A Natural Progression of Restrictive Immunity: Why the Jasta Amendment Does Not Violate International Law

By Kohan, Eric T. | Washington Law Review, September 1, 2017 | Go to article overview

A Natural Progression of Restrictive Immunity: Why the Jasta Amendment Does Not Violate International Law


Kohan, Eric T., Washington Law Review


INTRODUCTION

On September 11, 2001, nineteen members of the al-Qaeda terror group hijacked four commercial airplanes. They flew them into the World Trade Center's Twin Towers in New York City and the Pentagon in Washington, D.C.1 The attack affected millions of lives, directly and indirectly.2 Following the attack, those more directly affected asked a familiar question: who is to blame? In response, many people attempted to blame Saudi Arabia-the country of origin for fifteen of the nineteen plane hijackers-and tried to hold the country accountable in America's courts.3

The victims soon learned they would not see their day in court. The plaintiffs alleged Saudi Arabia purposely funded charities that it knew would transfer the funds to Muslim extremists, including the terror group al-Qaeda, and therefore it knowingly funded intentional acts of terrorism.4 However, the Second Circuit Court of Appeals dismissed the consolidated suit on the pleadings, holding that Saudi Arabia was entitled to foreign sovereign immunity.5 The Supreme Court denied certiorari.6

Unsettled by the Second Circuit's ruling, Congress worked to amend the Foreign Sovereign Immunities Act (FSIA)7 to ensure 9/11 victims could at least take their claims past pleadings. With the Justice Against Sponsors of Terrorism Act (JASTA),8 Congress sought to allow plaintiffs to sue foreign states in United States courts for sponsoring intentional acts of terrorism, such as the terrorist attacks on 9/11.9 In 2009,10 2011,11 2013,12 and 2015,13 members of Congress introduced different versions of JASTA, but none of the bills passed Congress.

In 2016, the bill finally found the congressional support it needed to become law. It passed the House in May 2016 and the Senate in September 2016.14 President Obama, however, vetoed the law, citing concerns with taking foreign policy out of the hands of the executive branch and putting it in the hands of the people and the judiciary.15 Soon after, and for the first time in President Obama's presidency, Congress overrode the President's veto.16 On September 28, 2016, JASTA became law.17 The JASTA amendment has retroactive effect, allowing victims of the 9/11 terrorist attacks to sue foreign states using the JASTA amendment.18

Leading up to and following its passage in Congress, JASTA received large amounts of criticism for both practical and legal reasons.19 Focusing on the legal reasons, many scholars and state leaders believe that this amendment runs afoul of customary international law principles of state immunity.20 JASTA specifically revokes state immunity for states alleged to have committed international acts of terrorism-an unprecedented prospect in international law.21 The lack of support for this type of exception to state immunity shows that it may lack the state practice and opinio juris22 required to give it the status of customary international law.23 Many scholars have argued that acts such as terrorism, if attributable to a state, are not deserving of state immunity because such acts violate jus cogens norms: those norms from which no derogation by a state is permitted.24 Domestic, foreign, and international courts have consistently rejected this argument.25

The International Court of Justice (ICJ) recently reviewed the intersection of state immunity and jus cogens violations in Jurisdictional Immunities of the State.26 The case concerned Italian courts denying state immunity to Germany for suits against it relating to certain inhumane actions it took during World War II.27 The Italian courts reasoned that Germany did not deserve sovereign immunity protection because of the abysmal character of its actions in enslaving Italian citizens after the nation fell to the Allied powers towards the end of World War II.28 In holding the Italian courts violated international law on sovereign immunity, the ICJ held that there is no reason to conflate sovereign immunity and potential jus cogens violations because sovereign immunity was procedural, whereas jus cogens was substantive, meaning the two concepts should never collide. …

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