Thursday, June 30, 2005

Suing Iran's President: Never Say Never?

In my original post I stated that, legally speaking, the embassy hostages issue was pretty much a closed case, and that a suit is unlikely to be successful against the President-elect of Iran. Julian put some meat on the bones of this statement in his post concerning the Algiers Accords and statutes of limitation. Upon more reflection, I think we might have missed the key issue. Although I still think that think that a suit against the Iranian president-elect in his personal capacity would probably not survive, I want to revisit why that is the case and also set out how I think there may be at least a possibility of a suit going forward.

As I understand it, the Algiers Accords would bar suits by the hostages against Iran but not against Ahmadinejad for his actions as an individual. (The most recent example of former hostages unsuccessfully trying to sue Iran itself is the Roeder case.) The only way the Accords would sweep in Ahmadinejad and bar actions against him would be is if we view the hostage-takers as having been an "instrumentalities" of Iran as opposed to merely "nationals" of Iran. The Algiers Accords bars suits against Iran and, for the purposes of the Accord, instrumentalities of Iran are part of the definition of “Iran.” That is not the case regarding "nationals." So, while instrumentalities cannot be sued by U.S. nationals or by the U.S. government outside the Iran-U.S. Claims Tribunal (for actions related to the hostage crisis), I do not think there is any such bar against suing nationals.

So, were the hostage-takers instrumentalities and thus immune to suit? Viewing the individuals as instrumentlaities of Iran would go beyond the ICJ’s findings in the Diplomatic and Consular Staff Case, which found that the hostage-takers were not agents of the Iranian state. (However, responsibility for the hostage crisis could still be imputed to Iran based on Iran’s obligations of diplomatic protection. See especially paragraphs 56-61 of the Judgment.) One could argue that if the hostage-takers are not instruments of Iran, then claims against them on a personal basis are possibly not precluded by the Algiers Accords.

But, what about the statute of limitations?

As Julian correctly observed, a suit against Ahmadinejad would still have to overcome the statute of limitations of the statute under which the suit arose. However, I do not think the relevant statute would be the Alien Tort Statute, as that would apply only to a suit by an alien. Rather, we would look to U.S. antiterrorism laws and, there is now a move to remove statutes of limitations from the most serious offenses in these statutes. (I am not sure whether these amendments have been enacted.) Where time limitations still exist, they are in the five to ten year range. So, if the acts of Ahmadinejad were those that fall into the “most serious offenses” category of certain terrorism laws, and if the statute of limitations had been removed, then the suit may not be time-barred. Otherwise, it is barred as Julian argued. But the relevant statute of limitations would likely be based on an anti-terrorism statute, not the Alien Tort Statute.

Let’s say that there is no applicable statute of limitations. Does the suit survive? Probably not at this time. The litigants would face the possibility of Head of State immunity. The President-elect would likely be found to have such immunity for his term in office. This leaves a possibility of a suit after he leaves office for any alleged crimes he committed before he was in office but, while he is in power, he would probably have immunity from judicial proceedings.

So I think that, at the end of the day, it is unlikely that a suit will be maintained. But I don’t think the reason is based on the Algiers Accords or the Alien Tort Statute but rather the statute of limitations of an anti-terrorism statute and Head-of-State immunity. And, depending on whether or not a relevant statute of limitations actually exists, I think there may be a slim chance that a suit can be maintained, though not until after Ahmadenijad leaves office.


Blogger Julian Ku said...

Hey Chris,

Good catch. I don't know what I was thinking with respect to the ATS. Thinking out loud is a bit dangerous. thanks.

6/30/2005 11:33 PM  
Anonymous Anonymous said...

Under US law, Head of State immunity, or other immunity due to one's position in a foreign government, is only accorded if the Department of State determines that it should be. Declining to extend Head of State immunity to the President of a country we do not have diplomatic relations with, who is alleged to have committed an act of terrorism, shouldn't be hard to do - the risk of establishing a precedent that might prove inconvenient later is small. It would also establish the US refusal to accept the idiotic decision of the ICJ in the Congo v. Belgium case.

7/01/2005 6:33 AM  
Blogger Chris Borgen said...

I think that is highly unlikely. The U.S. has been protective of an expansive definition of head of state immunity in part because we want the same protection for our own leaders.

7/01/2005 11:20 AM  

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