In the Republic of Iraq v. Beaty, the Supreme Court will soon decide whether the Republic of Iraq is immune from a civil suit brought by several U.S. military and media personnel allegedly captured and mistreated by the former Iraqi regime headed by Saddam Hussein during the 1991 Kuwait invasion. This case consolidates several lawsuits filed by over 236 plaintiffs that seek more than $3 billion in damages against the new government in Iraq for the misgivings of the former Hussein regime.
At the heart of these cases is the Foreign Sovereign Immunities Act (FSIA) which provides foreign states immunity from civil suits filed by private citizens. However, in 1996, Congress revised the FSIA to permit private US citizens to sue countries designated by the State Department as a “state sponsor of terror.” This “terror exception” has prompted a flood of civil suits to proceed through U.S. courts seeking billions of dollars in damages from sovereign governments.
The United States government has urged dismissals of these cases. In the case involving Iraq, President George Bush moved to restore Iraq’s sovereign immunity by removing Iraq from the State Department’s terror list and by making the terror exception to the FSIA inapplicable to Iraq. The Supreme Court will soon decide whether the President had authority to do so.
The Supreme Court’s decision on this matter will also likely affect the two pending cases concerning the Persepolis artifacts for several reasons.
First, the Supreme Court will address whether courts should defer to the executive branch’s decision to restore the sovereign immunity of a foreign nation, given the delicate national security and foreign policy considerations that underlie such a decision. The argument is that President Bush determined that the new democratic government of Iraq is now an ally in the fight against terror and not a sponsor of terror. This decision reflected the President’s judgment that Iraq should thus be freed from the punitive sanctions and the tremendous financial burdens of being forced to compensate the victims of the former Saddam Hussein regime. The concern is that by allowing a flood of civil suits to proceed through U.S. federal courts, Iraq will be forced to pay billions of dollars in damages to private citizens through, for instance, the Iraqi reconstruction fund which was designed to restore Iraq’s governance and economy.
A similar fate may hold true for the Iranian people, who will have to pay billions of dollars from a treasury already suffocated by sanctions and may be forced to give up their lawful right to priceless Persepolis artifacts that could be auctioned off to pay for the multi-million dollar judgments. The Department of Justice has urged dismissals of the two cases concerning the Persepolis artifacts, placing additional pressure on the District Court to defer to the DOJ on this matter.
Second, many, including the U.S. government, are concerned that the failure to restore Iraq’s sovereign immunity may jeopardize US interests abroad. Similar civil suits may be filed and collected against the United States and its assets abroad in retaliation. Given its world-wide reach and involvement in foreign nations, the U.S. would be especially vulnerable to such reciprocal lawsuits abroad. Presently, the Iraqi government is in favor of handling suits brought by Iraqis against the United States through State-to-State negotiations. However, should the United States allow lawsuits to proceed through its courts, Iraq may soon change its policy.
Moreover, nations may use the issue of their sovereign immunity as leverage on separate but equally vital foreign policy concerns. For instance, members of the Iraqi parliament have already cited the issue of their nation’s sovereignty as a critical concern that will drive their decision to renew the current Status of Forces Agreement (SOFA) between the US and Iraq. The SOFA agreement is vital to ensuring that U.S. personnel and troops in Iraq are immune from civil and criminal suits. Similarly, by allowing multi-million dollar judgments to be collected through the auctioning of priceless Persepolis Artifacts, US courts may hurt the Obama Administration’s efforts to diplomatically engage Iran.
In each of these cases, the issue is not whether or not U.S. victims of acts of violence abroad are entitled to some form of compensation but rather the means with which such claims should be pursued. The U.S. government has consistently argued that the plaintiffs should not be allowed to file suit through U.S. courts against sovereign nations, but rather must pursue their claims through government-to-government negotiations.
Some argue that the appropriate course is to establish a fund to compensate the victims of violence committed by governments abroad and to allow Washington to negotiate for payments by governments judged to be responsible for the acts of violence. There is ample precedent for such an approach. For instance, the current US policy with respect to Japan and Germany for the acts of their prior regimes during World War II, is to compensate victims of the violence through state-to-state negotiations.