Mens Rea
| Pages | 66-68 |
66 Volume 17, July–September 2011 international law update
© 2012 Transnational Law Associates, LLC. All rights reserved. ISSN 1089-5450, ISSN 1943-1287 (on-line) | www.internationallawupdate.com
the Mercedes with the district court, constructively
bringing the shipwreck within the court’s territorial
jurisdiction. Because this is an in rem action based
on the arrest of sovereign property, § 1609 provides
the Mercedes with presumptive immunity from
arrest.” 657 F.3d 1175.
Further, the Court nds that the exceptions of
the FSIA do not apply to the Mercedes. ough
the Plainti does not invoke any of the applicable
exceptions to the presumptive immunity found
under the FSIA, the Court addresses its arguments
that the Mercedes is not immune due its engagement
in commercial activity. e Court found that the
Mercedes was not acting as an ordinary private person
in the marketplace; instead, it was a Spanish Navy
vessel. “Although the Mercedes did transport private
cargo of Spanish citizens for a charge, the transport
was of a sovereign nature. According to Spanish naval
historians, providing protection and safe passage to
property of Spanish citizens was a military function
of the Spanish Navy, especially in times of war or
threatened war. . . . erefore, the Mercedes was
acting like a sovereign by transporting specie during
a time of threatened war.” 657 F.3d 1177.
Lastly, Odyssey argues that the Mercedes is
not immune from arrest because the FSIA only
applies when sovereign property is in the sovereign’s
possession, and Spain was not in possession of the
vessel. However, the Court rules that the FSIA
does not include any possession requirements.
“An examination of the FSIA reveals no possession
requirement exists in any part of the statute. When
Congress determined the exact degree and character
of subject matter jurisdiction over the property
of foreign sovereigns under the FSIA, it did not
provide an exception to immunity for property not
in a foreign sovereign’s possession.” 657 F.3d 1179
(internal citation omitted). erefore, the Court
holds that the FSIA applies whether the property is
in the possession of the sovereign at the time of the
arrest or not.
: Odyssey Marine Exploration Inc. v. the
Unidentied Shipwrecked Vessel, 657 F.3d 1159
(11th Cir. 2011).
MENS REA
F C ’
S H’
K
A T S
In the 1980s, the Republic of Iraq was involved
in a long-term conict with Iran. e governments
of several countries overtly condemned Iraq’s use
of mustard gas against Iran. However, Iraq, under
the regime of Saddam Hussein, launched chemical
weapon attacks against the Kurds in northern
Iraq, accusing them of collaborating with Iran. An
international coalition of governments, known as
the Australia Group, imposed licensing restrictions
on the exports of chemicals used to make chemical
weapons, including mustard gas. Defendant, Alcolac,
began selling thiodiglycol (“TDG”) under the trade
name Kromfax. ough TDG could be used to
manufacture several products, Alcolac is aware that
it could be used to manufacture mustard gas.
e U.S. State Department and the U.S.
Customs Service warned Alcolac that TDG was
subject to export restrictions. Yet, in 1987, Alcolac
lled orders for 120 tons of Kromfax from a German
company. is order was eventually shipped to Iran.
Later in 1987 and 1988, Alcolac also delivered four
shipments of Kromfax to a company in New York,
though the Defendant knew this company was a
shell corporation used to purchase the product for
shipment to Europe and ship it elsewhere. ese
shipments eventually reached Iraq and were used to
manufacture mustard gas used to attack the Kurds.
is resulted in the death of thousands of Kurds,
and many others were maimed or suered from
physical and psychological trauma.
While Alcolac pleaded guilty to violating
the Export Administration Act for the sale to the
Germany company, it was not prosecuted for its sales
to the New York company. Plaintis, individuals
of Kurdish descent that were either victims of the
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