CONSIDERING CHALLENGES TO DEFAULT JUDGMENTS HOLDING SUDAN LIABLE FOR THE INJURIES SUFFERED BY VICTIMS OF THE 1998 AL QAEDA EMBASSY BOMBINGS IN KENYA AND TANZANIA, DISTRICT OF COLUMBIA CIRCUIT INTERPRETS FSIA TERRORISM EXCEPTION

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Date: October-December 2017
From: International Law Update(Vol. 23, Issue 4)
Publisher: American Bar Association
Document Type: Article
Length: 7,177 words
Lexile Measure: 1400L

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The following long and detailed opinion of the U.S. Court of Appeals for the District of Columbia Circuit considers Sudan's challenges to default judgments holding it liable for terrorist acts of al Qaeda. After its review, the Court (1) affirms the district court's findings of jurisdiction; (2) affirms the district court's denial of vacatur; (3) vacates all awards of punitive damages; and (4) certifies a question of state law to the District of Columbia Court of Appeals: "whether a plaintiff must be present at the scene of a terrorist bombing in order to recover for IIED."

On August 7, 1998 truck bombs exploded outside the United States embassies in Nairobi, Kenya and in Dar es Salaam, Tanzania. The explosions killed more than 200 people and injured more than a thousand. Many of the victims of the attacks were U.S. citizens, government employees, or contractors. Starting in 2001 victims of the bombings began to bring suits against the Republic of Sudan and the Islamic Republic of Iran, alleging that Sudan, its Ministry of the Interior, Iran, and its Ministry of Information and Security materially supported al Qaeda during the 1990s. From 1991 to 1996, al Qaeda and its leader, Usama bin Laden, maintained a base of operations in Sudan. During this time, al Qaeda developed the terrorist cells in Kenya and Tanzania that would later launch the embassy attacks. Specifically, the plaintiffs contended Sudan provided a safe harbor to al Qaeda and that Iran, through its proxy Hezbollah, trained al Qaeda militants. In bringing these cases, the plaintiffs relied upon a provision in the Foreign Sovereign Immunity Act (FSIA) that withdraws sovereign immunity and grants courts jurisdiction to hear suits against foreign states designated as sponsors of terrorism. 28 U.S.C. [section] 1605(a)(7).

When first enacted, the FSIA generally codified the "restrictive theory" of sovereign immunity, which had governed sovereign immunity determinations since 1952. None of the original exceptions in the FSIA created a substantive cause of action against a foreign state. Rather, the FSIA provided "the foreign state shall be liable in the same manner and to the same extent as a private individual under like circumstances" except that it prohibited the award of punitive damages against a sovereign.

Until 1996, the FSIA provided no relief for victims of a terrorist attack. This changed with the passage of the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996, Pub. L. No. 104132, 110 Stat. 1214, which added a new exception to the FSIA. The AEDPA also set a filing deadline for suits brought under the new exception at ten years from the date upon which a plaintiff's claim arose. 28 U.S.C. [section] 1605(f). Initially, there was some confusion about whether the new exception created a cause of action against foreign sovereigns. In Cicippio-Puleo v. Islamic Republic of Iran, the court had rejected this approach, holding that "neither 28 U.S.C. [section] 1605(a)(7) nor the Flatow Amendment, nor the two considered in tandem, creates a private right of action against a foreign government."...

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Gale Document Number: GALE|A574852006