Sovereign Immunity

Author:International Law Group

Page 215

In February 1987, a Mediterranean storm drove the private yacht carrying Sandra JeanPage 216 Simpson (Plaintiff) and her husband, Dr. Mostafa Karim, offcourse. Eventually, it docked in the Libyan port of Benghazi. Libyan oficers boarded and arrested the passengers and crew. The Libyans released Simpson after three months. They held her husband, however, seven more months under grim conditions. He died of cancer in 1993.

Plaintiffsued Libya, alleging, inter alia, torture, hostage-taking, and battery. Libya moved to dismiss (1) for lack of subject-matter and (2) personal jurisdiction, and (3) for failure to state a claim for torture and hostage-taking on which relief may be granted. The district court denied the motions.

On appeal, the District of Columbia Circuit remands the case so that the Plaintiffcould amend her complaint to state a cause of action for hostage taking under the 1996 Terrorism Amendment to the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. ß 1605(a)(7) (Terrorism Amendment).

Libya moved to dismiss the amended complaint on grounds of sovereign immunity. The district court denied the motion. In this interlocutory appeal, Libya challenged Plaintiff's hostage-taking claim because she failed to show the essential "intended purpose."

The U.S. Court of Appeals for the District of Columbia Circuit holds that the FSIA defi nition of hostage-taking in ß 1605(e)(2) focuses solely on the state of mind of the hostage taker. Thus, an FSIA plaintiffdoes not have to show that the hostage taker communicated a demand to a third party that refl ected the hostage taker's intended purpose. The Court therefore afirms the denial of Libya's motion to dismiss based on sovereign immunity, and remands for further proceedings.

Congress added the Terrorism Exception to the FSIA in 1996. through the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214-1241-42. It removes sovereign immunity where "money damages are sought against a foreign state for personal injury or death that was caused by an act of ... hostage taking ..." 28 U.S.C. ß 1605(e)(2). Article I of the 1985 International Convention Against the Taking of Hostages, T.I.A.S. 11081 (ICATH) defi nes what constitutes hostage taking. It requires a "quid pro quo" arrangement whereby the hostage is released upon the performance or non-performance of an action.

In addition, for the hostage-taking exception to apply, a Plaintiffhas to satisfy three...

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