Terrorism Exception in the United States
State sponsored terrorism exception
Background and Purpose
According to research from the Federal Judicial Center:
Although victims’ groups had long advocated for a “terrorist” exception to foreign sovereign immunity, no such provision was included in the FSIA when it was originally enacted in 1976. Only after several significant terrorist incidents in the 1980s and 1990s (for example, the kidnapping of Joseph Ciccipio in Beirut and the destruction of Pan Am Flight 103 over Lockerbie, Scotland) did Congress amend the statute to permit suits against state sponsors of terrorism. State sponsors of terrorism consider terrorism a legitimate instrument of achieving their foreign policy goals. They have become better at hiding their material support for their surrogates, which includes the provision of safe havens, funding, training, supplying weaponry, medical assistance, false travel documentation, and the like … [A]llowing suits in the federal courts against countries responsible for terrorist acts where Americans and/or their loved ones suffer injury or death at the hands of the terrorist states is warranted. Section 804 will give American citizens an important economic and financial weapon against these outlaw states. As originally enacted, § 1605(a)(7) removed the immunity of foreign states with respect to cases seeking money damages for personal injury or death caused by certain enumerated acts taken by those states or their officials. The exception was limited to those few states that had been formally designated by the Secretary of State as sponsors of terrorism under § 6(j) of the Export Administration Act of 1979240 or § 620A of the Foreign Assistance Act of 1961241 at the time the acts in question had occurred or as a result of such acts. In 1996, this list included Cuba, Iran, Libya, North Korea, Sudan, Syria, and Iraq.
In addition, the original exception only permitted suits arising from acts of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources, and only if such acts or provision of material support had been engaged in by an official, employee, or agent of the foreign state while acting within the scope of his or her office, employment, or agency. The impact of § 1605(a)(7) as initially enacted was further circumscribed when courts interpreted it as “merely a jurisdictionconferring provision” that did not create an independent private right of action. In Flatow v. Islamic Republic of Iran, for example, the district court ruled that the statutory exception to sovereign foreign immunity did not itself create a federal cause of action.243 Instead, the statute operated merely as a “pass-through,” allowing plaintiffs to bring suit in federal court for claims based in state law. Given the difficulties encountered by plaintiffs in seeking to recover for injuries occurring abroad under state tort statutes or general common law, this interpretation sharply limited the reach of the exception. Differences in state law also produced disparate results for victims of the same terrorist act, depending on their domicile at the time of the attack. In response, Congress passed the so-called Flatow Amendment. This amendment sought to clarify the liability under the terrorism exception of any official, employee, or agent of a designated state sponsor of terrorism for personal injury or death caused to a U.S. national by acts of that official, employee, or agent while acting within the scope of his or her office, employment, or agency. It also provided that money damages in FSIA suits could include economic damages, solatium, pain and suffering, and punitive damages.
However, the Flatow Amendment failed to resolve the most significant obstacles facing plaintiffs under the statute. While some courts held that it provided a cause of action against a foreign state itself, others found that it provided a cause of action only against the individual officials, employees, or agents of a foreign state. In Cicippio-Puleo v. Islamic Republic of Iran, for example, the D.C. Circuit held that neither § 1605(a)(7) nor the Flatow Amendment, nor the two taken in tandem, created a private right of action against foreign state sponsors of terrorism. In Acree v. Republic of Iraq, the same court held that plaintiffs could not state a cause of action under the “generic common law” or merely allude “to the traditional torts … in their generic form” but must identify a “particular cause of action arising out of a specific source of law.” In consequence, § 1605(a)(7) was repealed and replaced in 2008 by a further revision, now codified at 28 U.S.C. § 1605A. Although in many respects the new provision’s operative language is virtually identical to that of its predecessor, the new provision clearly established a private right of action, recodified the provisions for the award of punitive damages, authorized compensation for special masters to assist the courts in resolving cases, and incorporated new mechanisms for the enforcement of judgments.
Limitations
According to research about Terrorism Exception from the Federal Judicial Center:As the quoted provision indicates, the exception applies only to actions for money damages arising from specifically enumerated categories of acts which were engaged in by foreign officials, employees, or agents “acting within the scope of [their] office, employment, or agency.” In addition, the exception applies only if 1. the foreign state had been formally designated as a state sponsor of terrorism at the time of (or as a result of) the act in question; 2. the claimant or victim was a U.S. national, a member of the armed forces, or an employee or contractor of the United States government acting within the scope of employment; and 3. for acts occurring in the foreign state concerned, the state was given a “reasonable opportunity to arbitrate the claim in accordance with the accepted international rules of arbitration.”
Resources
See Also
Popular Topics related with Terrorism Exception
- Foreign Immunity
- U.S. Foreign Sovereign Immunities Act
- Foreign Sovereign Immunity in International Law
- Immunities Definition
- Immunity Clause
- Immunity of Heads of State
- Jurisdictional Immunities
State-Sponsored Terrorism in the Foreign Sovereign Immunities Act of 1976
The new rule
According to research about Terrorism Exception from the Federal Judicial Center:See Foreign Immunities Exceptions and Attachment in Terrorism Cases.
Resources
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- Foreign Sovereign Immunities Act Commercial Activity Exception
- Foreign Sovereign Immunities Doctrine
- Foreign Sovereign Immunity Meaning
- Immunities Government
- Immunity from Prosecution
- Immunity Ratione Material
Designated state sponsors
According to research about Terrorism Exception from the Federal Judicial Center:See Foreign Immunities Exceptions and Attachment in Terrorism Cases.
Resources
See Also
Popular Topics related with Terrorism Exception
- Foreign Sovereign Immunities Act Definition
- Foreign Sovereign Immunities Legislative History
- Immunities and Privileges
- Immunities in International Criminal Law
- Immunity from Seizure
- Immunity Regulations