The second element to note in relation to the Victims of Terrorism Act is the target of the possible suit in damages: any person, “listed entity”, or foreign state whose immunity has been lifted may be subject to the jurisdiction of Canadian courts. Persons may be real or corporeal persons who committed the act or omission that resulted in the loss or damages in a manner related to an act of terrorism. What is interesting here is that a cause of action is created against potential respondents which are not vetted by the Canadian Government as authors or sponsors of terrorism. To go back to the scenario which played out in Yassin, the Act invites the court to investigate and come to its own conclusions as to whether a person or corporation can be held liable for an act falling within the definition of terrorism. This stands in contrast to the two other categories of potential respondents identified by the Act. The “listed entities” refer to terrorist organisations which have been identified as such by way of an order of the Governor in Council (the Federal executive), pursuant to section 83.05 of the Criminal Code of Canada. The list currently includes organisations such as the LTTE, Hizbullah, the FARC and some forty other groups. Because of the nature of these organisations, and in particular the secrecy under which most operate, they often will prove evanescent targets against which judgment may perhaps be obtained but will be very hard to execute.
The most radical innovation of the Act relates to the last potential category of respondent, foreign states whose immunity has been lifted. The Act modifies the Canadian State Immunity Act to lift the immunity of a foreign state that has been listed by the Governor in Council as a sponsor of terrorism. The Act refers to the Criminal Code section on terrorism to suggest what criteria might guide the Federal Government in determining whether the act or omission of a foreign state warrants the latter’s designation as a sponsor of terrorism. This is of course a model borrowed from the United States, which some years ago adopted a similar denial of immunity against designated states sponsors of terrorism. The US experience illustrates well the perils of such an approach. At the moment, there are four states official designated as sponsors of terrorism and denied foreign state immunity in the US: Cuba, Iran, Syria, and Sudan. This first country on the list, Cuba, has never been seriously linked to acts of terrorism. It is, on the other hand, a country led by a regime against which previous US administrations were keen to demonstrate their antipathy. Conversely, it has been suggested that other countries which are not there should appear on that list, including Saudi Arabia and Pakistan, two countries which the US is keen not to offend. of terrorism by the executive branch is at best extraordinarily delicate and difficult, and at worst pure political manipulation. It remains to be seen how this will play out in Canada where the Act provides that a list must be drawn up within six months of its entry into force. There is a good case to make that the US list will influence the content of the Canadian one, and that Iran in any case is likely to appear at or near the top.
In lifting the immunity of foreign states, the Victims of Terrorism Act reverses the position which had been adopted by the Ontario Court of Appeal in Bouzari v. Iran and to some extent by the Quebec Superior Court in Khazemi v. Iran. In each case, an individual attempted to sue a foreign state on the basis of the violation of a fundamental norm of international law which occurred abroad, only to be turned away by Canadian courts on the basis of the clear immunity granted by the State Immunity Act. This was consistent viber database with the approach taken by the European Court of Human Rights, which in 2001 found in Al-Adsani v. UK that the immunity of a foreign state from a suit in damages for torture did not amount to a breach of the European Convention on Human Rights. There is some irony in the fact that Canada decided to lift the immunity of foreign states for acts of terrorism just a few days after the International Court of Justice declared for the first time that international law demands that such an immunity be given. In Jurisdictional Immunities of the States (Germany v. Italy), the ICJ rejected a series of arguments advanced by Italy to justify its decision to deny foreign state immunity to Germany in relation to violations of human rights and humanitarian law committed by German forces during the second world war. Specifically, the ICJ rejected an argument that a state could justify an exception to immunity in cases of violation of human rights by the foreign state. The Court further refused an argument that the jus cogens nature of the laws of armed conflict violated by Germany could justify an Italian lifting of the state immunity. It seems clear that Canadian courts will deny the immunity of a foreign state if it appears on the list of states sponsors of terrorism; it seems equally clear that this judicial decision will trigger the breach by Canada of its obligations under international law.