The doctrine of ‘sovereign immunity’ is being used
to insulate state violence from legal liability
Azeezah Kanji / AL Jazeera
(April2, 2022) — What better illustration of the perversities of “justice” under colonial modernity, than the grotesquely disparate treatment of Afghanistan versus the Vatican when it comes to exacting recompense for international crimes.
Afghanistan is being further immiserated by its former US occupier in the name of compensating 9/11 victims; while the Vatican, enriched by colonial plunder, continues to evade paying reparations for centuries of anti-Indigenous genocide underwritten by papal edicts like the Doctrine of Discovery (PDF).
Afghanistan has had $3.5bn of its foreign reserves “protected” i.e. commandeered by the US for 9/11 payments, as Afghans starve by the millions; the Vatican’s atonement has been limited to prayers and an apology — issued earlier this month after years of Indigenous advocacy — for the involvement of “a number of Catholics” in Canada’s church-run residential “schools”, where tens of thousands of Indigenous children were sent to forced labour, torture, indoctrination, and death. (Similar institutions also operated in the US.)
US courts have ordered billions of dollars in damages against the Taliban for 9/11 — the “debt” for which the Afghan people are being collectively punished and impoverished to pay. The Vatican, in contrast, remains sheltered from lawsuits in foreign states by the doctrine of “sovereign immunity”: the aegis under which state violence is insulated from legal liability.
Although the American and Canadian legal systems have carved out “terrorism” exceptions to sovereign immunity, these have been applied exclusively against select Muslim countries and other designated official enemies, not to the terror inflicted by the colonial state itself.
For example, under the US’s “terrorism” exception, states may be stripped of their sovereign immunity and sued for “extrajudicial killing” and “torture” — but only if named on the US government’s blacklist of “state sponsors of terrorism”. Meanwhile, the US’s own self-granted global prerogative to extrajudicially kill and torture en masse is enshrined behind walls of legalised impunity.
In earlier colonial eras, it was the “Barbarian/Savage” (one might say BS) label that was used to mark those excluded from sovereign status, and therefore subject to sovereign violence virtually without restraint. Today, it is the “Terrorist”. “Terrorism” is the new BS.
Under this regime of inverted accountability, Sudan was made to pay $335m to the US last year as restitution for “terrorism”, in exchange for being removed from the “terrorist” states list.
Conversely, efforts to seek legal redress for US aggression against Sudan — such as the annihilation of the al-Shifa pharmaceutical factory, which produced 50-60 percent of the country’s medicines, and was mistakenly tarred and targeted as an al-Qaeda plant — have been dismissed by US courts for raising impermissible “political questions”.
Now, Sudan is facing a multibillion-dollar lawsuit attempting to hold it responsible for 9/11, in which the al-Shifa factory is astonishingly cited not as a casualty of US incursions against Sudan, but as supposed evidence of Sudan’s alleged “incubation” of al-Qaeda.
In previous US judgements, similar paucities of proof and logic have been no impediment — for instance, in holding Sudan liable for $5.9 billion for al-Qaeda’s 1998 bombings of US embassies in East Africa. This is despite the judge’s admission that “nothing suggests that Sudan specifically knew of or intended to cause the bombings” and that “the plaintiffs’ allegations are somewhat imprecise as to the causal connection [of Sudan’s actions] with the terrorist act.”
Libya, likewise, was required to pay $1.5 billion into a fund for American victims of “terrorist” acts, such as the 1988 Lockerbie plane explosion. On the other hand, a lawsuit brought by 55 civilian victims of the US’s bombardment of Libya — which preceded the Lockerbie attack — was thrown out by a US court as not simply “frivolous” but “audacious”.
Apparently, the “audacity of hope” is a privilege reserved for the US presidents who command bombings, not the populations who experience them.
The US has not only failed to pay reparations to Iraq for its illegal 2003 invasion and occupation, but on the contrary, extracted $400 million from Iraq to “ensure compensation for any meritorious claims [by US nationals] based on terrorist acts committed by the Saddam Hussein regime”.
This is on top of the $633 million in “reparations” that Iraq was made to pay to US corporations — including occupation profiteers such as Halliburton and Bechtel — by the UN Compensation Commission, as part of Iraq’s recently-completed settlement for the First Gulf War.
As for the Iraqi victims of US military acts of terror — prolific drone and checkpoint killings, widespread radiation poisoning, home and vital infrastructure bombings — far from being “ensured compensation”, they have been actively denied and ruthlessly suppressed.
Even cases involving the most egregious and acknowledged practices of abuse — for example, Iraqi and Afghan detainees who were beaten, stabbed, burned, starved, electrocuted, mock executed, locked naked in phone-booth-sized boxes for days, assaulted with lions and military dogs, hooded, hung chained from the ceiling, sexually tortured, and raped at Abu Ghraib and other US-run prison camps — have been rejected by US courts.
Judges have ruled that the perpetrators are shielded as state officials by immunity, and that the US Constitution’s prohibition against “cruel and unusual punishment” only covers those who have been convicted of a crime — not those, like the Iraqi and Afghan detainees, incarcerated and tormented without any façade of a legal process at all.
In contrast, a lawsuit claiming millions of dollars against Iraq for “material support” for 9/11 — under the “terrorism” exception to sovereign immunity — was permitted to succeed. The minor detail that the plaintiff’s complaint contained “few actual facts of any material support that Iraq actually provided”, as the judge in the case conceded, was no bar. No proof? No problem.
This is the same operating principle under which US courts have also awarded billions of dollars in 9/11 damages against Iran, on the strength of the testimony of “expert” witnesses such as Islamophobic conspiracy-theories-peddler Claire Lopez, and Patrick Clawson, the court-described “foremost expert on all matters pertaining to Iran” who has advocated false-flag operations against Iran to provoke a war.
In American court decisions, Iran is accused of trying to “break the backbone of the American economy”, as the US devastates the Iranian and various other economies by imposing suffocating sanctions — described by UN Special Rapporteurs as a form of “economic warfare” — largely without check.
Peoples denied sovereignty under occupation, like the Palestinians, are sued in US courts for “terrorism”; while the tortures and massacres of their occupiers are precluded from accountability, swathed in the sovereign immunity cloak. (Although Palestine and the Vatican have the same status as observer states at the UN, the Vatican is granted sovereign immunity in the US, but Palestine is not.)
Muslims and other “state sponsors of terrorism” are indicted for targeting US soldiers, while the US’s own killings of civilians in Afghanistan, Yemen, and elsewhere are perpetually written off — pushed under the carpet as “collateral damage”, paid off with paltry “condolence” sums, or pinned on Muslim “terrorists” for leaving children and the elderly in the way of US bombs.
Echoing many centuries of colonial reasoning, “their” violence is attributed to their “barbarism”, while “our” (greater) violence is blamed on their “barbarism” as well.
“It is essentially the character of the barbarian (or, for that matter, of the terrorist) and not his deed that is regarded with horror,” as the eminent critical scholar of anthropology Talal Asad observed. “The characterizations [commonly used to describe “terrorists”] apply also to state forces waging war, whether ‘just’ or ‘unjust’.
The main difference is that states can and do carry out far more destruction than terrorists”: almost one million killed directly, many times more killed indirectly, and 38 million displaced in the last 20 years from the “war on terror” alone.
The violence protected under sovereign immunity — war, torture, genocide — testifies to the violence embedded in the concept of sovereignty itself: rooted in centuries-old European doctrines developed to sanctify the colonial dispossession and enslavement of those deemed “unsovereign” and “uncivilised”.
In American law, the foundational jurisprudence on sovereign immunity was decided by the same jurist, revered 19th-century Supreme Court Chief Justice John Marshall, who also declared Indigenous nations naturally subjugated to the “superior genius of Europe” and upheld the international legality of the transatlantic slave trade.
Then, as now, the sovereign privileges accorded to some have been predicated on the domination of others: the enslaved, invaded, and colonised who have not only been subjected to “civilised” brutality without recompense, but forced to pay “reparations” themselves for the offence of resisting their oppression — from the Haitians penalised for their self-emancipation, to the Indigenous nations ordered to compensate oil corporations depredating their waters and lands.
Instead of pursuing colonial sovereignty’s promise of power-through-domination-and-terrorisation, can we remember, imagine, and inscribe other possibilities for organising our relationships with each other and the world?
As the great philosopher of decolonization, Frantz Fanon urged; “Let us not pay tribute to Europe by creating states, institutions and societies which draw their inspiration from her … If we want humanity to advance a step farther, if we want to bring it up to a different level than that which Europe has shown it, then we must invent and we must make discoveries.”
This is what genuine reparation — to make those who have been wronged whole again — would entail: not a return to the previous status quo, but its radical transformation towards justice and peace.
Azeezah Kanji is a legal academic and writer based in Toronto. The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial stance.
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