Sovereign Immunity & Crimes of States
The responsibility of governments in acting against offences committed by private individuals may sometimes involve condonation or ineptitude in taking effective action against terrorist acts, in particular with regard to the financing of terrorist acts.
by Dr. Ruwantissa Abeyratne
( October 3, 2016, Montreal, Sri Lanka Guardian) A few days ago, The United Nations Working Group of Experts on People of African Descent released its report which stated that the history of slavery in the United States justifies reparations for African Americans.
The Report goes on to say: “The history of people of African descent in the United States is well documented. The first enslaved Africans were brought to the American colonies in the early part of the seventeenth century. Slavery became an entrenched institution, with Africans making up one fifth of the population of the American colonies by 1775. The issuance in 1863 of the Emancipation Proclamation, which declared that all enslaved persons within the rebellious states were free, was followed by the Thirteenth Amendment to the Constitution of the United States of America, which outlawed the practice of enslavement, the Fourteenth Amendment to the Constitution, in 1868, granting full United States citizenship to all persons born or naturalized in the United States, including African Americans, and the Fifteenth Amendment to the Constitution, in 1870, prohibiting denial of the right to vote on the basis of race”.
In a contemporaneous development, The United States Congress overruled President Obama’s veto of a law – Justice Against Sponsors of Terrorism Act (JASTA) – which overrides the principle of sovereign immunity to allow families of the victims of the September 11 terrorist attacks to sue Saudi Arabia. The rationale for the is that since 15 of the 19 criminals who were involved in the 9/11 attacks were from Saudi Arabia, the country could be held accountable. In a town hall appearance conducted by CNN last week, President Obama explained that the reason for his veto was partly because such a precedent would allow other nations to sue the United States by implication or otherwise (example of drone strikes in Waziristan and other areas of Pakistan and Afghanistan carried out by the United States).
The law would allow the courts in the United States to waive the privilege at law of sovereign immunity and, at least technically, enable persons aggrieved to bring private lawsuits against Saudi Arabia in the United States. The implications of this law has another dimension, as John Brennan, Director of the CIA, warned: “The most damaging consequence would be for those US government officials who dutifully work overseas on behalf of our country. The principle of sovereign immunity protects US officials every day, and is rooted in reciprocity. If we fail to uphold this standard for other countries, we place our own nation’s officials in danger.”
It is also reported that an Iraqi group has requested the Iraqi parliament to prepare a lawsuit seeking compensation from the United States for the invasion of Iraq in 2003.
One of the theories that my support the law in question is the Condonation Theory, where States become responsible for private acts of violence not through complicity as such but more so because their refusal or failure to bring offenders to justice, which was tantamount to ratification of the acts in question or their condonation. The theory was based on the fact that it is not illogical or arbitrary to suggest that a State must be held liable for its failure to take appropriate steps to punish persons who cause injury or harm to others for the reason that such States can be considered guilty of condoning the criminal acts and therefore become responsible for them. Another reason attributed by scholars in support of the theory is that during that time, arbitral tribunals were ordering States to award pecuniary damages to claimants harmed by private offenders, on the basis that the States were being considered responsible for the offences.
The responsibility of governments in acting against offences committed by private individuals may sometimes involve condonation or ineptitude in taking effective action against terrorist acts, in particular with regard to the financing of terrorist acts. The United Nations General Assembly, on 9 December 1999, adopted the International Convention for the Suppression of the Financing of Terrorism, aimed at enhancing international co-operation among States in devising and adopting effective measures for the prevention of the financing of terrorism, as well as for its suppression through the prosecution and punishment of its perpetrators.
The Convention, in its Article 2 recognizes that any person who by any means directly or indirectly, unlawfully or willfully, provides or collects funds with the intention that they should be used or in the knowledge that they are to be used, in full or in part, in order to carry out any act which constitutes an offence under certain named treaties, commits an offence. One of the treaties cited by the Convention is the International Convention for the Suppression of Terrorist Bombings, adopted by the General Assembly of the United Nations on 15 December 1997.
The Convention for the Suppression of the Financing of Terrorism also provides that, over and above the acts mentioned, providing or collecting funds toward any other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in the situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act, would be deemed an offence under the Convention.
The United Nations has given effect to this principle in 1970 when it proclaimed that: “Every State has the duty to refrain from organizing or encouraging the organization of irregular forces or armed bands, including mercenaries, for incursion into the territory of another State. Every State has the duty to refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts, when the acts referred to in the present paragraph involve a threat or use of force”.
Here, the words encouraging and acquiescing in organized activities within its territory directed towards the commission of such acts have a direct bearing on the concept of condonation and would call for a discussion about how States could overtly or covertly encourage the commission of such acts. Steven Metz identifies three categories of such support: Category I support entails protection, logistics, training, intelligence, or equipment provided terrorists as a part of national policy or strategy; Category II support is not backing terrorism as an element of national policy but is the toleration of it; Category IIIsupport provides some terrorists a hospitable environment, growing from the presence of legal protections on privacy and freedom of movement, limits on internal surveillance and security organizations, well-developed infrastructure, and émigré communities
Tal Becker discusses what he calls the separate delict theory’ in State responsibility, whereby the only direct responsibility of the State is when it is responsible for its own wrongful conduct in the context of private acts, and not for the private acts themselves. He also contends that indirect State responsibility is occasioned by the State’s own wrongdoing in reference to the private terrorist conduct. The State is not held responsible for the act of terrorism itself, but rather for its failure to prevent and/or punish such acts, or for its active support for or acquiescence in terrorism. Arguably the most provocative and plausible feature in this approach is the introduction by the commentator of the desirability of determining State liability on the theory of causation. He emphasizes that: “The principal benefit of the causality based approach is that it avoids the automatic rejection of direct State responsibility merely because of the absence of an agency relationship. As a result, it potentially exposes the wrongdoing State to a greater range and intensity of remedies, as well as a higher degree of international attention and opprobrium for its contribution to the private terrorist activity”.
The principle of sovereign immunity is embodied in an old legal doctrine by which the sovereign or State cannot commit a legal wrong and is therefore insulated from civil suit or criminal prosecution, and its legal legitimacy is enshrined in the legal dictum rex non potest peccare, meaning “the king can do no wrong”. There is no reported evidence that anyone in the Saudi Arabian hierarchy was responsible in any way for the 9/11 attacks. The fact that it was the United States and not any private individual who invaded Iraq and Afghanistan and carried out drone strikes need not be proved. Although it would not be easy for any claimant to invoke the Justice Against Sponsors of Terrorism Act against Saudi Arabia, in view of the many layers of process, procedure and conditions prescribed by the law, the fact that the United States Congress has passed this law makes one wonder where its legislators are headed.
The author is former Senior Legal Officer at the International Civil Aviation Organization. He currently heads is own aviation consultancy company in Montreal and teaches aviation law and policy at McGill University. He is the author of 32 books and over 400 journal articles on international law which have been published in law journals worldwide.
