Sovereign Immunity

• Author: International Law Group

In 1986, Hizbollah, the Islamic terrorist organization, abducted Joseph Cicippio, then the comptroller of the American University in Beirut. Iran allegedly supports Hizbollah's activities. His captors held Mr. Cicippio under inhumane conditions until his release in 1991. He brought an action against Iran under the "terrorism exception" of the Foreign Sovereign Immunities Act (FSIA) [28 U.S.C. Sections 1330, 1602-1611 (2000)], Section 1605(a)(7), and the Flatow Amendment, Section 1605 note. Iran failed to respond. In August 1998, the U.S. District Court for the District of Columbia entered a $30 million default judgment against Iran in favor of Mr. and Mrs. Cicippio. [See Cicippio v. Islamic Republic of Iran, 18 F.Supp. 2d 62 (D.D.C. 1998).]

Mr. Cicippio's seven children and seven siblings (plaintiffs) sued Iran In 2001 for intentionally inflicting the emotional distress and the loss of consortium which they suffered as a result of Mr. Cicippio's lengthy captivity. Their action rested on FSIA Section 1605(a)(7) and the Flatow Amendment. Again, Iran failed to answer the complaint. The district court, however, dismissed the case sua sponte because the FSIA does not confer subject matter jurisdiction for claims of emotional distress and solatium under these circumstances. Plaintiffs noted their appeal. The U.S. Court of Appeals for the District of Columbia Circuit affirms and remands.

The Court points out that a foreign state is immune from the jurisdiction of U.S. courts except as provided in FSIA Sections 1605 and 1607 of the FSIA. As part of the comprehensive Antiterrorism and Effective Death Penalty Act (AEDPA) [Pub.L. 104- 132, Apr. 24, 1996, 110 Stat. 1214], Congress amended the FSIA to add the so-called "terrorism exception." It lifts the immunity of a foreign state and its agents in a case "in which money damages are sought against a foreign state for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources ... for such an act if such act or provision of material support is engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or agency." 28 U.S.C. Section 1605(a)(7).

The new exception applies, however, only to a foreign state that the U.S. Department of State has designated as a "state sponsor of terrorism." 28 U.S.C. Section 1605(a)(7)(A). In...