By Haggai Carmon

Today, June 2, 2009, Canadian Public Safety Minister Peter Van Loan introduced a bill that seeks to amend Canada’s State Immunity Act.

If the new legislation becomes law, countries that are deemed to be state sponsors of terrorism by the Canadian government will no longer be immune to civil lawsuits brought against them in Canadian courts by victims of terrorist acts.

Although Mr. Van Loan was not willing to name the countries that would be designated sponsors of terrorism – he said the list would have to wait until after the law was passed – he did give the public an idea of how judgments in favor of victims of terrorism would be executed. “The ministers of Finance and Foreign Affairs will have the discretion to identify the property and assets of those states within Canadian jurisdiction so that those assets may be used to seek compensation in the event of terrorist acts.”

“What this bill will allow people to do is sue, not just states that are designated as state sponsors, but also individuals who have been involved in supporting or undertaking terrorist acts and also organizations that have been involved in undertaking or supporting terrorists acts.”

The legislation covers terrorist acts going back to 1985, meaning that Canadians affected by the June 1985 bombing of an Air India flight which killed 329 people – mostly Canadian – could seek redress, as well as those Canadians affected by the 9/11 attacks in New York, which killed 24 Canadians.

The Canadian Coalition Against Terror is a group that represents the families of Canadians who have lost their lives in terrorist attacks. They have lobbied that such legislation be introduced for a long time.

The United States is the only other country that has a similar exception, passed in 1996, to its own Foreign Sovereign Immunity Act (FSIA). Between 1996 and 2008, $19 billion dollars in damages have been awarded by U.S. courts to Americans suing state sponsors of terrorism, only 2% of which has been collected.

By Haggai Carmon

After 9/11, some of the insurance companies and families of the victims sued members of the Saudi royal family for financially supporting Al Qaeda. They have accused the Saudis of funding Osama bin Laden and other terrorist leaders directly or by donating money to so-called charitable organizations they knew to be financing Al Qaeda.

The Justice Department filed a “friend of the court” brief before the Supreme Court, suggesting the court dismiss the case and uphold the district court ruling that sided with the Saudis, citing the U.S. Foreign Sovereign Immunity Act (FSIA). According to the lower court, the Saudi royal family cannot be sued in an American court for their official acts.

Even though the 1996 exception to FSIA states that countries that sponsor terrorism lose their rights to immunity from American civil suits, Saudi Arabia was not on the State Department’s terror list. Although the plaintiffs could name Saudi Arabian royal family members in a civil lawsuit seeking damages which resulted from their sponsorship of terrorism, the U.S. government has not singled Saudi Arabia as a terror-sponsoring nation, and therefore, they do not fall within the exception to FSIA which removes immunity.

In the Justice Department’s brief, Solicitor General Elena Kagan agreed with the ruling of the U.S. Court of Appeals for the Second Circuit regarding the defendants’ immunity. She said that historically, the judiciary has looked to the executive in such matters, as subjecting a foreign state to civil suit can seriously affect international relations.