Islamic Republic of Iran v. Canada: An Evaluation of the Terrorism Exception to State Immunity
In 2012, Canada enshrined the terrorism exception to state immunity in the Justice for Victims of Terrorism Act (JTVA), an amendment to the State Immunity Act (SIA) which enables private plaintiffs to bring civil cases against states deemed sponsors of terrorism. These are currently the Islamic Republic of Iran and the Syrian Arab Republic. On June 27, 2023, Iran sued Canada before the International Court of Justice (ICJ), alleging that this legislation violates customary international law. The normative implications of the court’s future ruling are not limited to Canada. Although the United States has not accepted the jurisdiction of the ICJ, Congress passed the Justice Against Sponsors of Terrorism Act (JASTA) in 2016, which plaintiffs can utilize to bring claims against Iran, Syria, North Korea, and Cuba. Based on “the restrictive theory of state immunity,” precedent relative to the ICJ and various national courts, and international legal requirements including state practice and opinio juris, the terrorism exception to state immunity as presented in the JTVA seems to violate customary international law when terrorist activities are acta jure imperii.
In order to prove Canada’s alleged breach of customary international law, Iran argued in its application to the ICJ that “under customary international law there is no so-called “‘terrorist exception’ to state immunity” (paragraph 22). Is Iran correct that the terrorism exception serves as a violation of existing customary international law? Firstly, the question of whether terrorist activities are acta jure gestionis, non-sovereign acts which generally do not entail immunity, or acta jure imperii, state acts which tend to be accompanied by state immunity, must be answered. Secondly, in order to qualify as customary international law, this exception must satisfy two conditions: it needs to serve as widespread and consistent state practice and to reflect opinio juris, a sentiment of legal obligation felt on the part of states to act accordingly.
Given that states have increasingly subscribed to the restrictive theory of state immunity since the mid-twentieth century and that some courts have recognized it as a feature of customary international law, state immunity can be considered through the lens of the nature of terrorist activities. The restrictive theory of state immunity essentially grants states immunity for official governmental actions, acta jure imperii, as opposed to private or commercial acts, acta jure gestionis. Official state acts might include those involving the military, while private acts might include states bargaining for goods with merchants and other private entities. One controversial exception presented in the United Nations Convention on Jurisdictional Immunities of States and their Properties asserts that state immunity is not ensured when there is a “proceeding which relates to pecuniary compensation for death or injury to the person, or damage to or loss of tangible property, caused by an act or omission which is alleged to be attributable to the State” (Article 12). Accordingly, the implementation of this exception is not presented as contingent upon whether the acts or omissions are acta de jure imperii or acta de jure gestionis; the state’s immunity would presumably be disregarded or revoked regardless within national courts.
Nevertheless, the ICJ’s decision in the 2012 case Jurisdictional Immunities of the State, based on Germany’s claim that Italy had failed to respect state immunity by permitting civil cases related to Nazi Germany’s military conduct during World War II, revealed that the classification of acts as acta jure imperii and acta jure gestionis remains significant on matters of state immunity. The decision states that the “illegality of the acts at issue has been admitted by Germany at all stages of the proceedings” but that “this fact does not alter the characterization of those acts as acta jure imperii” (paragraph 60). As such, the court found that the illegality of Germany’s actions did not necessarily render them private acts as opposed to official acts.
So, are terrorist activities acta jure imperii or acta jure gestionis? States’ relationship with instances of terrorism may be clear or ambiguous. For example, the attack described in the 2021 case Zarei v. Iran in front of the Ontario Superior Court might be considered acta jure imperii since the Iranian Revolutionary Guard Corp, the armed forces of Iran, downed Ukrainian International Airlines Flight PS752 and killed 85 Canadians. However, in the 2022 case Hashwah v. Qatar National Bank Q.P.S.C. and others, the court found that “by definition a private citizen cannot provide support for terrorist activity that is ‘state sponsored’” (paragraph 28). State-sponsored terrorism is thus presented as distinct from acta jure gestionis. By distinguishing between the role of the private citizen and the state, the court asserted that terrorist activities are not all acta jure gestionis or acta jure imperii. Instead, they are dependent upon the actors involved and the specific details of the acts.
Furthermore, mixed state practice and limited opinio juris would hinder the claim that the JVTA can exist under customary international law. Terrorism exceptions to state immunity, regardless of whether the terrorist activities are acta jure imperii or acta jure gestionis, only exist as legislation in the United States and Canada, and other states have rejected them. For instance, during a 2019 civil judgment the First Chamber of the Luxembourg District Court acknowledged Iran’s immunity since it found that the government’s financial aid of Al-Qaeda relative to the September 2001 attacks constituted acta jure imperii. As to opinio juris, given the diverse opinions centered around the existence of the terrorism exception globally and the specific fact that Iran is contesting the validity of the JVTA, other states do not seem to believe that the exception is a legal obligation under international law.
When national courts establish that certain cases of terrorism are acta jure imperii, the terrorism exception to state immunity as presented in the JVTA and JASTA seems to violate customary international law based on the restrictive theory of state immunity, mixed legal precedent, insufficient state practice, and opinio juris. If the ICJ finds that this exception should not be recognized under existing customary international law, then the legal recourse to which victims, survivors, and their families have access might become even more limited.
Edited by Steely Forrester