The U.S Foreign Sovereign Immunities Act grants procedural immunity to foreign governments against civil lawsuits. There are however exemptions. Among them are lawsuits resulting from state-sanctioned assassinations. The following are two recent examples where sovereign immunity claims were denied.

The family of Orlando Letelier, former Chilean ambassador to the United States, was allowed to sue the Chilean government after it was established in a separate criminal trial that the ambassador had been killed in a Washington bombing involving four senior officials of the Chilean intelligence services and two Cuban exiles. A federal judge in Washington found that Chile did not qualify for immunity because the assassination plot had been carried out by its intelligence agents targeting critics of Chilean dictator Augusto Pinochet.

In its decision, the court said a foreign government “has no discretion to perpetrate . . . action that is clearly contrary to the precepts of humanity as recognized in both national and international law.”

In another case, a lawsuit filed by the widow of Henry Liu, a Chinese journalist and critic of the Taiwan government survived a dismissal motion. A federal court ruled that her husband had been slain in California by two Chinese gang members acting for Wong Hsi-ling, the former director of Taiwan’s Defense Intelligence Bureau. An appeal to the U.S. Court of Appeals for the Ninth Circuit failed.

The common denominator to these recent rulings is simple: Plaintiffs must show that their injury was resulted from the criminal conduct or another behavior that cannot be regarded as a normal government operation.

Clearly, U.S foreign sovereign immunity law does not protect territorial torts committed by foreign countries, unless there is a showing that the foreign sovereign applied “discretionary function” in its act or omission. However, injury or death caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act, if the foreign state is designated as a state sponsor of terrorism by the State Department. That explains why Libya failed in its attempt to block lawsuits resulting from the bombing of Pan Am Flight 103 over Lockerbie, Scotland, on December 21, 1988, killing 270 people. At the beginning, however, a federal court in New York dismissed the lawsuit, citing the Foreign Sovereign Immunities Act. Nonetheless, the families of Pan Am victims lobbied Congress, which passed, and amendment to the law, creating another exception to sovereign immunity: aircraft sabotage and other criminal acts. Thereafter, the families filed their lawsuit again and won. Libya negotiated a $2.7 billion settlement.

Rwanda summons German envoy over Kagame aide arrest

November 10, 2008

KIGALI (AFP) — Rwanda has summoned Germany’s ambassador to Kigali to protest against the arrest of a top aide to President Paul Kagame on suspicion of participating in an assassination that sparked the 1994 genocide, an official said on Monday. Kagame’s chief of protocol Rose Kabuye was arrested on Sunday at Frankfurt airport on an international warrant issued in 2006 by French anti-terrorism judge Jean-Louis Bruguiere. “Our foreign affairs minister yesterday summoned the German ambassador to protest. Kabuye was on an official mission and enjoys diplomatic immunity,” Information Minister Louise Mushikiwabo said. “She is an innocent woman who was arrested on a politically motivated warrant, a warrant issued on the basis of manipulated investigations,” Mushikiwabo told AFP. “This blackmail cannot continue anymore.”

Kabuye is the first Rwandan to be arrested out of nine warrants issued by Bruguiere against close Kagame aides whom the judge suspects of being behind the death of former Rwandan president Juvenal Habyarimana. Habyarimana was killed when his plane was shot down in April 1994 in an assassination which triggered ethnic tensions between Hutus and Tutsis and which led to the genocide. The arrest warrants sparked a bilateral diplomatic row resulting in Rwanda suspending ties with France.