Sovereign Immunity

• Author: International Law Group

Two American citizens brought an action against Libya under the Foreign Sovereign Immunities Act (FSIA) [28 U.S.C. Sections 1330, 1602-1611] alleging that Libya held them hostage and tortured them.

A recent amendment to the FSIA deprives foreign states that commit torture, hostage taking and other wrongs, of their sovereign immunity in U.S. courts. See 28 U.S.C. Section 1605(a)(7).

The plaintiffs, Michael Price and Roger Frey, were living and working in Libya. Authorities arrested them in March 1980 after they had taken photographs in and around the capital of Tripoli.

Plaintiffs claim that the government kept them in a "political prison" for 105 days under deplorable conditions such as urine- soaked mattresses, a cramped cell shared with seven other inmates, and inadequate food. In addition, prison guards allegedly "kicked, clubbed and beat" plaintiffs. Eventually the Libyan courts acquitted plaintiffs of any charges and released them. They sued Libya in 1997, each seeking $20 million in damages.

Libya moved to dismiss the case, claiming sovereign immunity and lack of personal jurisdiction. The district court denied the motion, and Libya brought this interlocutory appeal. The U.S. Court of Appeals for the D.C. Circuit reverses the district court's denial of Libya's motion to dismiss the hostage taking claim, and remands to provide the plaintiffs with an opportunity to amend their complaint as to the torture claim.

As a preliminary matter, the Court first points out that this opinion does not address the issue of whether the plaintiffs actually have a cause of action against Libya. "The parties appear to assume that a substantive claim against Libya arises under FSIA, but this is far from clear. The FSIA is undoubtedly a jurisdictional statute which, in specified cases, eliminates foreign sovereign immunity and opens the door to subject matter jurisdiction in the federal courts. [Cite] There is a question, however, whether the FSIA creates a federal cause of action for torture and hostage taking against foreign states."

"The 'Flatow Amendment' to the FSIA confers a right of action for torture and hostage taking against an 'official, employee, or agent of a foreign state,' codified at 28 U.S.C. Section 1605 (note) [Cite], but the amendment does not list 'foreign states' among the parties against whom such an action may be brought. While it is possible that such an action could be brought under the 'international terrorism' statute, 18 U.S.C...