Lifting Jurisdictional Immunity of Foreign States Sponsoring Terrorism in the U.S.

Kelley Drye Client Advisory

On 28 September 2016, the U.S. Congress adopted the Justice Against Sponsors of Terrorism Act’ (JASTA). Even prior to its adoption, the bill was controversial as it lifts the immunity from jurisdiction of foreign States involved in acts of international terrorism in the United States. President Obama vetoed the bill for reasons pertaining to U.S. foreign relations, but for the first time in his presidency his veto was overridden by the Congress.

The overwhelming vote in favor of JASTA was the culmination of efforts by the families of the victims of the 9/11 attacks to get a legal basis enabling them to sue foreign States suspected of having played a role behind the attacks. Shortly after the Act was enacted, a lawsuit was indeed filed before a U.S. court against Saudi Arabia, that some suspect of having provided support to al Qaeda members who perpetrated the 9/11 attacks.

A Broader Exception to State Immunity from Jurisdiction

JASTA is not the first exception to the immunity from jurisdiction of foreign States in U.S. legislation. Inter alia, since 1996 the U.S. Foreign Sovereign Immunities Act (FSIA) includes an exception to State immunity for acts of terrorism, but only for foreign States specifically designated as a State sponsor of terrorism’ by the State Department at the time or as a result of the terrorism act (currently 3 foreign States are on the list).

JASTA considerably extends the scope of this terrorism exception. It provides that, irrespective of any designation by the State Department, a foreign State shall not enjoy immunity from the jurisdiction of U.S. courts in respect of civil claims in which U.S. nationals are seeking money damages for physical injury to person or property or death occurring in the United States and caused by (1) an act of international terrorism in the United States; and (2) a tortious act or acts of the foreign state, or of any official, employee, or agent of that foreign state while acting within the scope of his or her office, employment, or agency, regardless where the tortious act or acts of the foreign state occurred.

Under the new statutory provisions, however, the immunity is maintained where the foreign State’s omission or tortious act constitutes mere negligence’. Moreover, the Attorney General is allowed to intervene and request the court to stay proceedings: the court may’ grant a stay for an initial period of maximum 180 days if the Secretary of State certifies that the United States is engaged in good faith discussions with the foreign State defendant concerning the resolution of the claims.

Compatibility with International Law and Potential Consequences

Some foreign governments have already denounced JASTA as potentially breaching or eroding existing rules of public international law (see here, here and here). While State immunity from jurisdiction is a well-established principle of customary international law, the determination of its scope is not always straightforward. In particular, the exception for terrorism acts remains a highly controversial concept. In its 2012 judgment in Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), the International Court of Justice (ICJ) did not (have to) rule on the 1996 FSIA amendment, but still noted that this provision had no counterpart in the legislation of other States’ (Canada has since then adopted a similar exception in its national legislation). Article 12 of the 2004 United Nations Convention on Jurisdictional Immunities of States and Their Property (to which the United States is not a party, and which has anyway not entered into force yet) refers, for its part, to the specific situation in which the act or omission allegedly attributable to the foreign State occurred itself on the territory of the forum State – whereas the JASTA provisions only require that the damage and the act of terrorism occurred in the United States.

It remains to be seen whether the actual application of JASTA by U.S. courts will ever lead to international judicial reactions of foreign States, such as the proceedings that have recently been instituted by Iran against the United States before the ICJ in connection with the 1996 FSIA amendment and ensuing enforcement measures taken against Iranian assets in the United States. In this respect, it should be noted that JASTA – unlike the provisions concerning States sponsors of terrorism as designated by the State Department – does not impinge on State immunity from execution; as a result, unless U.S. legislation is further modified, the actual enforcement of any JASTA judgment against a foreign State might prove difficult.