FACTUM OF THE INTERVENER CANADIAN CENTRE … · [email protected] ... Ms. Martha A. Healey Norton Rose Fulbright Canada LLP Suite 1500 45 O'Connor Street ... Tab 1, at § 33

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


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


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


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


Counsel for Canadian Bar Association

Mr. John Norris Ms. Carmen Cheung Simcoe Chambers Suite 100 116 Simcoe Street Toronto, Ontario M5H 4E2


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


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


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

13

UNITED NATIONS DOCUMENTS

Tab 1 International Law Commission, Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law, AlCN.4/L.702, 18 July 2006


1