COURT’S RULING ON THE LIABILITY OF SUDAN AND IRAN IN EMBASSY ATTACKS OF 1998 PREDICATED ON SOVEREIGN IMMUNITY EXCEPTION

Judge John Bates, of the United States District Court, District of Columbia, rendered his decision on November 28th regarding Owens v. Sudan, civil proceedings brought by the victims of the 1998 suicide bombings of the American embassies in Nairobi, Kenya and Dar es Salaam, Tanzania, along with their families, against Sudan and Iran, and ruled in favor of the plaintiffs, who possibly could be awarded damages reaching billions of dollars. In point of fact, the judge’s findings pertained to six distinct actions that had been consolidated for reasons of a hearing conducted this past October and for the assessment of damages. The attacks claimed hundreds of lives and those injured numbered more than one thousand, with most of the victims being foreign national employees of the embassies. The complaint specifically named the Republic of Sudan, the Ministry of the Interior of Sudan, the Islamic Republic of Iran, the Iranian Revolutionary Guards Corps, and the Iranian Ministry of Information and Security, as defendants. Sudanese participation in the case ended over two years ago, while there has been no response whatsoever on the part of Iran. Thomas Fay, lead attorney for a number of the plaintiffs, stressed that Sudan’s liability would not be assigned to the newly formed Republic of South Sudan, recognized as an autonomous state only since July of this year.

The district court opinion made abundantly clear that the sole means by which an American court could establish personal and subject matter jurisdiction over a foreign nation, and thereby overcome the shield of sovereign immunity, would entail satisfying certain criteria put forth in the Foreign Sovereign Immunities Act (FSIA). The judge pointed out that personal jurisdiction stemmed from proper service of process, a requirement fulfilled in the present actions, adding that the failure of the defendants to respond or appear within 60 days of service prompted a default judgment to be entered. Bates maintained that subject matter jurisdiction was conferred because of the FSIA state sponsor exception that allowed money damages for personal injury or death resulting from torture, extrajudicial killings, airplane sabotage, hostage situations, or the supply of materials or resources for said acts. He asserted that all the subject matter jurisdiction requisites were met, beginning with the condition that defendants be listed by the State Department as “state sponsors of terrorism” when the aforementioned acts took place. Iran’s classification as such dates back to 1984 and Sudan has occupied a place on the list since 1993. Next, the court declared that Sudan and Iran backed the “extrajudicial killings” perpetrated by al Qaeda and Osama Bin Laden during the bombings of the embassies. The definition given for extrajudicial killing was a considered killing not authorized by the judiciary. The decision went on to describe how Sudan and Iran provided support to al Qaeda and Bin Laden. Sudan served as a “safehouse” for them, from whence organization, logistics, and training were implemented, while Iran itself furnished training, as well as arranging for Hezbollah to give instruction on explosives, especially where large structures were concerned. Finally, the victims of the attacks were either American nationals or employed by the U.S. government.

However, the judge found that the amendment to the FSIA embodied in the National Defense Authorization Act for Fiscal Year 2008, so that foreign nationals could bring suit against state sponsors of terrorism for injuries or death incurred while at work, did not extend to family of the foreign nationals, including those members who are plaintiffs in the current actions. Although Bates stated a federal cause of action relative to liability was absent, he also indicated that state and/or foreign law might serve as avenues for proceedings. The court directed the appointment of a special master entrusted with determining the handling of each case and the attendant damages.

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