By Haggai Carmon

The Justice for Victims of Terrorism Act was introduced in Canada’s House of Commons on June 2, 2009. Its purpose is to permit victims of terrorism to sue in Canadian courts those countries that the Canadian government determines to be state sponsors of terrorism. The Canadian Cabinet has yet to list and announce the countries it considers sponsors of terrorism, but several groups are already calling to broaden the Conservative government’s legislation, known as Bill C-35.

Specifically, lawyers are urging that Bill C-35 be expanded to allow torture victims (not just victims of terrorism) to sue and also to remove immunity from ALL states that do not have a mutual extradition relationship with Canada.

International law lawyers and human rights advocacy groups have been lobbying for an exception amendment to Canada’s federal State Immunity Act (SIA) since 9/11, which took 24 Canadian lives. Bill C-35, if passed, would extend back to Jan 1, 1985, expressly to include the biggest terrorist hit against Canada – the bombing of Air India Flight 182 on June 23, 1985, which killed 329 people, mostly Canadian.

The government’s bill would create a civil cause of action for terrorism-related acts, as well as a new exception to foreign state immunity in Canada for countries that support groups which are designated by the federal Cabinet as terrorist entities. Lawyers believe Bill C-35 has a good chance of passing in the current minority Parliament, as in recent years, all parties have been in support of its basic principles.

It is believed however, that Liberal Members of Parliament will push for the private member Bill C-408, which seeks to significantly expand the government bill on the table by allowing plaintiffs to sue in Canadian courts all the countries with which Canada does not have extradition ties (since plaintiffs can presumably sue such countries in those countries’ home courts).

Some believe that the government’s decision to follow in the steps of the U.S. with a designated sponsor-of-terrorism list leaves too much up to the political process. In their minds, this should be left to the courts as part of the judicial process, as what really matters is the injustice committed, not which state was behind it. There are also those that believe victims of torture – evidently an injustice – should be given a means to redress the wrong committed.

In response to arguments that this would open up the floodgates to hundreds of cases from around the world, proponents have said that courts can dismiss cases in which the claims are spurious, and lawyers themselves can also choose not to take on such claims.

The Canadian Centre for International Justice and Amnesty International Canada have both asked the government to give victims of torture, genocide, war crimes and crimes against humanity the right to sue foreign governments in Canada, saying “Bill C-35 states explicitly that there must be [a real and substantial] connection to Canada. If another country is in a better position to hear a case, perhaps due to the location of witnesses and evidence, and if the country protects due process rights, a Canadian court can dismiss the lawsuit. As a result, Canadian courts will normally take only those cases in which Canada is both the best forum and the last resort.”

Two additional limitations of Bill C-35 that have been noted by Liberals are:

1. Countries can apply to be removed from the Cabinet’s sponsor-of-terrorism list, which would raise problems for plaintiffs if their defendant state regains its immunity mid-way through a pricey trial.

2. The bill doesn’t soften the usual strict tort causation requirements — requirements which may be impossible to meet in a terrorism case, where financing of specific terrorist acts is not exactly documented for the world to see.

By Haggai Carmon

Can Americans sue present-day Iraq for injustices committed against them by the Saddam Hussein government? The U.S. Supreme Court ruled unanimously on June 8, 2009 that they cannot.

The question arose because the U.S. considered Iraq to be a state sponsor of terrorism under Hussein, and the 1996 exception to the U.S. Foreign Sovereign Immunity Act says that state sponsors of terrorism forfeit their immunity to U.S. civil lawsuits.

The U.S. Supreme Court sided with the current Iraqi government’s argument that Iraq regained its immunity when Hussein was ousted from power in 2003. Justice Antonin Scalia, writing the court’s opinion, said “Iraq’s sovereign immunity was restored when the president exercised his authority to make inapplicable with respect to Iraq any provision of law that applies to countries that have supported terrorism.”

Plaintiffs had sued Iraq for illegal detention and torture.

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.