concluded that the bombing had been carried out by Chilean Secret Service agents acting on the instructions of the Pinochet regime. Letelier’s family sued Chile in the US for assault and battery causing death and Chile pleaded immunity.
It was noted earlier that the prevailing approach in the US to the territorial tort exception is to require, for immunity to be displaced, that the ‘entire tort’ occur in the forum, that is, both act and injury.[53] Yet interestingly, the decision in Letelier seemed to defy this analysis by removing immunity in circumstances where at least part of the tort occurred outside the US. The Court itself acknowledged that
[a]lthough the acts allegedly undertaken by the Republic of Chile to obtain the death of ... Letelier may well have been carried out entirely within that country, that circumstance alone will not allow it to absolve itself if the actions of its alleged agents resulted in tortious injury in this country.[54]
Hence, the Court suggested that immunity will be removed where the injury alone occurred in the US. Nevertheless, in the more recent decision Kidane v Ethiopia (‘Kidane’),[55] the Court of Appeals for the District of Columbia suggested that Letelier was consistent with the entire tort principle, since it ‘involved actions occurring in the US that were — without reference to any action undertaken abroad — tortious’.[56] This explanation is hard to understand, since although there were acts (the planting and detonation of the bomb) and injury that occurred in the US, the key instruction to commit the acts emanated from the foreign state. The current authority of Letelier may therefore now be in question.[57]
A decision consistent with Letelier was Liu v Republic of China (‘Liu’).[58] Liu was shot and killed in California by a gunman acting on orders of the government of the Republic of China. The Court found, with limited reasoning, that the territorial tort exception was satisfied since the government had engaged in a conspiracy to kill Liu in the forum through its agents.[59] Such an approach is reminiscent of the ‘composite act’ analysis adopted in English law, but again appears to be a departure from the ‘entire tort’ doctrine.
In the Letelier and Liu cases, the foreign states also sought to reinstate immunity by reference to the discretionary function defence. In both decisions, however, the plea was given short shrift, with the Court in Letelier stating that ‘there is no discretion to commit or to have one’s officers or agents commit an illegal act’.[60] Whatever policy options may exist for a foreign country, it has no ‘discretion’ to perpetrate conduct designed to result in the assassination of an individual or individuals. Likewise, in Liu, the defence did not apply because the defendant had no discretion to violate the law of the Republic of China that prohibits murder.[61]
The position under the UNCSI should also be considered. While the ILC Commentary suggests that homicide, including political assassination, would be encompassed by art 12 of the Convention,[62] the problem again is that the article requires both an act of the foreign state in the forum and the author of that act to be present there. The ‘author presence’ issue was noted earlier and may pose a problem in the case of assassinations of dissidents which are planned abroad by the foreign state (which is often the case, as has been seen). As noted earlier, ‘transboundary injuries’ were intended to be excluded from art 12,[63] and so if the relevant ‘author’ of the assassination was found to be the official who organised and approved the act, as opposed to the person who carried it out, immunity will prevail.[64]
Finally, the position changes dramatically when a foreign state commits the torts of assault, torture or killing wholly within its own territory or in a country other than the forum state. Under all the above approaches, a foreign state continues to enjoy immunity in such circumstances as there is no relevant ‘act’ of the state in the forum (SIA, FStIA and UNCSI), let alone an ‘entire tort’ there (FSIA and SIA (Can)). This conclusion has been confirmed in several English,[65] US[66] and Canadian[67] decisions.
A variation on the above situations is the ‘extraordinary rendition’ cases where a dissident is abducted from the forum state by agents of a foreign state and then transferred to the foreign state (or another country) for interrogation and torture.[68] Applying the English/Australian approach above, it is likely that no immunity would apply here as ‘an act’ being causative of the claimant’s injuries (the abduction) has occurred in the forum.[69] The ‘composite act’ analysis may again be relevant.
The position in the US and Canada, however, is again unclear given the need for the ‘entire tort’ to have been committed locally. Perhaps if the claimant framed his or her claim as one for unlawful abduction alone, not including the acts of subsequent torture, then it may plausibly be argued that a completed tort has occurred in the forum. The problem, however, with this analysis is that § 1605(a)(5) of the FSIA and s 6(a) of the SIA (Can) both require ‘personal injury’ to have occurred in the forum state and no such harm may have been incurred by the abduction itself, only the subsequent torture.
A more positive result for claimants may be gained under the UNCSI. Article 12 requires an act of the foreign state in the forum, the presence of the author there at the time of the act and personal injury. Assuming that the abduction satisfies the first requirement, then the presence in the forum of foreign state agents effecting the claimant’s removal should suffice for the second element. Commentary supports this conclusion, noting that art 12 of the UNCSI would apply to the situation where the author ‘initiated’ an act in the forum state that was ‘consummated’ in the territory of another state.[70] While the ‘author present’ requirement may prevent the ‘import’ of a trans-boundary civil wrong, it would allow its ‘export’.[71]
The third major category of harassment of dissidents involves a foreign state using computers to target and monitor dissidents in other countries or to steal their data. This issue has arisen in several recent English and US decisions and is likely to increase in the future as technological advances obviate the need for foreign states to enter the territory of other countries to harm individuals. The use of computer malware allows foreign states to target activists from a distance and so presents greater opportunities for deniability.
In two important decisions, Al-Masarir and Shehabi, Knowles J of the English High Court held that a foreign state enjoyed no immunity where it used spyware to target and monitor dissidents in the UK.[72] Spyware has the effect of ‘convert[ing] a personal computer into a surveillance drone, capable of recording its physical environment’ by activating a webcam or microphone on the target computer.[73] In both cases the claimants alleged that their iPhones or computers had been infected by spyware sent by agents of the foreign state that enabled accessing of information stored on the devices.[74] The claimants in each case sued for damages for personal injury (in the form of psychiatric harm) resulting from misuse of private information and harassment.[75]
As noted earlier, Knowles J reached the important legal conclusion that s 5 of the SIA required only ‘an act’ of the foreign state to have occurred in the UK, not the entirety of the tort. The act must be ‘causative of the requisite damage on a more than de minimis basis’.[76] This principle was satisfied on the facts of both cases through the foreign states’ installing of spyware on the iPhones and computers of the claimants. The judge relied on decisions in the field of cross-border hacking and interference with computers to establish the following proposition.[77] Where a computer device is located in the UK and is manipulated and made to perform operations as a result of electronic instructions sent from a computer operator abroad, then an act has occurred within the UK under s 5 of the SIA.[78] While the spyware was sent from computers abroad in Al-Masarir and Shehabi, it was received on the claimants’ devices and had its natural and intended effects there in terms of acquisition and transmission of data.
US courts however have reached a different conclusion in applying the entire tort doctrine. The leading US decision on the matter is Kidane, which arose out of a similar spyware attack on a dissident living in the US, who sued for intentional intrusion upon seclusion.[79] The spyware had been used to intercept and record the claimant’s emails, web searches and Skype calls.[80] The US Court of Appeals for the District of Columbia found that it could not adjudicate the matter because the entire tort had not occurred in the US. The Court noted that
at least a portion of Ethiopia’s alleged tort occurred abroad ... [W]hether in London, Ethiopia or elsewhere, the tortious intent aimed at Kidane plainly lay abroad and the tortious programming likewise occurred abroad. Moreover Ethiopia’s placement of the spyware on Kidane’s computer, although completed in the United States when Kidane opened the infected e-mail attachment, began outside the United States. It thus cannot be said that the entire tort occurred in the United States.[81]
Hence, the presence of two key aspects of the tort — the intention of the foreign state and the transmission of the spyware — occurred outside the forum state which meant that immunity applied. The pernicious effect of the ‘entire tort’ doctrine in the context of remote cyber torts was noted by the District of Columbia District Court, who held that had Ethiopia sent ‘a flesh-and-blood agent’ to Kidane’s house to install the same device, immunity would not have applied.[82] In effect, the doctrine imposes immunity in every case involving a cross-border cyber tort.
The Kidane case has been widely criticised by US scholars who have suggested a variety of strategies to achieve a different outcome in future cases, such as by use of the Justice against Sponsors of Terrorism Act (‘JASTA’),[83] adoption of a ‘targeting of victims in the US’ test[84] or creation of a new cyber tort exception to immunity in the FSIA.[85] Respectfully, such proposals miss the clearest and most effective solution to the problem: adopting the wording in the UK and Australian legislation to remove immunity where a single causative act of the foreign state has occurred in the forum. As noted earlier, application of such a test will normally lead to the denial of immunity in cases of cross-border computer surveillance and targeting. Interestingly, in a non-immunity case, United States v Ivanov, a US court found that a violation of the Computer Fraud and Abuse Act occurred in the US where computers there were accessed by a process initiated and controlled from a foreign country (Russia).[86] Even though the tort was commenced abroad, the act of intrusion occurred in the US.[87] If the FSIA was amended to remove immunity simply upon performance of an act by the foreign state in the US, then this decision could be relied upon to deny states immunity in future cases involving cyber surveillance of dissidents.
Certainly, there seems to be no sign of any reconsideration of the entire tort doctrine in the three most recent American cyber tort cases. In Democratic National Committee v Russia, Russia was held to be entitled to immunity where it hacked into the computers of the Democratic National Committee in the US.[88] The territorial tort exception did not apply because the offending conduct was executed from computers located abroad.[89] Likewise, in Broidy Capital Management LLC v Qatar (‘Broidy Capital’), a dissident was precluded from suing a foreign state which had infiltrated his computer systems and stolen private documents because the location of the computer accessing the plaintiff’s network was in Qatar.[90] Most recently, in Rusesabagina v Rwanda, the Court more directly applied the reasoning in Kidane to reject a claim by a dissident for intrusion upon seclusion arising from computer surveillance by a foreign state.[91] An essential element of the tort — intent aimed at the claimant — was located abroad.
In the Broidy Capital case, the Ninth Circuit Court of Appeals affirmed the decision of the District Court granting immunity but on a different and arguably even more disturbing ground. Immunity was upheld because the foreign state could invoke the discretionary function defence.[92] It was noted earlier that this defence applied when the act of the state involves ‘an element of judgment or choice’ and is based on considerations of public policy.[93] The Court found that Qatar’s decision to infiltrate the claimant’s computers involved an exercise of discretion that could only be discounted if it was shown to violate Qatari law or public international law.[94] While Qatari law has criminal prohibitions against hacking, theft and disclosure of trade secrets, they do not apply when performed by government agents acting under official authority. Peacetime espionage was also not found to be a sufficiently clear breach of public international law. The Court distinguished the assassination cases of Letelier and Liu on the basis that both involved acts that were clearly unlawful under both law of the foreign state and public international law.[95]
The Court’s reasoning in Broidy Capital reveals the danger of the discretionary function defence. A narrow focus on whether the conduct breaches the law of the foreign state or public international law surely obscures the wider issue of the need to combat foreign state harassment of dissidents and assaults upon freedom of expression.
If that reasoning was not concerning enough, the Ninth Circuit Court of Appeals then concluded that the acts of hacking and intrusion were based on considerations of public policy and so satisfied the second limb of the test:
Qatar undertook the challenged actions as one component of a public relations strategy ‘to influence public opinion in the United States’ by ‘curtailing the influence of individuals’, such as [the claimant] who ‘could undermine the standing of the State of Qatar in the United States’.[96]
In other words, it is acceptable government policy to silence dissidents by hacking into their computers and phones to intimidate them and US law will not hold foreign states to account for such conduct. No dissident is now safe from electronic intrusions and targeting. This conclusion is astonishing and shows that the discretionary function defence must be removed immediately.
Article 12 of the UNCSI is also unlikely to avail a claimant in a computer hacking situation. While consistent with the UK and Australian legislation in only requiring that there be an act of the foreign state in the forum, the ‘author present’ requirement is likely to be fatal to any claim. In all the cases mentioned, the relevant interference or transmission of spyware emanated from a place outside the forum and so the relevant state actor would not be present.
Another contentious issue under the territorial tort exception is whether damages for mental pain and suffering can be recovered. There seems to be a split here between the English/Australian view, in which damages for psychological injury alone can be sought assuming an act of the foreign state in the forum,[97] and the Canadian position, which only recognises such harm when suffered pursuant to a physical injury.[98]
In practice, in the cases of assault, torture or killing, this distinction is unlikely to be significant because physical injury will have occurred as well and so damages for psychiatric harm will be recoverable. Also, where a dissident has incurred physical injury from an act committed outside the forum state but then suffers further psychological harm in the forum, no claim can be brought under either English or Canadian law. Hence, where a relative of a dissident suffered psychological harm upon receiving news of the dissident’s injuries and death, no recovery would be possible on either view.
Where the difference between the two views will be relevant is where the dissident receives threats of violence or harm in the forum, for example, by telephone or computer. Such an allegation was made in Al-Adsani v Kuwait (‘Al-Adsani’) but was dismissed by the English Court of Appeal because of a lack of evidence.[99] By contrast, in the recent cases of Al-Masari and Shehabi, the English High Court allowed the claimants to sue for psychiatric injury caused by a foreign state’s infection of their iPhones and computers with spyware designed to conduct surveillance on them.[100] Significantly, the psychiatric injury here was not parasitic upon or caused by a physical injury. Such recovery would not have been possible under Canadian law. Assuming, as noted earlier, that the technological harassment of dissidents is likely to increase in the future, the English approach is preferred as more protective of claimants’ rights.
The position under the UNCSI is uncertain. While art 12 refers to ‘death or injury to the person’, the ILC Commentary rather unhelpfully states that the article ‘does not cover cases where there is no physical damage’.[101] Commentators have however suggested that since the text contains no such limitation, the better view is that the domestic law applicable to the tort should determine the question of whether a claim for psychiatric illness constitutes an injury to the person.[102]
Before leaving the territorial tort exception, a comment should be made about its status in customary international law. While several nation-states, as noted earlier, have statutorily recognised the exception and the UNCSI includes such a provision, the general customary position is less clear. Indeed, considerable uncertainty has been caused by the 2012 decision of the International Court of Justice (‘ICJ’) in Jurisdictional Immunities of the State (‘Jurisdictional Immunities’).[103] That case involved a proceeding brought by Germany seeking a declaration that Italy had breached customary international law by failing to accord foreign state immunity to Germany in actions brought in Italian courts. The actions involved civil claims seeking reparation for injuries caused by violations of international humanitarian law committed by the Nazi regime during the Second World War. A majority of the ICJ upheld Germany’s application, but the precise scope of its decision is contested.[104]
The strict ratio of the case is that customary international law requires a state to be accorded immunity in proceedings for torts allegedly committed in the territory of another state by its armed forces while conducting an armed conflict.[105] Such a conclusion would leave untouched most cases involving harassment of dissidents considered in this commentary.[106] While such acts may be performed by military or security officials of the foreign state, they do not normally occur in the course of a war or other military conflict.[107] The ICJ was not, however, asked to determine the broader question of whether a territorial tort exception existed in customary international law, removing immunity in the context of sovereign acts of a foreign state. Nevertheless, it did approve a decision of the European Court of Human Rights (‘ECtHR’) which suggested that such an exception may not exist in customary law.[108]
In McElhinney v Ireland (‘McElhinney’), the ECtHR had to consider whether a decision by an Irish court to grant immunity to the UK was consistent with a claimant’s right of access to a court in art 6 of the European Convention on Human Rights (‘ECHR’).[109] In the Irish court proceeding, the plaintiff alleged in a suit against the UK that a British soldier on duty at a border checkpoint had assaulted him in Irish territory.[110] The Irish court upheld the plea of immunity by the UK, finding that the soldier, in executing his duties, was engaged in sovereign or governmental activities.[111] Under Irish law, the sovereign–private acts distinction applied and so immunity was granted. The ECtHR found the Irish court’s employment and application of this test to fall within ‘currently accepted standards’ of public international law.[112] The ICJ in the Jurisdictional Immunities case referred with approval to McElhinney, noting that the case concerned the conduct of armed forces although not in the context of armed conflict.[113] This last observation may suggest that the ICJ was endorsing a slightly broader principle than that applicable to the facts of Jurisdictional Immunities: immunity would apply to any act in the forum when performed by any member of the foreign state’s armed forces.[114] If this view is correct, then the territorial tort exception would remain available in customary international law in the case of all other sovereign acts of a foreign state such as harassment of dissidents by non-military agents of the state.[115]
It was noted earlier that under all the above approaches, a foreign state continues to enjoy immunity for its non-commercial torts occurring wholly outside the forum state. The classic example of this is the case of kidnapping and torture in the foreign state. In Al-Adsani, the claimant, a dual UK/Kuwait national, alleged that he had been tortured by Kuwait authorities in that country and had suffered physical and psychological injuries that continued on his return to the UK.[116] The English Court of Appeal confirmed that immunity applied as no relevant act of the foreign state had occurred in the UK.[117]
The claimant also argued in Al-Adsani that in the case of acts of torture occurring abroad, there should be an implied exception to immunity based on the universal condemnation of torture in public international law. Prohibition of torture was said to be a rule of jus cogens or a fundamental norm of international law that overrides ‘lesser’ principles such as foreign state immunity.[118] The Court of Appeal rejected the argument, finding that in the absence of an express statutory exception to immunity for torture or other human rights abuses, foreign states are immune.[119] It would be inappropriate for the courts to create such an exception where Parliament had refused to do so.
The applicant challenged the Court of Appeal decision in the ECtHR, alleging that the grant of immunity resulted in a denial of the right of access to a court under art 6 of the ECHR.[120] By a very slim majority, the ECtHR held that there is no acceptance in international law of the proposition that states are not entitled to immunity in respect of claims for damages for alleged torture committed outside the forum state.[121] The peremptory or jus cogens nature of the conduct was therefore not relevant to the question of immunity. The same conclusion was also reached by the House of Lords and the ECtHR on similar facts in Jones v Saudi Arabia[122] and Jones v United Kingdom respectively.[123] Courts in other common law jurisdictions (including Australia) have taken the same approach to the question of jus cogens and immunity.[124]
A variation of the above argument is that a foreign state impliedly ‘waives’ immunity in a torture action before another country’s court by becoming a state party to the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.[125] The contention is that the requirement under art 14 of the Convention on member states to provide a right to a civil remedy for torture would be undercut if a foreign state’s plea of immunity was upheld. This argument has also been rejected by national courts on two grounds.[126] First, accession by a state to the Convention does not amount to a submission to the jurisdiction of other member states’ courts to resolve torture claims.[127] Second, art 14(1) of the Convention does not apply to torture committed outside the forum state.[128]
The most definitive statement on the question of whether a human rights exception to immunity exists based on jus cogens is found in the judgment of the ICJ in Jurisdictional Immunities. The Court considered that the rules of foreign state immunity are procedural in character and confined to determining whether the courts of one state may exercise jurisdiction in respect of the acts of another. By contrast, an analysis of whether a particular act or tort is sufficiently grave as to amount to the breach of jus cogens goes to the substance or merits of the case and not the prior question of jurisdiction, and so operates on a different plane to immunity.[129] To support its conclusion, the ICJ relied on the national court and legislative practice referred to earlier which rejected a jus cogens exception[130] and the drafters’ deliberate decision not to include a jus cogens exception in the UNCSI.[131]
The ICJ’s reasoning based on the substance–procedure distinction is dubious. In the parallel field of private international law, foreign state immunity is likely considered substantive, not procedural, for choice of law purposes, since its application bars a claimant’s right of access to the forum court.[132] Both Australian and Canadian authorities have suggested that any matter that concerns the existence or enforcement of rights or duties of parties should be substantive, with the scope of procedure being limited to mechanical issues such as the method for conducting court proceedings.[133] Immunity plainly affects the parties’ rights and duties when its application leaves a claimant unable to proceed in his or her chosen tribunal.[134]
A third attempt to create an exception to immunity for serious human rights violations has involved asserting that a forum state has a right to exercise jurisdiction and deny immunity when a victim of human rights abuses has no alternative means of redress.[135] As noted earlier, the courts of an authoritarian foreign state are rarely an option for dissidents from that state and so the forum should exercise jurisdiction ‘by necessity’. This pathway was however again firmly blocked by the ICJ in the Jurisdictional Immunities case, with the Court rejecting Italy’s argument that immunity should be denied ‘because all other attempts to secure compensation for the various groups of victims involved in the Italian proceedings had failed’.[136] The ICJ said that it could ‘find no basis in ... customary international law ... that makes the entitlement of a State to immunity dependent upon the existence of effective alternative means of securing redress’.[137]
The jus cogens issue therefore looks reasonably settled for now, at least in common law jurisdictions.[138] Consequently, if nation-states wish to provide redress for dissidents who are victims of human rights abuses abroad, they must legislate an exception to immunity or take a more active role in interceding with the responsible state on behalf of the victim on the diplomatic plane.[139] Legislatures in the US and Canada have created human rights exceptions to immunity, but in a rather piecemeal and overly executive-controlled way.
Out of a concern that the territorial tort exception was not available to lift immunity in cases involving human rights violations outside the US, Congress in 1996 amended the FSIA. A new exception to immunity in § 1605A of the FSIA was added for suits relating to acts of torture, extrajudicial killing, aircraft sabotage, hostage taking or the provision of material support for such acts. While the exception allows suits to be brought for wholly extraterritorial torts, there are two important limitations on such actions. First, the exception only applies to nations certified by the US State Department as ‘state sponsor[s] of terrorism’.[140] As of 2023, only four nations were on the list: Cuba, Iran, North Korea and Syria.[141] Second, the cause of action can only be asserted by claimants who are US nationals, members of the US armed forces or employees of the US government at the time of the relevant acts giving rise to the suit. Both elements greatly reduce the capacity of dissidents to bring claims against foreign states. Also, in the context of computer-based harassment such as in Kidane, the state sponsor exception cannot apply as there is no act of terrorism as defined in § 1605A of the FSIA.
In 2012, Canada also introduced a state sponsor of terrorism exception to immunity, allowing Canadian nationals or permanent residents who are victims of terrorist activity to sue as well as other persons where the action has ‘a real and substantial connection’ to Canada.[142] Once again, this exception may apply to torts committed outside the forum state, but the foreign state defendant must have been listed by the Canadian government, following a recommendation by the Minister of Foreign Affairs. As of 2023, only Iran and Syria are on the list.[143] ‘Terrorist activity’ is also restrictively defined to include hijacking, crimes against diplomatic agents, hostage-taking, bombing or financing of terrorism.[144] Torture, assault and computer intrusion are not included.
In 2016, the US Congress further amended the FSIA by enacting the JASTA, which creates a further, new exception to immunity.[145] A US national claimant may now sue a foreign state for physical injury to a person or death occurring in the US, caused by (a) an act of international terrorism in the US and (b) a tortious act of the foreign state, regardless of whether the tortious act occurred.[146]
JASTA is wider than the state-sponsored terrorism exception in that a suit can be brought against any foreign state, not merely one prescribed by the executive. The territorial scope of JASTA is not, however, entirely clear. While the exception requires both physical injury or death and an act of international terrorism to have occurred in the US, the tortious act may have occurred anywhere. It appears that JASTA has not adopted the ‘entire tort’ requirement of the territorial tort exception, and this was affirmed in In Re Terrorist Attacks on September 11, 2001,[147] where Saudi Arabia was stripped of immunity where it was alleged to have given assistance to the hijackers to perpetrate acts of terrorism on US soil.
In the context of harassment of dissidents, however, JASTA may be less helpful. Suppose, for example, a US national claimant was arrested and tortured by government agents in State A and then returned to the US and sued the foreign state. While JASTA allows suits for extraterritorial torts, there must still be an act of international terrorism and physical injury occurring in the US, neither of which would be present on these facts. The cross-border letter bomb or car bomb referred to earlier may fall under the JASTA exception, depending upon whether the detonation of the bomb amounts to an act of terrorism in the US, rather than elsewhere. In the case of computer-based harassment, the same problem arises as with the state sponsor exception. ‘International terrorism’ is defined in the US Code to be ‘criminal activity that involves violent acts or acts dangerous to human life’.[148] Most cyber attacks, such as those involving the sending of spyware to a dissident’s electronic device or data breaches in the US would not be included. Conceivably, however, if the cyber attack was accompanied by threats of violence to the dissident, there may be ‘acts dangerous to human life’, but the ‘physical injury’ requirement would still be lacking.
Overall, the US/Canadian approach to immunity and human rights does not markedly improve the position for dissident victims. While the state sponsor of terrorism exception uniquely allows a claimant (or their estate) to sue for acts of torture, kidnapping or murder occurring in foreign countries, it does so in a highly selective and executive-controlled fashion. If a claimant does not have the ‘fortune’ of being harmed by a designated state sponsor of terrorism, then it cannot sue. JASTA largely leaves immunity untouched in the case of acts occurring outside the US, despite it professing to apply to foreign torts. In the area of cyberattacks the position is even worse. Not only is immunity preserved by the territorial tort principle, but the state sponsor and JASTA exceptions are largely ineffective. The present author considers that the English approach, which gives a broad interpretation to act occurring in the forum and so catches cross-border cyber-attacks and state sanctioned assaults and killings, is the preferable approach, with one qualification. The plight of those dissidents tortured and murdered overseas remains acute and demands the addition of a general statutory exception to immunity for serious human rights violations.
Authoritarian states have long sought to suppress freedom of expression by dissidents living in democratic societies. Acts of assault, kidnapping, torture and even assassination have been perpetrated by states, with computer surveillance and targeting being the most recent method employed. The legal position of dissidents and their families who seek redress for such conduct is complicated by the rules of foreign state immunity. While international consensus exists in favour of the view that a foreign state should have no immunity for private or commercial acts, this rarely helps dissident claimants since the conduct complained of is ‘sovereign’ in nature. Several states have enacted versions of the ‘territorial tort’ exception, which lifts immunity for tortious conduct of the foreign state in the forum. While this pathway has been restrictively interpreted in the US and Canada, whose courts require the ‘entire tort’ to have occurred locally, in the UK and Australia, it is enough if a single causative act has taken place there. Such an approach enables courts to adjudicate cases of cross-border harassment, such as computer-based espionage planned from abroad.
The problem, however, remains of human rights abuses that occur entirely outside the forum state. While the US and Canada have enacted statutory exceptions to immunity for such violations, they are narrow in scope and excessively controlled by the executive. For dissidents to receive better protection and opportunities for redress, a clear and unqualified exception to immunity for human rights abuses should be recognised.
* Professor, Melbourne Law School; Consultant and Counsel, Corrs Chambers Westgarth. Email: [1].
[1] See Office of the Director of National Intelligence (US), Assessing the Saudi Government’s Role in the Killing of Jamal Khashoggi (Report, 11 February 2021).
[2] For Australia, see Foreign States Immunities Act 1985 (Cth) (‘FStIA’). For the United Kingdom, see State Immunity Act 1978 (UK) (‘SIA’). For the US, see Foreign Sovereign Immunities Act, 28 USC §§ 1330, 1332, 1391(f), 1441(d), 1602–11 (2024) (‘FSIA’). For Canada, see State Immunity Act, RSC 1985, c S-18 (‘SIA (Can)’).
[3] See, eg, United Nations Convention on Jurisdictional Immunities of States and Their Property, opened for signature 2 December 2004 (not yet in force) (‘UNCSI’), with 23 state parties, namely Austria, Benin, Czechia, Equatorial Guinea, Finland, France, Iran, Iraq, Italy, Japan, Kazakhstan, Latvia, Lebanon, Liechtenstein, Mexico, Norway, Portugal, Romania, Slovakia, Spain, Sweden and Switzerland; European Convention on State Immunity, opened for signature 16 May 1972, 1495 UNTS 181 (entered into force 11 June 1976) (‘ECSI’), between Austria, Belgium, Germany, Luxembourg, Netherlands, Switzerland and the United Kingdom.
[4] See, eg, The Parlement Belge [1880] UKLawRpPro 10; (1880) 5 PD 197; Krajina v Tass Agency [1949] 2 All ER 274.
[5] Jurisdictional Immunities of the State (Germany v Italy) (Judgment) [2012] ICJ Rep 99, 161 [2] (Judge Keith) (‘Jurisdictional Immunities’); Holland v Lampen-Wolfe [2000] UKHL 40; [2000] 1 WLR 1573, 1588 (Lord Millett).
[6] Alfred Dunhill of London Inc v Cuba, [1976] USSC 83; 425 US 682 (1976); Trendtex Trading Corporation Ltd v Central Bank of Nigeria [1977] 2 WLR 356. It should be noted, however, that there was Italian and Belgian jurisprudence from the early 20th century that recognised a rule of restrictive immunity from jurisdiction: see Hazel Fox and Philippa Webb, The Law of State Immunity (Oxford University Press, 3rd ed, 2015) 154–5.
[7] Jurisdictional Immunities (n 5) 161–7 [2]–[14] (Judge Keith), quoting Schooner Exchange v McFaddon, [1812] USSC 15; 11 US 116, 136 (Marshall CJ) (1812).
[8] Sally El Sawah, ‘Jurisdictional Immunity of States and Non-Commercial Torts’ in Tom Ruys, Nicola Angelet and Luca Ferro (eds), Cambridge Handbook of Immunities and International Law (Cambridge University Press, 2019) 142, 143, citing Sompong Sucharitkul, ‘Fifth Report on Jurisdictional Immunities of States and Their Property’ [1983] II Yearbook of the International Law Commission 16 [71].
[9] Schreiber v A-G (Canada) [2002] 3 SCR 269 (‘Schreiber’); Al-Adsani v Kuwait (1996) 107 ILR 536 (‘Al-Adsani’); Letelier v Chile, 488 F Supp 665 (D DC, 1980) (‘Letelier’).
[10] See below Part II(G).
[11] See, eg, ECSI (n 3) art 11.
[12] See below Part III.
[13] UNCSI (n 3) art 12; ECSI (n 3) art 11.
[14] See, eg, Holubek v United States (1961) 40 ILR 73 (Supreme Court of Austria); Church of Scientology in the Netherlands Foundation v Herold (1980) 65 ILR 380 (District Court of Amsterdam); Schmidt v Home Secretary [1997] 2 IR 121 (Supreme Court of Ireland).
[15] Saudi Arabia v Nelson, [1993] USSC 33; 507 US 349, 360–2 (1993).
[16] Al-Masarir v Saudi Arabia [2023] 2 WLR 549, 593 [186] (‘Al-Masarir’).
[17] Broidy Capital Management LLC v Qatar, 982 F 3d 582, 594–5 (9th Cir, 2020) (‘Broidy Capital’).
[18] For England, see, eg, Al-Adsani (n 9) 549; Al-Masarir (n 16) 563 [60], 565 [66], 566 [71], 567–8 [77]. For the US, see, eg, Letelier (n 9) 671. For Canada, see, eg, Schreiber (n 9).
[19] International Law Commission, Report of the International Law Commission on the Work of Its Forty-Third Session, UN GAOR, 46th sess, Supp No 10, UN Doc A/46/10 (10 September 1991) 105 [8] (commentary to draft art 12) (‘ILC Commentary’).
[20] These provisions have been largely replicated in other jurisdictions: see, eg, Foreign States Immunities Act 1981 (South Africa) s 6; State Immunity Act (Singapore, cap 313, 2014 rev ed) s 7; Foreign State Immunity Law 2008 (Israel) s 5 (‘tort committed in Israel’); Immunity of Foreign States from the Jurisdiction of the Argentinian Courts 1995 (Argentina) s 2(e). The very recently enacted immunity legislation of China is in similar terms: see «中华人民共和国外国国家豁免法» [Foreign State Immunity Law of the People’s Republic of China] (People’s Republic of China) National People’s Congress, Order No 10, 1 September 2023, art 9.
[22] See above n 3 and accompanying text for the 23 nation-states that have adopted this provision in their immunity laws.
[23] The Russian law version of the territorial tort exception appears to adopt this model: see Federal Law on Jurisdictional Immunities of Foreign States and the Property of Foreign States in the Russian Federation 2015 (Russia) art 11.
[24] Australian Law Reform Commission, Foreign State Immunity (Report No 24, 1984) 67 [114].
[25] See generally Reid Mortensen, Richard Garnett and Mary Keyes, Private International Law in Australia (LexisNexis, 5th ed, 2023) 49–55.
[26] For Australia, see Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575. For England, see VTB Capital plc v Nutritek International Corp [2013] UKSC 5; [2013] 2 AC 337. For Singapore, see Rickshaw Investments Ltd v Nicolai Baron von Uexkull [2007] 1 SLR(R) 377, 393–4 [37]–[40] (‘Rickshaw Investments’).
[27] For Australia, see Regie Nationale des Usines Renault SA v Zhang [2002] HCA 10; (2002) 210 CLR 491. For Singapore, see Rickshaw Investments (n 26).
[28] FSIA (n 2) § 1605(a)(5); SIA (Can) (n 2) s 6(a).
[29] Persinger v Iran, [1984] USCADC 114; 729 F 2d 835, 842–3 (DC Cir, 1984) (‘Persinger’); Kazemi (Estate) v Iran [2014] 3 SCR 176, 218–20 [70]–[73] (‘Kazemi’).
[30] Persinger (n 29) 842; Jerez v Cuba, 775 F 3d 419, 424 (DC Cir, 2014) (‘Jerez’); Re Terrorist Attacks on September 11, 2001, 714 F 3d 109, 115 (2nd Cir, 2013) (‘September 11 Case’); O’Bryan v Holy See, 556 F 3d 361, 382 (6th Cir, 2009).
[31] ‘DC Circuit Finds Ethiopia Immune in Hacking Suit: Doe v Federal Democratic Republic of Ethiopia’ (2018) 131(4) Harvard Law Review 1179, 1185.
[32] ‘United States: Congressional Committee Report on the Jurisdiction of United States Courts in Suits against Foreign States’ (1976) 15(6) International Legal Materials 1398, 1409.
[33] Kazemi (n 29) 218–20 [71]–[73].
[34] Gerritsen v de la Madrid Hurtado[1987] USCA9 1095; , 819 F 2d 1511, 1518 (9th Cir, 1987) (‘Gerritsen’). See also Fox and Webb (n 6) 273.
[35] United States v Gaubert, [1991] USSC 49; 499 US 315, 322–3 (1991), cited in Broidy Capital (n 17) 591; Risk v Halvorsen, [1991] USCA9 460; 936 F 2d 393, 395 (9th Cir, 1991).
[36] See below n 92 and accompanying text.
[37] See also ECSI (n 3) art 11.
[38] ILC Commentary, UN Doc A/46/10 (n 19) 104 [7] (commentary to draft art 12).
[39] Al-Masarir (n 16) 593 [186].
[41] Ibid 1517.
[42] Ibid 1518. See also Alicog v Saudi Arabia, 860 F Supp 379, 383 (SD Tex, 1994).
[43] Usoyan v Turkey, 6 F 4th 31, 35–6, 47 (DC Cir, 2021) (‘Usoyan’). See also Miango v Democratic Republic of Congo, 288 F Supp 3d 117 (D DC, 2018) (‘Miango’), where protestors successfully sued the foreign state for assault by its security forces in the US.
[44] ILC Commentary, UN Doc A/46/10 (n 19) 103 [4] (commentary to draft art 12).
[45] Sir Robert Owen, The Litvinenko Inquiry: Report into the Death of Alexander Litvinenko (Report, January 2016) <https://assets.publishing.service.gov.uk/media/5a8055 c340f0b62302692e48/The-Litvinenko-Inquiry-H-C-695-web.pdf>, archived at <https://perma.cc/UH5J-KAWP>.
[46] Al-Masarir (n 16); Shehabi v Bahrain [2023] EWHC 89 (KB) (‘Shehabi’).
[47] Al-Masarir (n 16) 576 [120] (emphasis in original).
[48] Ibid.
[49] Ibid 577 [124]–[126], citing Heiser v Iran [2019] EWHC 2074 (QB).
[50] The reverse situation would equally apply: a claim in relation to a letter bomb sent from the forum state to a person in another country would not be barred by immunity as a relevant act had occurred in the forum state.
[52] Ibid 665–6.
[53] Persinger (n 29) 842; Jerez (n 30) 424.
[55] 851 F 3d 7 (DC Cir, 2017) (‘Kidane’).
[56] Ibid 11.
[57] One commentator suggested that Letelier predates the development of the ‘entire tort’ doctrine and therefore may be decided differently now unless a special exception were created (for policy reasons) for ‘assassination’ cases: Judi L Abbott, ‘The Non-Commercial Tort Exception to the Foreign Sovereign Immunities Act’ (1985) 9(1) Fordham International Law Journal 134, 148.
[58] [1989] USCA9 1305; 892 F 2d 1419 (9th Cir, 1989) (‘Liu’).
[59] Ibid 1434.
[62] ILC Commentary, UN Doc A/46/10 (n 19) 103 [4] (commentary to draft art 12).
[63] Ibid 105 [7] (commentary to draft art 12).
[64] While the ILC Commentary notes that the reference to the ‘author’ of the act is to the representative of the state who does the relevant conduct, as opposed to ‘the state itself as a legal person’, this does not clarify the issue: see ibid 106 [10] (commentary to draft art 12).
[65] Al-Adsani (n 9); Jones v Saudi Arabia [2006] 2 WLR 1424 (‘Jones v Saudi Arabia’).
[66] Siderman de Blake v Argentina, [1992] USCA9 1398; 965 F 2d 699 (9th Cir, 1992) (‘Siderman de Blake’); Jerez (n 30); Rusesabagina v Rwanda, 652 F Supp 3d 1 (D DC, 2023) (‘Rusesabagina’).
[67] Bouzari v Bahremani (2015) 126 OR (3d) 223 (‘Bouzari v Bahremani’); Jin v Xilai [2016] ONSC 917.
[68] Cf Habib v Commonwealth [2010] FCAFC 12; (2010) 183 FCR 62, 65–6 [2].
[69] ‘Logic and common sense’ would support such a result: Andrew Dickinson, ‘Germany v Italy and the Territorial Tort Exception: Walking the Tightrope’ (2013) 11(1) Journal of International Criminal Justice 147, 150.
[70] Joanne Foakes and Roger O’Keefe, ‘Article 12’ in Roger O’Keefe and Christian J Tams (eds), The United Nations Convention on Jurisdictional Immunities of States and Their Property: A Commentary (Oxford University Press, 2013) 209, 222.
[71] Ibid.
[72] Al-Masarir (n 16) 578 [127], 579 [130]–[132]; Shehabi (n 46) [136]–[138].
[73] Scott A Gilmore, ‘Suing the Surveillance States: The (Cyber) Tort Exception to the Foreign Sovereign Immunities Act’ (2015) 46(3) Columbia Human Rights Law Review 227, 258.
[74] Al-Masarir (n 16) 555 [15]; Shehabi (n 46) [8]–[10].
[75] Al-Masarir (n 16) 555 [20]; Shehabi (n 46) [23]–[24].
[76] Al-Masarir (n 16) 576 [120].
[77] See, eg, Ashton Investments Ltd v OJSC Russian Aluminium [2006] EWHC 2545; [2007] 1 All ER (Comm) 857.
[78] Al-Masarir (n 16) 579 [132].
[80] Ibid 8–9.
[81] Ibid 10.
[82] Doe v Ethiopia, 189 F Supp 3d 6, 20 (D DC, 2016).
[83] John J Martin, ‘Hacks Dangerous to Human Life: Using JASTA to Overcome Foreign Sovereign Immunity in State-Sponsored Cyberattack Cases’ (2021) 121(1) Columbia Law Review 119. The Justice against Sponsors of Terrorism Act is examined below in Part III(B).
[84] Samantha N Sergent, ‘Extinguishing the Firewall: Addressing the Jurisdictional Challenges to Bringing the Cyber Tort Suits against Foreign Sovereigns’ (2019) 72(1) Vanderbilt Law Review 391.
[85] The Homeland and Cyber Threat Act is a bill introduced in the US House of Representatives in 2021 that would create a new exception in the FSIA (§ 1605C) for computer intrusions by a foreign state: Homeland and Cyber Threat Act, HR 1607, 117th Congress (2021).
[86] 175 F Supp 2d 367, 374 (D Conn, 2001).
[87] Ibid 372–3.
[88] 392 F Supp 3d 410, 418–19 (SDNY, 2019).
[89] Ibid 428.
[92] Broidy Capital (n 17) 591–2.
[93] See above n 35 and accompanying text.
[94] Broidy Capital (n 17) 591.
[95] Ibid 592.
[96] Ibid 593.
[97] Nigeria v Ogbonna [2012] 1 WLR 139. For Australia, see (outside the immunity context) Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317.
[98] Schreiber (n 9) 298 [62]; Kazemi (n 29) 221 [76]–[78].
[100] Al-Masarir (n 16) 557 [31]; Shehabi (n 46) [180]–[181].
[101] ILC Commentary, UN Doc A/46/10 (n 19) 104 [5] (commentary to draft art 12).
[102] Foakes and O’Keefe (n 70) 218.
[103] Jurisdictional Immunities (n 5).
[104] Ibid 154–5 [139].
[105] Ibid 135 [78].
[106] Fox and Webb (n 6) 468–9; Lucas Bastin, ‘Case Note: International Law and the International Court of Justice’s Decision in Jurisdictional Immunities of the State’ [2012] MelbJlIntLaw 25; (2012) 13(2) Melbourne Journal of International Law 774, 787–8.
[107] See, eg, Letelier (n 9); Al-Adsani (n 9); Al-Masarir (n 16); Gerritsen (n 34); Usoyan (n 43); Miango (n 43); Liu (n 58).
[108] Jurisdictional Immunities (n 5) 135 [78], referring to McElhinney v Ireland [2001] ECHR 763; (2002) 34 EHRR 13, 334 [38] (‘McElhinney v Ireland’).
[109] McElhinney v Ireland (n 108).
[110] McElhinney v Williams [1995] 3 IR 382, 385–6.
[111] Ibid 400.
[112] McElhinney v Ireland (n 108) 334.
[113] Jurisdictional Immunities (n 5) 131–2 [72].
[114] Foakes and O’Keefe (n 70) 224; Xiaodong Yang, State Immunity in International Law (Cambridge University Press, 2012) 213.
[115] Fox and Webb (n 6) 468, 469. National court practice on the question remains conflicting and inconclusive. Consistently with the ICJ decision in Jurisdictional Immunities, some courts have held that a foreign state enjoys immunity for the acts of its armed forces in armed conflicts occurring within the forum state: Natoniewski v Germany (2017) 168 ILR 561, 576–82 (Supreme Court of Poland); Margellos v Germany (2007) 129 ILR 526, 526 (Special Supreme Court of Greece); AA v Germany (2017) 168 ILR 588, 593–7 (Constitutional Court of Slovenia), discussed in Jones v United Kingdom (2014) 59 EHRR 1, [148] (‘Jones v United Kingdom’). By contrast, other courts have followed the line of Italian jurisprudence based on Ferrini v Germany (2006) 128 ILR 658, to the effect that a foreign state is not immune for grave violations of human rights by armed forces within the forum state: Da Costa v Germany (Brazilian Federal Supreme Court, Minister Fachin, 23 August 2021), translated in Julian Arato (ed), ‘International Decisions’ (2023) 117(2) American Journal of International Law 309, 309; Case No 2016/505092 (Seoul Central District Court, 8 January 2021), discussed in Vessela Terzieva, ‘State Immunity and Victims’ Rights to Access to Court, Reparation, and the Truth’ (2022) 22 International Criminal Law Review 780, 784; Case No 308/9708/19 (Supreme Court of Ukraine, 14 April 2022), discussed in Ielyzaveta Badanova, ‘Jurisdictional Immunities v Grave Crimes: Reflections on New Developments from Ukraine’, EJIL:Talk! (Blog Post, 8 September 2022) <https://www.ejiltalk.org/jurisdictional-immunities-v-grave-crimes-reflections-on-new-developments-from-ukraine/>, archived at <https://perma.cc/8WBY-C8B5>. The more general question, however, of whether immunity applies to all sovereign acts in the forum state has not been directly addressed.
[117] Ibid 550.
[118] Ibid 541.
[119] Ibid 542.
[120] Al-Adsani v United Kingdom (2002) 34 EHRR 273.
[121] Ibid 292.
[122] Jones v Saudi Arabia (n 65).
[123] Jones v United Kingdom (n 115).
[124] Kazemi (n 29) 230 [101]; Bouzari v Bahremani (n 67); X v A-G (NZ) [2017] NZHC 768; [2017] 3 NZLR 115, 129–30; Zhang v Zemin [2010] NSWCA 255; (2010) 79 NSWLR 513, 534 [121], 536 [136]; Siderman de Blake (n 66); Ye v Zemin, [2004] USCA7 448; 383 F 3d 620, 627 (7th Cir, 2004), citing Sampson v Germany, [2001] USCA7 271; 250 F 3d 1145, 1156 (7th Cir, 2001). Several scholars, by contrast, support this argument: see, eg, Andrea Bianchi, ‘Denying State Immunity to Violators of Human Rights’ (1994) 46(3) Austrian Journal of Public and International Law 195, 222–5; Alexander Orakhelashvili, ‘State Immunity and Hierarchy of Norms: Why the House of Lords Got It Wrong’ (2008) 18(5) European Journal of International Law 955, 970; Lorna McGregor, ‘State Immunity and Jus Cogens’ (2006) 55(2) International and Comparative Law Quarterly 437, 444. But see Xiaodong Yang, ‘Jus Cogens and State Immunity’ [2006] NZYbkIntLaw 7; (2006) 3 New Zealand Yearbook of International Law 131.
[125] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) art 14.
[126] See, eg, Li v Zhou [2014] NSWCA 176; (2014) 87 NSWLR 20 (‘Li’); Princz v Germany, [1994] USCADC 292; 26 F 3d 1166 (DC Cir, 1994); Smith v Libya, [1997] USCA2 106; 101 F 3d 239, 242–5 (2nd Cir, 1996); Bouzari v Iran (2005) 71 OR (3d) 675, 692 [76] (‘Bouzari v Iran’). Cf Adam C Belsky, Mark Merva and Naomi Roht-Arriaza, ‘Implied Waiver under the FSIA: A Proposed Exception to Immunity for Violations of Peremptory Norms of International Law’ (1989) 77(2) California Law Review 365.
[127] Li (n 126) 33 [47], 39 [78].
[128] Bouzari v Iran (n 126) 692 [76].
[129] The UK House of Lords relied on a similar analysis: Jones v Saudi Arabia (n 65) 1438 [24] (Lord Bingham).
[130] Jurisdictional Immunities (n 5) 137–8 [84]–[88].
[131] Ibid 138 [89].
[132] See generally Richard Garnett, Substance and Procedure in Private International Law (Oxford University Press, 2012) 115 [4.69].
[133] John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503, 543–4 [99]; Tolofson v Jensen [1994] 3 SCR 1022, 1067.
[134] Garnett (n 132). Kimberley Trapp and Alex Mills further note that ‘procedural rules may go to the heart of substantive justice’: Kimberley N Trapp and Alex Mills, ‘Smooth Runs the Water Where the Brook is Deep: The Obscured Complexities of Germany v Italy’ (2012) 1(1) Cambridge Journal of International and Comparative Law 153, 160.
[135] Adeline Chong, ‘State Immunity and Breaches of Fundamental Human Rights’ in Paulus Jurčys, Poul F Kjaer and Ren Yatsunami (eds), Regulatory Hybridization in the Transnational Sphere (Martinus Nijhoff Publishers, 2013) 223, 240; Mizushima Tomonori, ‘Denying Foreign State Immunity on the Grounds of the Unavailability of Alternative Means’ (2008) 71(5) Modern Law Review 734, 743–4. Cf Christopher A Whytock, ‘Foreign State Immunity and the Right to Court Access’ (2013) 93(6) Boston University Law Review 2033, 2082. Compelling foreign relations reasons may still justify immunity even where no forum for redress exists.
[136] Jurisdictional Immunities (n 5) 142 [98].
[137] Ibid 143 [101]. By contrast, Judge Yusuf (dissenting) was more receptive to the argument: at 293 [9]–[10], 303 [42].
[138] ‘The notion that a rule of jus cogens can override an immunity in international law has now been widely discredited’: Lord Lloyd Jones, ‘Forty Years On: State Immunity and the State Immunity Act 1978’ (2019) 68(2) International and Comparative Law Quarterly 247, 264.
[139] Roger O’Keefe, ‘State Immunity and Human Rights: Heads and Walls, Hearts and Minds’ (2011) 44(4) Vanderbilt Journal of Transnational Law 999, 1040–1.
[141] ‘State Sponsors of Terrorism’, US Department of State (Web Page) <https://www.state.gov/state-sponsors-of-terrorism/>, archived at <https://perma.cc/8DMQ-HFRF>.
[143] Order Establishing a List of Foreign State Supporters of Terrorism, SOR/2012-170, sch.
[144] SIA (Can) (n 2) s 2, referring to Criminal Code, RSC 1985, c C-46, s 83.01(1).
[145] Justice against Sponsors of Terrorism Act, Pub L No 114-222, 130 Stat 852.
[147] September 11 Case (n 30).
[148] 18 USC § 2331(1)(B).
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