War Reparations

• Author: International Law Group

Sabah El Din Ahmed Mohammed Idris (Idris) is a Saudi banker living in Sudan. In 1998, Idris acquired shares in a Sudanese pharmaceutical company, El-Shifa Pharmaceutical Industries Company (hereinafter El-Shifa), located in Khartoum, Sudan. After the August 7, 1998, attacks on U.S. embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania, by terrorists, U.S. President Clinton ordered U.S. forces to conduct military strikes in Afghanistan and Sudan to disrupt the terrorist network of Osama bin Ladin. The targets included El-Shifa that was allegedly producing an ingredient for nerve gas.

El-Shifa and Idris sought $50 million in damages in the U.S. Court of Federal Claims, arguing that the destruction of the factory constituted a taking of private property for public use within the meaning of the Fifth Amendment to the U.S. Constitution. The Court of Federal Claims entered judgment in favor of the United States, and this appeal resulted. The U.S. Court of Appeals for the Federal Circuit affirms.

The Court first reviews the Government's three original arguments for dismissal of the complaint. First, the Government argued that the Takings Clause does not apply to property owned by non-resident aliens outside the U.S. This claim, however, presents a non justiciable "political question." The Court disagrees. Second, the Court sees no merit in the Government's argument that the Court of Federal Claims lacked jurisdiction because this is a tort action alleging that the U.S. President acted negligently in ordering the destruction of the factory. Instead, the Court reads the complaint as alleging a taking. The claim of possible tortious acts by the U.S. does not deprive the Court of jurisdiction.

Third, the Government contended that 28 U.S.C. Section 2502 (the Reciprocity Act) requires plaintiffs in the Court of Federal Claims to show that their home country treats their own nationals and U.S. citizens equally when they bring claims against that government. According to the Government, that is not the case in Sudan. The Court of Federal Claims had heard evidence that U.S. citizens are on equal terms with Sudanese citizens in actions against the Sudanese Government. The fact that, in 1999, the Sudanese government had suspended a clause of the Sudanese Constitution guaranteeing "all people" equal access to the courts does not change this fact.

The Court then turns to the Government's new argument that the Takings Clause does not reach the type of...