SCC No. 35034 IN THE SUPREME COURT OF CANADA
(ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC) BETWEEN:
ESTATE OF THE LATE ZAHRA (ZIBA) KAZEMI APPELLANT
(Appellant 1500-09-021457-114) - and-
STEPHAN (SALMAN) HASHEMI APPELLANT
(Respondent 1500-09-021440-110) - and-
THE ISLAMIC REPUBLIC OF IRAN AYATOLLAH SA YYID ALI KHAMENEI
SAEED MORTAZAVI MOHAMMAD BAKHSHI
RESPONDENTS (Respondents 1500-09-021457-114)
(Appellants 1 500-09-021440-110)
- and-
ATTORNEY GENERAL OF CANADA
(Style of cause continues inside cover page)
FACTUM OF THE INTERVENER
RESPONDENT (Mise en cause)
CANADIAN CENTRE FOR INTERNATIONAL JUSTICE (Pursuant to Rule 42 of the Rules of the Supreme Court of Canada)
- and-
CHRISTOPHER D. BREDT AMICUS CURIAE
- and-
CANADIAN LA WYERS FOR INTERNATIONAL HUMAN RIGHTS AMNISTIE INTERNATIONALE, SECTION CANADA FRANCOPHONE
REDRESS TRUST LTD. CANADIAN ASSOCIATION OF REFUGEE LAWYERS
BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION CANADIAN BAR ASSOCIATION
CANADIAN CIVIL LIBERTIES ASSOCIATION CANADIAN CENTRE FOR INTERNATIONAL JUSTICE
DAVID ASPER CENTRE FOR CONSTITUTIONAL RIGHTS, INTERNATIONAL HUMAN RIGHTS PROGRAM, UNIVERSITY OF TORONTO FACULTY OF LAW
IRAN HUMAN RIGHTS DOCUMENTATION CENTER
Mr. Bernard Letarte Mr. Rene LeBlanc Department of Justice Canada SAT-6060 & 6050 284 Wellington Street Ottawa, Ontario KIA OH8
Tel.: 613 946-2776 (Mf. Letarte) Tel.: 613 957-4657 (Mf. LeBlanc) Fax: 613 952-6066 [email protected] rene.leblanc(ii),justice.gc.ca
Counsel for Attorney General of Canada
INTERVENERS
Mr. Christopher M. Rupar Department of Justice Canada Suite 50 50 O'Connor Street Ottawa, Ontario KIA OH8
Tel.: 613 670-6290 Fax: 613 954-1920 christopher.rupar(@,justice.gc.ca
Agent for Attorney General of Canada
Mr. Kurt A. Johnson Mr. Mathieu Bouchard Ms. Audrey Boctor Mr. David Grossman Irving Mitchell Kalichman LLP Suite 1400 3500 de Maisonneuve Blvd. West Montreal, Quebec H3Z 3CI Tel.: 514935-4460 Fax: 514935-2999 [email protected] [email protected] [email protected] [email protected]
Counsel for Estate of the Late Zahra (Ziba) Kazemi and Stephan (Salman) Hashemi
Mr. James A. Woods, Ad.E. Woods LLP Suite 1700 2000 McGill College Avenue Montreal, Quebec H3A 3H3 Tel.: 514 982-4503 Fax: 514284-2046 [email protected]
Counsel for Islamic Republic of Iran, Ayatollah Sayyid Ali Khamenei, Saeed Mortazavi and Mohammad Bakhshi
Mr. Brian A. Crane, Q.C. Gowling Lafleur Henderson LLP Suite 2600 160 Elgin Street Ottawa, Ontario KIP I C3
Tel.: 613 786-0107 Fax: 613 563-9869 [email protected]
Agent for Estate of the Late Zahra (Ziba) Kazemi and Stephan (Salman) Hashemi
Mr. John A. Terry Ms. Sarah R. Shody Torys LLP Maritime Life Tower, 30th Floor 79 Wellington Street West Toronto, Ontario M5K IN2
Tel.: 416 865-8245 (Mr. Terry) Tel.: 416 865-7360 (Ms. Shody) Fax: 416 865-7380 [email protected] [email protected]
Counsel for Canadian Centre for International Justice
Mr. Azim Hussain Mr. Rahool P. Agarwal Ms. Maureen Edwards Norton Rose Fulbright Canada LLP Royal Bank Plaza South Tower, Suite 3800 200 Bay Street Toronto, Ontario M5J 2Z4
Tel.: 514 847-4827 (Mr. Hussain) Tel.: 416 216-3943 (Mr. Agarwal) Tel.: 416 216-4834 (Ms. Edwards) Fax: 416 216-3930 [email protected] [email protected] [email protected]
Counsel for Redress Trust Ltd.
Mr. Jeffrey W. Beedell McMillan LLP Suite 300 50 O'Connor Street Ottawa, Ontario KIP 6L2
Tel.: 613 232-7171 ext. 122 Fax: 613 231-3191 [email protected]
Agent for Canadian Centre for International Justice
Ms. Sally Gomery Norton Rose Fulbright Canada LLP Suite 1500 45 O'Connor Street Ottawa, Ontario KIP lA4
Tel.: 613 780-8604 Fax: 613 230-5459 [email protected]
Agent for Redress Trust Ltd.
Mr. Christopher A. Wayland Mr. Simon Chamberland McCarthy Tetrault LLP TD Bank Tower, Suite 5300 66 Wellington Street West Toronto, Ontario M5K lE6
Tel.: 416 601 8109 (Mr. Wayland) Tel.: 514397-4430 (Mr. Chamberland) Fax: 416 868-0673 [email protected] schamberland@ mccarthy.ca
Counsel for Canadian Civil Liberties Association
Mr. Christopher D. Bredt Borden Ladner Gervais LLP Scotia Plaza, 44th Floor 40 King Street West Toronto, Ontario M5H3Y4
Tel.: 416 367-6165 Fax: 416361-7063 [email protected]
Amicus Curiae
Mr. Fran~ois Larocque CazaSaikaley LLP Suite 350 220 Laurier A venue West Ottawa, Ontario KIP 5Z9
Tel.: 613 894-4783 Fax: 613 565-2087 francoisJarocque(a),uottawa.ca
Counsel for Amnistie international, Section Canada francophone
Mr. Colin S. Baxter Cavanagh Williams Conway Baxter LLP Suite 401 1111 Prince of Wales Drive Ottawa, Ontario K2C 3T2
Tel.: 613 780-2012 Fax: 613 569-8668 [email protected]
Agent for Canadian Civil Liberties Association
Ms. Nadia Effendi Borden Ladner Gervais LLP World Exchange Plaza, Suite 1100 100 Queen Street Ottawa, Ontario KIP 119
Tel.: 613 787-3562 Fax: 613 230-8842 neffendi(@,blg.com
Agent for Christopher D. Bredt
Ms. Alyssa Tomkins CazaSaikaley LLP Suite 350 220 Laurier A venue West Ottawa, Ontario KIP 5Z9
Tel.: 613 564-8269 Fax: 613 565-2087 atomkins(w,plaideurs.ca
Agent for Amnistie international, Section Canada francophone
Ms. Jill Copeland Sack Goldblatt Mitchell LLP Suite 1100 20 Dundas Street West Toronto, Ontario M5G 2G8
Tel.: 416 979-6970 Fax: 416 591-7333 jcopeland((llsgmlaw.com
Counsel for Canadian Lawyers for International Human Rights
Mr. Daniel Sheppard Sack Goldblatt Mitchell LLP Suite 1100 20 Dundas Street West Toronto, Ontario M5G2G8
Tel.: 416 979-6442 Fax: 416 979-4430 [email protected]
Counsel for Canadian Association of Refugee Lawyers
Mr. Ward K. Branch Ms. Susan M. Precious Branch, MacMaster LLP Suite 1410 777 Horny Street Vancouver, British Columbia V6Z IS4
Tel.: 604654-2966 (Mr. Branch) Tel.: 604654-2959 (Ms. Precious) Fax: 604684-3429 [email protected] sprecious((l),branmac .com
Counsel for British Columbia Civil Liberties Association
Ms. Colleen Bauman Sack Goldblatt Mitchell LLP Suite 500 30 Metcalfe Street Ottawa, Ontario KIP 5L4
Tel.: 613 482-2463 Fax: 613 235-3041 cbauman((l)sgmlaw.com
Agent for Canadian Lawyers for International Human Rights
Ms. Colleen Bauman Sack Goldblatt Mitchell LLP Suite 500 30 Metcalfe Street Ottawa, Ontario KIP 5L4
Tel.: 613 482-2463 Fax: 613 235-3041 cbauman((v.sgmlaw.com
Agent for Canadian Association of Refugee Lawyers
Mr. Michael J. Sobkin 18 Yorkville Street Ottawa, Ontario K2C 4B6
Tel.: 613 282-1712 Fax: 613 235-3041 msobkin(a)sympatico.ca
Agent for British Columbia Civil Liberties Association
Mr. David Matas Suite 602 225 Vaughan Street Winnipeg, Manitoba R3C 1 T7
Tel.: 204 944-1831 Fax: 204 942-1494 [email protected]
Counsel for Canadian Bar Association
Mr. John Norris Ms. Carmen Cheung Simcoe Chambers Suite 100 116 Simcoe Street Toronto, Ontario M5H 4E2
Tel.: 416 596-2960 Fax: 416 596-2598 [email protected]
Counsel for David Asper Centre for Constitutional Rights, International Human Rights Program, University of Toronto
Mr. James Yap Suite 2600 130 Adelaide Street West Toronto, Ontario M5H 3P5
Tel.: 416 992-5266 Fax: 416 865-9010 james. vap(a),gmail. com
Counsel for Iran Human Rights Documentation Center
Mr. Henry S. Brown Q.c. Gowling Lafleur Henderson LLP Suite 2600 160 Elgin Street PO Box 466, Station D Ottawa, Ontario KIP 1 C3
Tel.: 613 786-0139 Fax: 613 563-9869 henry.brown(a),gowlings.com
Agent for Canadian Bar Association
Ms. Martha A. Healey Norton Rose Fulbright Canada LLP Suite 1500 45 O'Connor Street Ottawa, Ontario KIP IA4
Tel.: 613 780-8638 Fax: 613230-5459 [email protected]
Agent for David Asper Centre for Constitutional Rights, International Human Rights Program, University of Toronto
Ms. Mylene Beaulieu Beaudry, Bertrand LLP Suite 107 160 de I 'H6pital Blvd. Gatineau, Quebec J8T 811
Tel.: 819 770-4480 ext. 310 Fax: 819595-4979 mbeaul ieu(iV,beaudry-bertrand.com
Agent for Iran Human Rights Documentation Center
i
TABLE OF CONTENTS
PART I - OVERVIEW OF ARGUMENTS ................................................................................ 1
PART II - STATEMENT OF POSITION ON ISSUES .............................................................. 2
PART III - STATEMENT OF ARGUMENT .............................................................................. 2
Law in Canada .................................................................................................................. 2
Recent U.S. Developments ............................................................................................... 3
Recent UK Developments ............................................ , .................................................... 5
Recent International Jurisprudence ................................................................................... 9
Proposed Canadian Approach ........................................................................................... 10
PART IV - COSTS ....................................................................................................................... 10
PART V - ORDER SOUGHT ...................................................................................................... 10
PART VI TABLE OF AUTHORITIES ..................................................................................... 11
Canadian Judgments ......................................................................................................... 11
Foreign Judgments ............................................................................................................ 11
United States ......................................................................................................... 11
United Kingdom ................................................................................................... 11
European ............................................................................................................... 12
Doctrine ................................................................................................................. 12
United Nations Documents ................................................................................... 13
1
PART I - OVERVIEW
1. When foreign public officials commit torture or other violations of jus cogens norms, I
those officials should not be permitted to shield themselves from liability for their actions by
claiming protection through state immunity. Such individuals should not be immune from civil
suit in Canada.
2. The State Immunity Act ("SIA,,)2 is silent with respect to when and whether foreign public
officials, other than heads of state, can claim the protection of state immunity. There is no
Canadian common law that provides for an automatic immunity from civil liability for foreign
public officials.
3. Courts and scholars are increasingly recognizing that suing a foreign public official is not
always the equivalent of suing a state, and that, in some circumstances, foreign public officials
may be sued. Individuals, other than heads of state, are immune from suit only where they are
performing the authorized functions of the state so that their conduct can be said to be
attributable to that state.
4. Where the allegations against a foreign public official are that he or she committed
torture or another violation of ajus cogens norm, there can be no immunity. Functions of a state
cannot include jus cogens violations.
5. In determining whether immunity attaches to the conduct of a foreign public official,
Canadian courts should carry out a fact-based analysis to determine whether the conduct of that
official was sanctioned by law. Where the conduct contravenes ajus cogens norm - such as the
prohibition of torture - the suit is not considered to be against a foreign state, but rather against
those individual officials, personally, for conduct that no law authorizes. 3
1 Jus cogens nonns, or peremptory nonns, are norms of international law from which no derogation is pennitted. As the International Law Commission states in a recent report, "The most frequently cited examples of jus cogens nonns are the prohibition of aggression, slavery and the slave trade, genocide, racial discrimination, apartheid and torture, as weil as basic rules of international humanitarian law applicable in armed contlict, and the right to self-determination." International Law Commission, Fragmentation of International Law: Difficulties arising from the Diversification and Expansion oflnternational Law, AICNAIL.702, IS July 2006, CCIJ Authorities, Tab 1, at § 33.
2 State Immunity Act, RSC 19S5, c. SolS.
3 CCIJ does not concede that states, under international law, do or should receive immunity for jus cogens violations. Rather, this factum focuses on the issue of whether immunity is extended to individual officials.
2
PART II - STATEMENT OF POSITION ON ISSUES
6. The Canadian Centre for International Justice (CCIJ), a Canadian organization working
with survivors of genocide, torture and other atrocities to seek redress and bring perpetrators to
justice, was an intervener before both of the courts below. CCIJ's position is summarized in the
Overview.
PART III - STATEMENT OF ARGUMENT
The Law in Canada
7. The SIA provides immunity to "foreign states", which are defined as "including (a) any
sovereign or other head of the foreign state or of any political subdivision [defined as 'a
province, state or other like political subdivision state that is a federal state'] of the foreign state
while acting as such in a public capacity, (b) any government of the foreign state or of any
political subdivision of the foreign state, including any of its departments, and any agency of the
foreign state, and (c) any political subdivision ofthe foreign state".4
8. There is nothing in the SIA that identifies individual officials - other than a head of state
or of a province, state or like political subdivision - as attracting immunity.5
9. This leaves common law. As the Ontario Court of Appeal held in Jaffe v. Miller,
The fact that the State Immunity Act is silent on its application to employees of the foreign state ca.Tl only mean that Parliament is content to have the deternlination of which empioyees are entitled to immunity determined at common law. It will be a matter of fact for the court to decide in each case whether any given person performing a particular function is a functionary of the foreign state.6 [emphasis added]
10. In Jaffe, the plaintiff sought to sue Florida state officials for their role in allegedly
abducting and making false criminal charges against him, allegedly to coerce him into settling a
civil suit.7 The Court of Appeal held that the "illegal and malicious nature of the acts alleged"
4 SIA, supra note 2 at s. 2.
5 The assertion made by the amicus curiae that Article 14 of the SIA shows that the statute applies to ali government employees is incorrect. Article 14 clearly leaves to the Minister of Foreign Affairs the power to determine which individuals qualify as heads of state or political subdivisions (i.e. provinces or states) and does not proclaim all government employees immune, SIA supra note 2 at s. 14.
6 Jaffe v. Miller [1993] l3 OR (3d) 745 (CA), [Jaffe], CCIl Authorities, Tab 2 at para 34.
7 Jaffe, ibid., CCIl Authorities, Tab 2 at para 2.
3
did not "move the actions outside the scope of the official duties of the responding defendants. ,,8
[emphasis added]
11. The Court of Appeal's application of common law state immunity principles in Jaffe is
consistent with the well-established distinction under customary intemationallaw between
immunity rationae personae (status-based immunity) - which applies to certain state officials,
such as heads of state and diplomats, on the basis of their status - and immunity rationae
materiae (conduct-based immunity) - which applies to officials depending on the nature of the
conduct they have been engaged in.9 Asking whether acts of an official fall outside the scope of
his or her official duties is another way of asking whether the official's actions are protected by
immunity rationae materiae.
12. While Jaffe stands as the leading case on the application ofthe SIA to the actions of
foreign state officials, the case under appeal is the first one in which Canadian courts have had to
deal with the application of immunity to actions of foreign public officials that allegedly
constitute torture, and therefore violate the jus cogens prohibition against torture.
13. CCIl's position is that - unlike the acts at issue in Jaffe - acts such as torture that violate
jus cogens norms cannot be regarded as officially authorized by the state that employs that
official and therefore entitled to immunity. In other words, employing the language used in
Jaffe, these acts cannot be regarded as "a particular function" performed by "a functionary of a
foreign state" but are instead acts that are "outside the scope of the official duties" of the officials
in question.
Recent U.S. Developments
14. The U.S. has adopted a common law approach to immunity rationae materiae and at least
one court has ruled that state officials do not enjoy immunity for violations of jus cogens norms.
In 2010, in Samantar v. Yousuf,1O the U.S. Supreme Court considered whether the U.S. Foreign
Sovereign Immunities Act, 1976 ("FSIA") provided Mohamed Samantar with immunity from
8 Jaffe, ibid, CCIl Authorities, Tab 2 at para 38.
9 See Curtis A Bradley & Laurence R Helfer, "International Law and the US Common Law of Foreign Official Immunity" (2011) 2010 Supreme Court Review 213 at 233-36, CCll Authorities, Tab 4; Anthony 1. Colangelo "Jurisdiction, Immunity, Legality, and Jus Cogens" (2013) 14 Chicago Journal of International Law 53, CCIl Authorities Tab 5.
10 Samantar v. Yousuf, 560 U.S. 210 (20 I 0), CCIJ Authorities, Tab 6.
4
civil suit by victims of torture who sought to sue him in the United States. Mr. Sarnantar was the
First Vice President and Minister of Defence of Somalia from 1980 to 1986, and the Prime
Minister from 1987 to 1990.
15. As noted in Jaffe, the FSJA and SIA are "similar in purpose and content".li In Samantar,
the U.S. Supreme Court determined that the FSIA, which provides that a "foreign state shall be
immune from the jurisdiction of the courts of the United States and of the States", except as
provided in the statute, does not extend to individuals. 12 The Court then remanded the matter on
the issue of whether Mr. Samantar would be entitled to immunity at common law.
16. In its opinion on remand,13 the Fourth Circuit held that Mr. Samantar was not entitled to
immunity at common law. The Fourth Circuit held:
... [C]ustomary international law has long distinguished between status-based immunity afforded to sitting heads-of-state and conduct-based immunity available to other foreign officials, including former heads-of-state. With respect to conduct-based immunity, foreign officials are immune from "claims arising out of their official acts while in office". 14
17. After summarizing a long line of cases standing for the proposition that "a foreign official
may assert immunity for official acts performed within the scope of his duty, but not for private
acts where the officer purports to act as an individual and not as an official, [such that] a suit
directed against that action is not a suit against the sovereign",15 the Fourth Circuit held:
Unlike private acts that do not corne within the scope of foreign official immunity,jus cogens violations may well be committed under color of law and, in that sense, constitute acts performed in the course of the foreign official's employment by the Sovereign. However, as a matter of international and domestic law,jus cogens violations are, by definition, acts that are not officially authorized by the Sovereign. 16 [emphasis added]
18. The Fourth Circuit observed that it was following U.S. authorities that have concluded
"that jus cogens violations are not legitimate official acts and therefore do not merit foreign
11 Jaffe, supra note 6, CCIJ Authorities, Tab 2 at para. 29.
12 Samantar, supra note 10, CCIJ Authorities, Tab 6 at 12.
13 Yousufv. Samantar, 669 F3d 763 (4th Cir. 2012), [Yousuj], CCIJ Authorities, Tab 7.
14 Yousuf, ibid., CCIJ Authorities, Tab 7 at 9.
15 Yousuf, ibid., CCIJ Authorities, Tab 7 at 10.
16 Yousuf, ibid., CCIl Authorities, Tab 7 at 12.
5
official immunity". 17 The Fourth Circuit concluded that "under international and domestic law,
officials from other countries are not entitled to foreign public official immunity for jus cogens
violations, even if the acts were performed in the defendant's official capacity.,,18
19. The Fourth Circuit's approach in Samantar contemplates a simple approach to the
question of rationae materiae: the courts should ask whether the alleged conduct by an
individual official violates jus cogens norms. Where this is the case, the conduct is beyond what
a state can authorize (even if purportedly done under some "official capacity"). The need to
provide redress for jus cogens norms must prevail over state immunity, and the individual
official against whom such redress is sought should not obtain the benefit of immunity.
Recent U.K. Developments
20. In Pinochet (No.3), 19 the House of Lords determined that state immunity did not protect
a former head of state from being extradited to Spain to be tried for alleged acts of torture. As
Lord Browne-Wilkinson observed in that case, "[h low can it be for international law purposes an
official function to do something which international law itself prohibits and criminalizes?,,2o In
other words, acts prohibited by jus cogens norms cannot be officia1.21
17 Yousuf, ibid., CClJ Authorities, Tab 7 at 14.
18 Yousuf, ibid., CCIJ Authorities, Tab 7 at 14. Relatedly, some U.S. courts have previously considered the issue of immunity for acts that are illegal under the domestic law of the officials claiming immunity. In re Estate of Ferdinand Marcos, 25 F.3d 1467 (9th Cir. 1994), CCIJ Authorities, Tab 8, the US Court of Appeal (Ninth Circuit) held that the former Philippine president's acts of torture and other human rights violations against citizens of the Philippines were not sanctioned by Philippine law. Similarly, in Doe v. Lill, 349 F. Supp. 2d 1258, CCl] Authorities, Tab 9, Chinese Falun Gong practitioners brought an action against local Chinese government officials, including the Beijing mayor, for torture and other human rights violations that had occurred in China. In entering default judgments against the Chinese officials, the Court examined domestic Chinese law and held that the acts of the officials were not legally sanctioned under domestic Chinese law. The Court held that acts by officials did not attract immunity even though there were sanctioned by a covert state policy.
19 Regina v. Bow Street Metropolitan Stipendiary Magistrate and Others, Ex parte Pinochet Ugarte (No.3) [1999] UKHL 147, [Pinochet], CCl] Authorities, Tab 10.
2D Pinochet, ibid., CCl] Authorities, Tab 10 at 205.
21 As noted in Bradley and Helfer, supra note 9, CCl] Authorities, Tab 4 at 239-40, "in the decade following Pinochet, courts and prosecutors across Europe and elsewhere have commenced criminal proceedings against former officials of other nations for torture and other violations of jus cogens." As noted by Colangelo, supra note 9, CCl] Authorities, Tab 5 at 84, "At least since Nuremberg, international law has held that conduct-based immunity does not protect state agents and former officials from suit for serious offenses against international law."
6
21. In Jones v. Saudi Arabia,22 which involved a civil claim for alleged torture against Saudi
Arabia and one of its officials, the U.K. Court of Appeal applied this principle to civil, in
addition to criminal, cases. After observing that Pinochet was not concerned with civil liability,
and that Jaffe and other authorities were "not concerned with systematic torture or any equivalent
international crime",23 Lord Justice Mance held:
Taking the basic considerations which underlie state immunity, criminal proceedings against individual alleged torturers involve domestic courts in "interfering in" and adjudicating upon the internal affairs of a foreign sovereign state. It is also natural that a state should stand behind its officials or agents in relation to contested allegations of torture, unless and until such allegations are proven. To that extent, criminal proceedings against an alleged torturer may be said indirectly to implead the foreign state. It is not easy to see why civil proceedings against an alleged individual torturer should be regarded as involving any greater interference in or a more objectionable form of adjudication upon the internal affairs of a foreign state.
Nor is it easy to see why a civil claim against an individual torturer should be regarded as indirectly impleading the foreign state in any more objectionable respect than a criminal prosecution ... I am not impressed, in the context of claims for systematic torture, by suggestions that the relevant state would have to indemnify its officers. A state may well feel obliged to investigate for itself any allegations of torture. But this it should in any event do pursuant to the Torture Convention. A state is of course also always free to fund the defence of any claim. It is implausible to suppose that it would do so on the basis that it had authorised or condoned systematic torture. And if torture by one of its officials was confirmed it would presumably disown the official's conduct. There is no basis on which the state could be made liable to indemnify one of its officials proved to have committed systematic torture.24
22. Lord Justice Mance's reasoning is sound: there is no rational basis to differentiate
between civil and criminal proceedings when determining whether individual officials who
violate jus cogens norms should be granted state immunity. As for the argument that naming an
individual official as a defendant in a case involving a violation of jus cogens norms impleads
the state, it cannot, as Lord Justice Mance points out, be assumed that the state will have to
support or indemnify the individual. It was therefore surprising, when the House of Lords
22 Jones v. The Ministry of the Interior AI-Mamtaka Al-Arabiya as (The Kingdom of Saudi Arabia) & Anor [2004] EWCA Civ 1394, [Jones], CCIJ Authorities, Tab 11.
23 Jones, ibid., CCIl Authorities, Tab 11 at para. 74.
24 Jones, ibid, CCIJ Authorities, Tab 11 at paras. 75-76.
7
considered Jones v. Saudi Arabia,25 that Lord Bingham confined this principle only to the
criminal context, concluding that immunity rationae materiae was not available in the civil
context.
23. Lord Bingham held that a foreign state's right to immunity cannot be "circumvented by
suing its servants or agents".26 Lord Bingham distinguished Pinochet (No.3), as "categorically
different" since it fell within the universal criminal jurisdiction mandated by the Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("CAT,,).27
In contrast, Lord Bingham did not perceive the CAT as providing universal civil jurisdiction.
24. Lord Bingham found that the application of state immunity against civil claims based on
jus cogens violations is an area of international law that is "in a state of flux", and that there is
an absence of" international consensus in favour of the exception [to immunity in civil cases].,,28
However, this conclusion merely draws on one side of the unsettled debate over the other.
25. As recognized by a number of cornrnentators,29 there is no logical basis for distinguishing
between criminal and civil liability for violations of jus cogens norms. Indeed, as one scholar
notes, "[i]f immunity is abrogated in criminal proceedings where penalties are greater, it might
seem to follow afortiori that it should also be disregarded in civil suits.,,3o The only reasoning
offered by Lord Bingham was the following:
A state is not criminally responsible in international or English law, and therefore cannot be directly impleaded in criminal proceedings ... It is, however, clear that a civil action against individual torturers based on acts of official torture does indirectly implead the state since their acts are attributable to it.,,31
25 Jones v. Ministry o/the Interior o/the Kingdom ~fSaudi Arabia and another (Secretary o/State/or Constitutional Affairs and others intervening) [2006] UKHL 26 [Jones HL], CCIJ Authorities, Tab 12.
26 Jones HL, ibid, CCIJ Authorities, Tab 12 at para. 10.
27 Jones HL, ibid., CCIJ Authorities, Tab 12 at para. 19; Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, 1465 UNTS 85, Art 14.
28 Jones HL, ibid, CCIJ Authorities, Tab 12 at para 26.
29 Chimene 1. Keitner, "Foreign Official Immunity and the Baseline Problem" 80 Fordham Law Reveview (201 I) 605, CCIJ Authorities, Tab 13; Jane Wright, "Retribution but No Recompense: A Critique of the Torturer's Immunity from Civil Suit" (2010) 30 Ox/ordJournal o/Legal Studies 146, CCIl Authorities, Tab 14 at 173-177; Chimene 1. Keitner, "Foreign Official Immunity After Samantar," (2011) 44 Vanderbilt Journal of Transnational Law 837, CCIl Authorities, Tab 15 at 845; Colangelo, supra note 9, CCIJ Authorities, Tab 5 at 86.
30 Bradley and Helfer, supra note 9, CCIJ Authorities, Tab 4 at 247.
31 Jones HL, supra note 25, CCIJ Authorities, Tab 12 at para 31.
8
26. However, Lord Bingham did not substantiate this position further. As one scholar has
stated, in criticizing Jones, "It is difficult to see why [a suit against an individual official would
indirectly implead a state], unless one assumes that any damages claim would ultimately be met
by the state, rather than the individuaL Assuming that the state itself is immune under national
and international law, there is no rule, municipal or international, that would require the state to
indemnify the individual officials.,,32
27. Lord Bingham also ignored the point raised by Lord Justice Mance in the Court of
Appeal, regarding the implications of civil proceedings involving execution of state assets where
he stated:
That problem does not arise in respect of individuals. There would be no incongruity in allowing execution against the individual assets of an individual torturer, if these could be located and made the subject of execution. And any claim to hold the state itself responsible would have to be brought in that state, or in an international forum, and proved quite separately from any claim against the individual officer. 33
28. Indeed, in Samantar, U.S. courts have not seen any need for Somalia to be part of the
case, nor has Somalia provided any financial support to Mr. Samantar, demonstrated by the fact
that he was forced to declare bankruptcy.34 Nor have states indemnified individual officials in
other U.S. cases in which damages were collected.35
29. The House of Lords decision in Jones is now under appeal to the European Court of
Human Rights.36
30. CCIJ submits that the Court of Appeal in Jones was correct. The issue is whether
immunity can attach to conduct - rationae materiae - not whether the consequences for the
conduct ought to be classified as civil or criminal.
32 Wright, supra note 29, CCIJ Authorities, Tab 14 at 174-75.
33 Jones, supra note 22, CCIJ Authorities, Tab 11 at para 77.
34 In re Mohamed Ali Samantar, 14 June 2012, Bankr. D.Va., No. 12-11085-BFK), CCIJ Authorities, Tab 16.
35 See, e.g.,Romagoza Arce v. Garcia, Order of 16 March 2006, Fla. Dis. Ct., No.99-8364, CCIJ Authorities, Tab 17.
36 International Human Rights case (Jones v. United Kingdom) "Application Instituting Proceedings Submitted by Ronald Grant Jones" (18 September 2009), E.C.H.R. Pleadings, CCIJ Authorities, Tab 18.
9
Recent International Jurisprudence
31. Recently, in Germany v. Italy, the International Court of Justice (ICJ) held that Italy was
bound to grant Germany immunity from civil suit by victims of Nazi-era war crimes, following
several domestic judgments in Italy that denied Germany state immunity.37 The circumstances of
that case are distinguishable on two grounds. First, the ICJ was clear that its ruling related only
to the immunity of the state itself in respect of the actions of its armed forces, not the immunity
of individual officials.38 Second, Germany v. Italy dealt with war crimes and not violations of
the Convention Against Torture,39 a treaty which specifically provides that victims of torture are
entitled to an enforceable right to fair and adequate compensation. While customary international
law may provide states with immunity from foreign suit on the specific facts that were before the
ICJ, the entitlement of individual officials to conduct-based immunity was not addressed.4o
32. Scholars have noted an erosion of foreign official immunity in the face of jus cogens
violations, especially in relation to lower level officials and former officials (including heads of
state).41 While the trend has been clearer in the criminal context than in the civil context, cases
where domestic courts have extended immunity to individual officials other than diplomats or
heads of state are "relatively few and far between" and do not constitute proof of a concrete rule
under internationallaw.42
33. In addition, as commentators have noted, an application of immunity rationae materiae
that would consider the illegality of a foreign official's actions as irrelevant to the question of
whether he or she is entitled to immunity is untenable in light of determinations, like in
Samantar, that recognize that jus cogens norms cannot properly constitute official acts of state.
The better view of immunity rationae materiae would hold individuals to account for egregious
37 Jurisdictional Immunities a/the State (Germany v Italy), I.C.J., February 3, 2012 [Germany], CCIJ Authorities, Tab 19.
38 Germany, ibid., CCIJ Authorities, Tab 19 at para. 91.
39 Germany, ibid., CCIJ Authorities, Tab 19 at para. 87.
40 See Chimene 1. Keitner, "Germany v Italy and the Limits of Horizontal Enforcement: Some Reflections from a United States Perspective" (2013) II Journal of International Criminal Justice 176, CCIJ Authorities, Tab 3.
41 Bradley and Helfer, supra note 9, CCIJ Authorities, Tab 4 at 238.
42 On Writ a/Certiorari to the United States Court 0/ Appeals/or the Fourth Circuit (Youse/v. Samantar) "Brief of Professors of Public Law and Comparative Law as Amici Curiae, In Support of Respondents" (27 January 2010) U.S. Supreme Court Pleadings, CCIJ Authorities, Tab 20 at 16.
10
acts that can never be lawfully authorized at international law (that is, violations of jus cogens
norms).43
Proposed Canadian Approach
34. CCIl submits that in determining whether immunity attaches to the conduct of a foreign
public official, Canadian courts should carry out a fact-based analysis to determine whether the
conduct of that official was a violation of ajus cogens norm. Where it is, irrespective of whether
the official purports to have engaged in conduct authorized by the state, state immunity should
not be granted. Jus cogens violations can never legitimately be performed within an official
capacity. International law gives paramount importance to prohibiting, deterring and redressing
jus cogens violations.
35. This Court, like the Fourth Circuit in Samantar, should adopt the position that a state can
never legally sanction torture, genocide and other egregious violations of international law.
PART IV - COSTS
36. CCIl seeks no costs and asks that no costs be awarded against it.
PART V - ORDER SOUGHT
37. CCIl requests permission to present oral argument at the hearing of the appeal. It takes no
position on the specific outcome of the appeaL
ALL OF WHICH IS RESPECTFULLY SUBMITTED this 18th day 0
Mr. John A. Terry Ms. Sarah R. Shody TORYSLLP Counsel for Canadian Centre for International Justice
..\3 Craig Forcese, "De-Immunizing Torture: Reconciling Human Rights and State Immunity" (2007) 52 McGill Law Journal 127, CCIJ Authorities, Tab 21; Wright, supra note 29, CCIl Authorities, Tab 14 at 146.
61227-200116235028.4
11
PART VI-TABLE OF AUTHORITIES
CANADIAN JUDGMENTS
Tab2 Jaffe v. Miller [1993] 13 OR (3d) 745 (CA)
Reference in Argument
5,6,7,10
FOREIGN JUDGMENTS
United States
Tab 20
Tab 9
Tab 8
Tab 16
Tab 17
Tab 6
Tab 7
United Kingdom
Tab 18
Tab 11
Reference in Argument
On Writ of Certiorari to the United States Court of Appeals 40 for the Fourth Circuit (Yousefv. Samantar) "Brief of Professors of Public Law and Comparative Law as Amici Curiae, In Support of Respondents" (27 January 2010) U.S. Supreme Court Pleadings
Doe v. Liu Qi, 349 F. Supp. 2d 1258 (N.D. Cal. 2004) 17
In re Estate of Ferdinand Marcos, 25 F.3d 1467 (9th Cir. 17 1994)
In re Mohamed Ali Samantar, 14 June 2012, Bankr. D.Va., 33 No. 12-11085-BFK
Romagoza Arce v. Garcia, Order of 16 March 2006, Fla. Dis. 34 Ct., No.99-8364
Samantar v. Yousuf, 560 U.S. 210 (2010)
Yousufv. Samantar, 669 F3d 763 (4th Cir. 2012)
9, 10, 11
12, 13, 14, 15,16,17
International Human Rights case (Jones v. United Kingdom) 35 "Application Instituting Proceedings Submitted by Ronald Grant Jones" (18 September 2009), E.C.H.R. Pleadings
Jones v. The l\1inistry of the Interior AI-Mamlaka AI-Arabiya 21,22,23,32 as (The Kingdom of Saudi Arabia) & Anor [2004] EWCA Civ 1394
Tab 12
Tab 10
European
Tab 19
DOCTRINE
TabS
Tab 15
Tab 13
Tab3
Tab 21
Tab 4
Tab 14
12
Jones v. Ministry of the Interior of the Kingdom of Saudi Arabia and another (Secretary of State for Constitutional Affairs and others intervening) [2006] UKHL 26
Regina v. Bow Street Metropolitan Stipendiary Magistrate and Others, Ex parte Pinochet Ugarte (No.3) [1999] UKHL 147
Jurisdictional Immunities of the State (Germany v Italy), I.C.J., February 3, 2012
24,25,26, 27,30
18, 19
36,37,38
Reference in Argument
Anthony J. Colangelo "Jurisdiction, Immunity, Legality, and 8, 20, 28 Jus Cogens" (2013) 14 Chicago Journal ofInternational Law 53
Chimene I. Keitner, "Foreign Official Immunity After 28 Samantar" (2011) 44 Vanderbilt Journal of Transnational Law 837
Chimene I. Keitner, "Foreign Official Immunity and the 29 Baseline Problem" (2011) 80 Fordham Law Review 605
Chimene I. Keitner, "Germany v Italy and the Limits of 40 Horizontal Enforcement: Some Reflections from a United States Perspective" (2013) 11 JournalofInternational Criminal Justice 176
Craig Forcese, "De-Immunizing Torture: Reconciling 41 Human Rights and State Immunity" (2007) 52 McGili Law Journal 127
Curtis A Bradley & Laurence R Helfer "International Law 8,20,29,39 and the US Common Law of Foreign Official Immunity" (2011) 2010 Supreme Court Review 213
Jane Wright, "Retribution but No Recompense: A Ciitique of 28, 31, 41 the Torturer's Immunity from Civil Suit" (2010) 30 Oxford Journal of Legal Studies 146