Torture and the Limits of Sovereign Immunity: Kazemi Estate v Islamic Republic of Iran
In Kazemi Estate v Islamic Republic of Iran, 2014 SCC 62, the Supreme Court of Canada (“SCC”) looks at whether Canadians have the right to sue foreign governments for damages resulting from acts of torture. The SCC ultimately denied the victims’ claim for a civil action, finding that acts of torture are not exceptions to the general rule of sovereign immunity, as codified in the State Immunity Act, RSC 1985, c S-18 [SIA]. The SCC also entertained — but ultimately set aside — arguments challenging the constitutionality of certain provisions of the SIA, clearly stating that efforts to restrict sovereign immunity should be decided on by Parliament, not the courts.
A Tragic History
The facts of the case are, in the SCC’s own words, “nothing short of [tragic]” (para 1) and “horrific” (para 3). Zahra Kazemi was a freelance journalist arrested in Tehran in 2003 for taking photographs of a protest outside of the notorious Evin prison. After being detained in the same prison she had been reporting on, Kazemi was beaten, tortured, and sexually assaulted. Less than two weeks after her arrest, she was transferred unconscious to a Tehran hospital, where she died a short time later as a result of a head injury sustained while in custody. Efforts by her family to receive independent medical assistance, to postpone removing her from life support, to receive the results of an autopsy, and to have her remains sent to Canada were all rejected.
In 2006, Kazemi’s son, Stephan Hashemi, instituted proceedings in the Superior Court of the Province of Quebec seeking damages of $17 million, on the basis of his own psychological and emotional suffering and in his capacity as liquidator of his mother’s estate (para 11). The defendants named in the action comprised the Islamic Republic of Iran; Iran’s head of state, the Ayatollah Sayyid Ali Khamenei; and two lower-level government officials, Saeed Mortazavi (who, as Chief Public Prosecutor of Tehran, ordered Kazemi’s arrest) and Mohammad Bakhshi (the former Deputy Chief of Intelligence at Evin prison). The defendants, who were involved in litigation both at trial and in a subsequent appeal, argued that Canadian courts lacked jurisdiction and should dismiss the action on the basis of state immunity.
The Quebec Court of Appeal (2012 QCCA 1449) ultimately dismissed the claims of both Hashemi and his mother’s estate, a decision upheld by the SCC. In its holding, the SCC examines both the constitutionality of the SIA and the scope of its application in light of recent developments in international law. In what follows, I will set aside constitutional considerations to focus on the latter element of the decision.
State Immunity and International Law
The SIA grants immunity to foreign states from the jurisdiction of domestic courts in civil matters. Exceptions to this “general rule of customary international law” (para 38) are limited to proceedings causing death, personal injury, or the damage or loss of property that “occurs in Canada,” as well as to specified foreign states linked to terrorism (this latter exception was introduced in a 2012 amendment–see para 44).
There are no statutory provisions restricting immunity in cases of torture. The question facing the SCC is whether the SIA should be interpreted as creating “a mandatory universal civil jurisdiction in respect of claims of torture” (para 32). The SCC acknowledges several important considerations in this regard, including Canada’s commitment to the “universal prohibition of torture” (para 46), as well as the fact that, among the international community, the prohibition of torture has become a “peremptory norm” (i.e., a jus cogens or “fundamental tenet of international law that is non-derogable” (para 47)).
Writing in dissent, Justice Abella argues that, given these changes in customary international law, there is “no reason to include torture in the category of official state conduct attracting individual immunity” (para 174). Consequently, she believes that the allegedly tortious actions of the defendants Mortazavi and Bakhshi–who were responsible for the imprisonment and treatment of Kazemi at Evin prison–fall within the jurisdiction of Canadian courts. She articulates the conundrum created by the “legal fluidity” around the issue of torture by posing the following question: “[H]ow can torture be an official function for the purpose of immunity under international law when international law itself universally prohibits torture?” (para 73).
However, writing for the majority, Justice LeBel carves out a more conservative role for the SCC, expressing his reluctance to “intervene in delicate international policy making” (para 169). Indeed, he reasons that the exceptions to sovereign immunity outlined in the SIA are exhaustive, and cautions against a purposive interpretation of the existing legislation: “[S]tate immunity is not solely a rule of customary international law. It also reflects domestic choices made for policy reasons, particularly in matters of international relations” (para 45).
Put another way, Justice LeBel places the ball in the legislative court. Creating new jurisdiction for Canadian courts could have huge implications for Canada’s international relations. In the absence of clear guidelines from Parliament, he warns against embellishing existing legislation: “[I]n drafting the SIA, Canada has made a choice to uphold state immunity as the oil that allows for the smooth functioning of the machinery of international relations. Canada has given priority to a foreign state’s immunity over civil redress for citizens who have been tortured abroad” (para 46).
Indeed, LeBel emphasizes that Parliament has “the power and the capacity” (para 170) to allow victims of torture to seek civil remedies against their torturers, in the same way that it recently changed the law to include terrorism as an exception to sovereign immunity. The imperative to do so cannot come from the courts.