S. Hrg. 103-1077
vJ THE FOREIGN SOVEREIGN
y 4. J 89/2; S. HRG. 103-1077
The Foreign Sovereign Innunities Ac... a -pyn^p
COURTS AND ADMIXISTRATR^ PRACTICE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED THIRD CONGRESS
A BILL TO AMEND TITLE 28 OF THE UNITED STATES CODE TO PERMIT
A FOREIGN STATE TO BE SUBJECT TO THE JURISDICTION OF FED-
ERAL OR STATE COURTS IN ANY CASE INVOLVING AN ACT OF INTER-
JUNE 21, 1994
Serial No. J-103-62
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
22-729 CC WASHINGTON : 1996
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
VVJ THE FOREIGN SOVEREIGN
IMMU NITIES ACT
Y 4. J 89/2; S.HRG, 103-1077
Tfce Foreign Sovereifn Innunities ftc. . . a -pj-^jp
COURTS AND ADMINISTRATIVE PRACTICE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED THIRD CONGRESS
A BILL TO AMEND TITLE 28 OF THE UNITED STATES CODE TO PERMIT
A FOREIGN STATE TO BE SUBJECT TO THE JURISDICTION OF FED-
ERAL OR STATE COURTS IN ANY CASE INVOLVING AN ACT OF INTER-
JUNE 21, 1994
Serial No. J-103-62
Printed for the use of the Committee on the Judiciary
/ -^ ■:> -. -
U.S. GOVERNMENT PRINTING OFFICE
22-729 CC WASHINGTON : 1996
For sale by the U.S. Government Printing Office
Superintendent of Documents. Congressional Sales Office. Washington. DC 20402
COMMITTEE ON THE JUDICIARY
JOSEPH R. BIDEN, Jr., Delaware, Chairman
EDWARD M. KENNEDY, Massachusetts ORRIN G. HATCH, Utah
HOWARD M. METZENBAUM, Ohio STROM THURMOND, South Carolina
DENNIS DeCONCINI, Arizona ALAN K. SIMPSON, Wyoming
PATRICK J. LEAHY, Vermont CHARLES E. GRASSLEY, Iowa
HOWELL HEFLIN, Alabama ARLEN SPECTER, Pennsylvania
PAUL SIMON, IlUnois HANK BROWN, Colorado
HERBERT KOHL, Wisconsin WILLIAM S. COHEN, Maine
DIANNE FEINSTEIN, CaUfomia LARRY PRESSLER, South Dakota
CAROL MOSELEY-BRAUN, IlUnois
Cynthia C. Hogan, Chief Counsel
Catherine M. Russell, Staff Director
Mark R. Disler, Minority Staff Director
Sharon Prost, Minority Chief Counsel
Subcommittee on Courts and Administrative Practice
HOWELL HEFLIN, Alabama, Chairman
HOWARD M. METZENBAUM, Ohio CHARLES E. GRASSLEY, Iowa
HERBERT KOHL, Wisconsin STROM THURMOND, South Carolina
CAROL MOSELEY-BRAUN, IlUnois WILLIAM S. COHEN, Maine
Winston Lett, Chief Counsel
Darrin Foster, Minority Chief Counsel
STATEMENTS OF COMMITTEE MEMBERS
Heflin, Hon. Howell, U.S. Senator from the State of Alabama 1
Grassley, Hon. Charles E., U.S. Senator from the State of Iowa 18
Specter, Hon. Arlen, U.S. Senator from the State of Pennsylvania 21
Thurmond, Hon. Strom, U.S. Senator from the State of South Carolina 86
S. 825, a bill to amend title 28 of the United States Code to permit a
foreign state to be subject to the jvuisdiction of Federal or State courts
in any case involving an act of international terrorism 26
CHRONOLOGICAL LIST OF WITNESSES
Panel consisting of Stuart Schiffer, Deputy Assistant Attorney General, civil
division, U.S. Department of Justice; and Jamison S. Borek, deputy legal
adviser, Department of State 8
Panel consisting of Hugo Prinz, former hostage; Hon. Frank Pallone, a Rep-
resentative in Congress from the State of New Jersey; David P. Jacobsen,
former hostage; Joseph Cicippio, former hostage; CUnton A. Hall, former
hostage; and Abraham D. Sofaer, Hughes, Hubbard and Reed 31
ALPHABETICAL LIST AND MATERIAL SUBMITTED
Borek, Jamison S.:
Prepared statement 12
Prepared statement 69
HaU, CUnton A.:
Prepared statement 77
Jacobsen, David P.:
Various letters 61
USA Today, "ANighrwithTortiired'Thoughts,^ Friday, Aug.
11, 1989 64
USA Today, "Wake up! International Terrorism Is Here,"
Wednesday, Jul. 7, 1993, 66
Mazzoli, Representative Romano L.:
Prepared statement 5
Pallone, Representative Frank: Testimony 55
Various letters concerning the Prinz case 40
Schiffer, Stuart — Continued
Prepared statement 9
Sofaer, Abrsiham D.:
Prepared statement 82
Questions and Answers
Questions of the Subcommittee on Courts and Administrative Practice for:
Jamison Borek 89
Abraham D. Sofaer 89
Questions of Senator Strom Thurmond for the U.S. Department of Justice 90
Additional Submissions for the Record
Prepared statement of Allan Gerson, Prof of International Law and Trans-
actions, the George Mason University:
Letter to Senator Howell Heflin from Allan Gerson 92
Various articles — Attachment A.I., Attachment A.2., Attachment A.3.,
and Attachment A.4 98
Attachment B — Remarks of Allan Gerson delivered at the 88th annual
meeting of the American Society of International Law, Washington,
DC, Apr. 8, 1994 102
Attachment C — International Law Reporter, Vol. 9, Issue 9, Sep. 1993 108
THE FOREIGN SOVEREIGN IMMUNITIES ACT
TUESDAY, JUNE 21, 1994
Committee on the Judiciary,
Subcommittee on Courts and Administrative Practice,
The subcommittee met, pursuant to notice, at 10:09 a.m. in room
SD-226, Dirksen Senate Office Building, Hon. Howell Heflin
(chairman of the subcommittee), presiding.
Present: Senators Grassley, and Specter (ex officio).
OPENING STATEMENT OF HON. HOWELL HEFLIN, A U.S.
SENATOR FROM THE STATE OF ALABAMA
Senator Heflin. The hearing will come to order. This hearing
has been called as a forum by which representatives from the U.S.
Government, as well as U.S. citizens, can discuss the current state
of law regarding jurisdictional immunities of foreign States.
I understand the sensitive nature of any change in this law due
to the effect that it may have on international policies of this or
any other administration. Nevertheless, it cannot be ignored that
acts of terrorism have been inflicted upon U.S. citizens by agents
of governments in foreign countries in increasing number and se-
The dramatic changes in the world today and the globalization
of our economy should be taken into account as we consider modi-
fications which can influence international laws. With the end of
the cold war in Europe and emerging Third World countries, there
have materialized many new alliances and political extremists
which may affect the safety and security of U.S. citizens who par-
ticipate in the growing world markets abroad.
This emergence of political extremists is not only visible in the
more volatile regions of the world, but also within our own borders,
as witnessed by the bombing of the World Trade Center in New
York. Several of the witnesses who will testify today have survived
some of the most psychologically and physically painful ordeals
that one can imagine. These outrageous events were supported by
governments which flagrantly disregarded international laws and
basic human rights.
Unfortunately, the victims have very few legal remedies avail-
able to them. Presently, Federal law does not permit a U.S. citizen
to pursue a civil action against a foreign government in a State or
Federal court in the United States in cases in which torture or
other egregious violations of human rights have occurred outside
the United States.
The Foreign Sovereignty Immunities Act only allows claims to be
decided by Federal and State courts for actions which arise outside
the United States in the form of commercial disputes. The bill in-
troduced by Senator Specter would expand exceptions in the
present act. It would enable a U.S. citizen or permanent resident
to pursue cases which involve terrorist actions against them which
are violent to human life and violate the criminal laws of the Unit-
Senator Specter has introduced a bill in the Senate which ad-
dresses the issue of foreign immunity and terrorist actions. First,
this legislation would permit a foreign State to be subject to the ju-
risdiction of Federal or State courts for acts which occur outside
the United States. It would create a new exception to jurisdictional
immunity in cases which involve an act of international terrorism
by a foreign State linked to that specific act. Also, the country
which is linked to the terrorist act must be designated by the Sec-
retary of State as a country which supports terrorism.
This legislation would expand the present jurisdiction of courts.
Therefore, it falls within the purview of the Subcommittee on
Courts and Administrative Practice. I acknowledge that in the past
it has been almost exclusively the executive branch, through the
State Department which has the responsibility to pursue remedies
for kidnap and torture victims through diplomatic channels. But
with the passage by the Congress of the Torture Victim Protection
Act last year, more jurisdiction has been granted to the judicial
branch to allow victims due process through our courts.
It is with this idea in mind that we focus our attention on today's
hearing. I look forward to your sharing with me and my colleagues
your expertise and your own experiences. I thank all of the wit-
nesses for taking the time to be with us here today and for their
At this time, Congressman Mazzoli, if you will come forward?
Congressman Mazzoli is a Representative from Kentucky in the
U.S. House of Representatives. We are glad to have you. Congress-
STATEMENT OF THE HON. ROMANO L. MAZZOLI, A REP-
RESENTATIVE IN CONGRESS FROM THE STATE OF KEN-
Representative Mazzoli. Thank you very much. Senator Heflin.
I appreciate the opportunity to join you and I would ask that my
full statement be made a part of the record.
Senator Heflin. It will be so made.
Representative Mazzoli. Mr. Chairman, I wish to commend you
for holding this hearing on S. 825, which is Senator Specter's bill
to amend the Foreign Sovereign Immunities Act, and also to com-
mend Senator Specter, though he is not yet here today, for his ex-
cellent work on this subject.
The Senator and I are both interested in amending the Foreign
Sovereign Immunities Act in slightly different ways, but the es-
sence is to provide U.S. citizens who have been subjected to griev-
ous physical abuse, whether, as in Senator Specter's bill, by acts
of terrorism, or in the House version which I have more or less au-
thored, by torture, extrajudicial killing or genocide, sponsored by
officers of a foreign government, an opportunity to obtain remedy
for these injuries.
Unfortunately, Mr. Chairman, there are still too many countries
which engage in gross violations of human rights — once again, tor-
ture, kilUng, terrorism. In recent years, several U.S. citizens have
been victimized abroad by agents of foreign governments engaged
in these kinds of practices.
Often, Senator Heflin, judicial remedies are not available in the
country where the harm occurs. Unlike our own legal system which
is characterized by due process, right to counsel, an independent
judiciary, and respect for human and civil rights, many countries
have legal systems which do not provide these protections to their
own citizens, and certainly not to visitors from other countries.
U.S. citizens who are physically abused by a foreign government
can, of course, attempt to enlist the help of the U.S. State Depart-
ment in pursuing remedies through diplomatic channels. Often,
citizens have their injuries and grievances redressed with assist-
ance from the State Department, but because the State Depart-
ment must often execute foreign policy with the very governments
and the very people who are accused of mistreating our citizens,
the State Department often cannot effectively protect and enforce
the rights of these citizens.
Simply stated, its stance is compromised because of foreign policy
considerations in too many instances. At least in one case, the
State Department actually sided with a foreign sovereign against
an aggrieved U.S. citizen, and that is a case recently decided by the
U.S. Supreme Court which overturned an eleventh circuit court of
appeals decision involving the Kingdom of Saudi Arabia.
Our constituents should not have to be treated like pawns in
some larger game of global diplomacy. Our constituents who have
been injured by a foreign government should have their grievances
heard in a court which offers them suitable protections rather than
having to rely upon diplomatic efforts mounted by the executive
branch of our Government.
Senator in fact, this is the original reason for the FSIA which
was passed back in 1976, and that is to have the courts, not the
executive branch, determine whether or not a foreign sovereign
should be entitled to immunity from suit in the United States. The
Foreign Sovereign Immunities Act currently allows U.S. citizens to
sue foreign governments for commercial disputes that arise outside
the United States, but it does not allow suits for physical violence,
such as torture or murder or, in the case of Senator Specter's bill,
terrorism which occurs abroad.
If we allow a businessman or woman to bring suit under the
FSIA against a foreign government which has breached a contract,
it seems logical that we should allow a citizen who was tortured
or otherwise physically mistreated by the very self same govern-
ment to bring suit under the act.
I do not believe that the United States has the right to impose
all of its domestic laws and constitutional rights on the rest of the
world. However, if a Nation violates international law by torturing
or murdering a U.S. citizen, that Nation has an obligation under
international law to provide a remedy, and if the Nation fails to
provide such a remedy, the U.S. citizen should be entitled to bring
suit against the foreign government in a U.S. court.
This, of course, is the driving principle behind the House bill,
H.R. 934, which was approved by the subcommittee I am privileged
to chair, the House Subcommittee on International Law, Immigra-
tion and Refugees, and that approval came in September of 1993.
A bill, I might say, Senator, virtually identical to this bill was
adopted by the full committee in the previous Congress, but it did
not reach the House floor.
Our bill, H.R. 934, will ensure that a U.S. citizen who has been
tortured or murdered abroad by agents of a foreign government
will have a remedy against the foreign government for damages ei-
ther in the country where the conduct occurred or here in the U.S.
H.R. 934 would add a new exception to the FSIA which would
allow U.S. citizens who' are subjected to torture, extrajudicial kill-
ing, summary execution, as it is called, or genocide abroad by a for-
eign sovereign to bring suit against the foreign sovereign, but only
if the citizen is denied adequate remedies in the country where the
conduct occurred. In effect, we have an exhaustion of remedies pro-
The bill is limited to causes of action for torture, extrajudicial
killing, and genocide, all of which are violations of international
law. Therefore, under H.R. 934, we will not be imposing our own
law on other countries, but will simply be providing a forum to re-
dress an internationally-recognized wrong.
I applaud Senator Specter for his work on S. 825, the bill before
you. Senator Heflin. His bill differs from ours in that it focuses
more on terrorism, where ours is somewhat broader in the nature
of the grievances to the U.S. citizens. But he and I are of a mind
that some action needs to be taken where citizens come into legal
collision with foreign sovereigns.
I would certainly be open to examining whether it might be pos-
sible to include acts of terrorism in our bill. Senator Specter's bill
allows suits only against countries, and you said this earlier, Mr.
Chairman, which are on the State Department's terrorism list.
That seems to be somewhat limited because it seems to me once
again that to allow the executive branch of Government to make
the decision of which countries would be subject to the foreign sov-
ereign immunity sort of flies in the face of the FSIA and its under-
lying premise, which is to allow the courts to make the decision of
which countries could be subject to these suits.
However, I am confident that our differences, such as they are
and minor as they are, can be worked out, and I look forward to
cooperating with Senator Specter and you, Mr. Chairman, and all
members of your distinguished subcommittee to see foreign sov-
ereign immunities legislation enacted into law this Congress.
Governmental torture and killing will not go away. Abuse of our
citizens could probably increase, rather than decrease, as our econ-
omy becomes more globalized and increasing number of our citizens
have contact with foreign governments. The United States is a
leading Nation in the world and now it is time for the United
States to demonstrate that international law indeed means some-
thing and that the right of our citizens to be free from government-
sponsored torture and killing will be enforced.
Again, Senator, I thank you very much for the opportunity and
commend you for having the hearing and wish you good fortune on
adopting some form of legislation.
Senator Heflin. Congressman, a later witness, Mr. Hugo Princz,
will testify. I understand that he and his family were American
citizens residing in Europe during World War II. In 1942, the
Nazis arrested him, ignoring his and his families' valid U.S. pass-
ports, which would have made them part of an International Red
Cross civilian prisoner exchange then underway on the grounds
that they were Jewish Americans. Instead, they deported them to
concentration camps where they were all exterminated, except for
Mr. Princz. He was liberated in 1945 bv U.S. Army personnel, who
recognized him as an American by the 'USA" that was stenciled on
his camp garb by the German authorities.
He has undertaken, as I understand it, a number of efforts to try
to be able to get remedies through the German courts, but because
of the language of the German courts he was a rare exception and
therefore could not come under their criteria.
Your bill would, in effect, remedy his situation and would give
him a cause of action, as well as any others who were American
citizens who were subject to that type of treatment.
Representative Mazzoli. I would have to check with the staff,
Mr. Chairman, but I think there is a statute of limitations in our
bill that could apply in Mr. Princz' case. Of course, he suffered
quite grievously, to say the least, and our hearts go out to the suf-
fering that he has had, and his whole family.
It would seem to me that we do need to be somewhat cautious
in framing a bill to make sure that we don't open gigantic chapters
of world history again. Again, I believe that our bill does have a
10-year statute of limitations which possibly could bar Mr. Princz
from pursuing his claim.
Senator Heflin. All right, sir. Well, we appreciate your testi-
mony. Senator Specter is being delayed by action on the floor. He
is on the floor right now today, and so I am sure that if he gets
through with his activity there, he will come and participate in this
hearing, since he has pressed me very hard to have this hearing.
Representative Mazzoli. Thank you, Mr. Heflin, and give my
best to Senator Specter.
[The prepared statement of Representative Romano L. Mazzoli
Prepared Statement of Representative Romano L. Mazzoli
Mr. Chairman, I want to commend you for holding this hearing on S. 825, Senator
Specter's bill to amend the Foreign Sovereign Immunities Act, and also want to
commend Senator Specter for his work on this issue.
Senator Specter and I are both interested in amending the Foreign Sovereign Im-
munities Act (FSIA) to provide to U.S. citizens who have been subjected to grievous
physical abuse by officers of a foreign government an opportunity to obtain a rem-
edy for their injuries.
Unfortunately, there are still too many countries which engage in gross violations
of human rights such as torture, extrajudicial killing and genocide. In recent years,
several U.S. citizens have been victimized abroad by agents of foreign governments
engaging in these types of practices.
Often judicial remedies are not available in the country where the harm occurred.
Unlike our own legal system, which is characterized by due process, right to coun-
sel, an independent judiciary, and respect for human and civil rights, many coun-
tries have legal systems which do not provide these protections to tiheir own citizens,
much less to citizens of other countries.
U.S. citizens who are physically abused by a foreign government can, of coiirse,
attempt to enlist the help of the U.S. State Department in pursuing a remedy
through diplomatic channels. Often these citizens have their injuries and grievances
redressed with assistance from State Department intervention.
But, because the State Department must execute foreign poUcy with the very gov-
ernments which are accused of mistreating our citizens, it often cannot effectively
protect and enforce the rights of these citizens. Simply stated, its stance is often
compromised because of foreign policy considerations.
And, remarkably enough, the State Department will even side with the foreign
sovereign against the citizen interest. In one recent case, the State Department filed
a brief before the U.S. Supreme Court asking the Court to overtiun an 11th Circuit
Court of Appeals decision which had allowed a U.S. citizen to sue the Kingdom of
Saudi Arabia for torture-related damages under the FSIA.
Our constituents should not have to be treated like pawns in some larger game
of global diplomacy. Our constituents who have been injured by a foreign govern-
ment should have their grievances heard in a court which offers suitable protections
rather than having to rely upon diplomatic efforts mounted by the executive branch
of our government.
In fact, this was the original reason the FSIA was passed back in 1976 — to have
the courts, and not the executive branch, determine whether or not a foreign sov-
ereign should be entitled to immunity from suit in the United States.
As the House Judiciary Committee's Report to the FSIA states:
A principal purpose of this bill is to transfer the determination of sov-
ereign immunity from the executive branch to the judicial branch, thereby
reducing the foreign poUcy implications of immunity determinations and as-
suring Utigants that these often crucial decisions are made on purely legal
grounds and under procedures that insure due process. The Department of
State would be freed from pressures from foreign governments to recognize
their immunity from suit and from any adverse consequences resulting
fi-om an unwillingness of the Department to support that immunity.
The FSIA currently allows U.S. citizens to sue foreign governments for commer-
cial disputes that arise outside the United States. But it does not allow suits for
Ehysical violence, such as torture or murder, which occurs abroad. If we allow a
usinessman to bring suit under the FSIA against a foreign government which has
breached a contract, why should we prevent a citizen who was tortured or otherwise
physically mistreated by the very same foreign government fi*om bringing suit?
I do not believe that the United States has the right to impose aU of its domestic
laws and constitutional rights on the rest of the world. However, if a nation violates
international law by torturing or murdering a U.S. citizen, that nation has an obli-
gation under international law to provide a remedy. If the nation fails to provide
such a remedy, the U.S. citizen should be entitled to bring suit against the foreign
government in a U.S. court.
This is the driving principal behind my bill, H.R. 934. H.R. 934 was approved by
the House Subcommittee on International Law, Immigration, and Refugees, which
I chair, on September 8, 1993. A bill virtually identical to H.R. 934 was approved
by the House Judiciary Committee last Congress, but never reached the House floor.
H.R. 934 will ensure that a U.S. citizen who has been tortured or murdered
abroad by agents of a foreign government will have a remedy against the foreign
government for damages either in the country where the conduct occurred or here
in the United States.
H.R. 934 would add a new exception to the FSIA which would allow U.S. citizens
who are subjected to torture, summary execution, or genocide abroad by a foreign
sovereign to bring suit against the foreign sovereign, but only if the citizen is denied
adequate remedies in the country where the conduct occurred.
H.R. 934 is narrowly tailored. The bill only applies to persons who were U.S. citi-
zens at the time that tiiey were abused by the foreign government.
The bill is limited to causes of action for torture, extrajudicial killing, and geno-
cide, all of which are violations of international law. Therefore, under H.R. 934 the
U.S. will not be imposing its own law on other countries, but will simply be provid-
ing a forum to redress an internationally-recognized wrong.
The exhaustion of remedies requirement in the bill requires the plaintiff to prove
that there are no adequate and available remedies in the country where the conduct
occurred, or to prove that he or she has exhausted all available remedies, before the
plaintiff can file sviit in the United States. Therefore, if the foreign country provides
an adequate remedy, it will not have to submit to the jurisdiction of U.S. courts.
H.R. 934 is modeled after the Torture Victim Protection Act (TVPA), which was
signed into law last Congress. The TVPA only provided a cause of action against
officials of foreign states — it did not address the liabiUty of the foreign state itself
Many U.S. citizens will not be able to use the TVPA because they will not be able
to obtain personal jurisdiction over their individual torturers.
Like the TVPA, H.R. 934 defines tortvire in accordance with the Convention
against Tortiire. The United States signed the Convention in 1988, the Senate ap-
proved it in 1990, and just recently, April 30, 1994, President Clinton signed into
law the implementing legislation for the Convention. Likewise, extrajudicial killing
is defined in accordance with the TVPA and the Geneva Conventions of 1949.
H.R. 934 contains the same 10 year statute of limitations as the TVPA. Although
the amendments made by the bill will apply to causes of action that arise before
the bill's enactment, causes of action arising before the bill's enactment will still
have to meet the statute of limitations.
At Subcommittee, at the vu-ging of Congressman Chuck Schumer, the bill was
amended to include acts of genocide committed by a foreign sovereign. Although not
part of the TVPA, Genocide is also a grievous violation of international law. Under
the bill, genocide is defined in accordance with the Genocide Convention and the
criminal provisions of U.S. law which implement that Convention. Acts of genocide
are not subject to the 10 year statute of limitations.
Incidently, I think at some point Congress should examine the possibility of har-
monizing some of these various statutes which impose civil and criminal Uability for
various human rights violations. Currently on the books we have the Foreign Sov-
ereign Immunities Act, the Tortiire Victim Protection Act, laws implementing var-
ious treaties such as the Torture and Genocide Convention, as well as several oth-
I think Congress should examine aU of these various laws and consider whether
they could be combined into one single, comprehensive statute. While I will not be
around Capitol Hill to help make this happen, I think it is something that Congress
should seriously pursue.
I applaud Senator Specter for his work on S. 825. Senator Specter's bill differs
from H.R. 934 in that his bill focuses more on terrorism whereas my biU focuses
on torture and extrajudicial killing. But we are of a mind that some action needs
to be taken where citizen come into legal collision with foreign sovereigns. I would
certainly be open to examining whether it might be possible to include acts of terror-
ism committed against U.S. citizens within the framework of my bill.
One provision in Senator Specter's bill that does concern me is the provision
which edlows suits only against countries who are on the State Department's terror-
ism list. For reasons I gave earlier, I think we should let courts, not the executive
branch, make immunity determinations. If we allow the executive branch to make
immunity determinations by placing or taking countries off Usts we will defeat the
original purpose of the FSIA.
However, I am confident our differences can be worked out and I look forward to
working with Senator Specter and you, Mr. Chairman, and all the Members of the
Subcommittee, to see foreign sovereign immunities legislation enacted into law.
Governmental torture and killing will not soon go away. Abuse of our citizens will
probably increase, not decrease, as our economy becomes more globalized and in-
creasing numbers of our citizens have contact with foreign governments.
In the aftermath of the Cold War, the United States is unquestionably the leading
country in the world. Now is the time for the United States to demonstrate that
international law means something and that the right of ovu* citizens to be free from
governmental torture and killing wll actually be enforced.
Chairman Heflin, I want to thank you once again for holding this hearing and
inviting me to testify.
Senator Heflin. Next is a panel of Mr. Stuart Schiffer, who is
Deputy Assistant Attorney General, U.S. Department of Justice,
and Ms. Jamison Borek, who is the deputy legal adviser for the
U.S. Department of State.
Mr. Schiffer, I understand you don't have too much testimony,
but go ahead, sir. , "t.
PANEL CONSISTING OF STUART SCHIFFER, DEPUTY ASSIST-
ANT ATTORNEY GENERAL, CIVIL DIVISION, U.S. DEPART-
MENT OF JUSTICE; AND JAMISON S. BOREK, DEPUTY LEGAL
ADVISER, DEPARTMENT OF STATE
STATEMENT OF STUART SCHIFFER
Mr, SCHIFFER. I won't even have to summarize. It was short
enough, but I will make just a few remarks, if I may.
I want to emphasize at the start that we share fully the values
and the concerns that underlie S. 825. While I don't appear here
in my personal capacity, I think I do have to say that my heart
goes out to the witnesses who are going to appear before you short-
ly who indeed did suffer.
It was in the spirit that we worked with the Congress in 1991
and 1992 on legislation which became law to protect victims of un-
conscionable violence abroad. This legislation created civil remedies
for acts of terrorism and acts of torture. At the same time, I must
note that we concurred in the views of the Department of State,
and ultimately of the Congress, that extension of these civil rem-
edies to the foreign governments themselves in our courts would go
beyond recognized international practice and would have created
substantial foreign relations concerns.
Congress, as I said, excepted from the reach of these civil actions
suits against the foreign governments, as opposed to individuals.
We continue to believe that the State Department is correct in its
view that it would be no less unwise to expand such causes of ac-
tion now to foreign governments.
Again, I emphasize that we are steadfast in our resolve to act
against terrorism. We have shown that, I think, not only in our co-
operation with the Hill, but in prosecutions that have been brought
and continued to be brought in our courts. We simply, if we ques-
tion anything, question the efficacy of the cause of action that this
bill would create. Again, we share in the concerns that my col-
league, Ms. Borek, can address about the foreign relations prob-
lems this remedy might create.
Let me make only two brief points before I conclude and defer
to my colleague. First, the Foreign Sovereign Immunities Act was
indeed very progressive legislation when it was enacted in 1976.
We believe that it remains so today. As Congressman Mazzoli sug-
gested, it replaced what was essentially ad hoc justice where the
courts deferred to State Department determinations with rules of
law that were to be applied by our courts and have been applied
in dozens and dozens of cases since enactment.
The drafters recognize and we continue to recognize that the act
was not intended to create domestic judicial remedies for all inju-
ries which might be suffered by potential plaintiffs. The principal
purpose of the act was to codify the so-called restrictive theory of
sovereign immunity under which foreign Nations would continue to
enjoy immunity for sovereign acts, but would be liable for commer-
cial activities carried out in this country or having significant ef-
fects in this country.
Remedies for tortious conduct really were not at the heart of the
bill. In factj^ the drafters, working with the executive branch, hesi-
tated before Cx'eating any jurisdiction in our courts over torts. When
they did so, they made clear in the legislative history that they had
in mind essentially garden-variety torts, such as automobile acci-
That brings me to my second and final point. It is very important
to keep in mind that no Nation has abroad as much property and
the significant numbers of personnel that we do. As we create new
jurisdiction in our courts, we have to bear in mind that we expose
ourselves to the creation of new remedies which will be used
against us in foreign courts.
I emphasize we obey the rule of law abroad just as we do in this
country. We presently have pending well over 1,000 suits in about
80 countries of every stripe throughout the world, and I simply
think we have to keep in mind that not all foreign countries are
as careful in tailoring legislation as we are. But reciprocity plays
a very strong role in foreign relations, in general, and it specifically
does so in the area of foreign State immunity. Our bill has served
as a model for other governments and I think we have to give at
least some pause before we become too innovative in enacting such
At this point, I will defer to my colleague, Ms. Borek,
[The prepared statement of Stuart Schiffer follows:]
Prepared Statement of Stuart Schiffer
Mr. Chairman and members of the Committee: I am pleased to appear before
you today in response to your request for the views of the Department of Justice
on S. 825, a bill to amend the Foreign Sovereign Immunities Act.
S. 825 would amend the Foreign Sovereign Immunities Act to permit a foreign
state to be subject to the jurisdiction of courts in the United States in suits based
upon an act of international terrorism, committed or aided or abetted by certain for-
eign states, when the suit seeks money damages for personal injury or death to a
United States citizen or permanent resident alien. The bill also permits pre-judg-
ment attachment and execution of foreign state property when a suit is filed and
judgment obtained pursuant to its provisions.
The Department of Justice has been and remains in the forefront in the fight
against international terrorism. We have vigorously prosecuted, and continue to
prosecute, those subjecting our citizens to terrorist acts. We have also worked in
partnership with the Congress in crafting legislation to protect victims against un-
conscionable violence. The provision of civil remedies for acts of terrorism, which
was contained in the Federal Courts Study Committee Act of 1992, codified at 18
U.S.C. §2333 et seq., and the Torture Victim Protection Act of 1991 signal the joint
commitment of Congress and the Executive Branch to provide to our injured citizens
means of legal redress if they are the victims of terrorism or torture.
To the extent that S. 825 would affect the foreign relations interests of the United
States by expanding the jurisdiction of our courts over foreign states, the Depart-
ment of Justice defers to the comments of the State Department on the substance
of the bill. The Foreign Sovereign Immunities Act provides for jurisdiction in suits
against foreign states in which the action is based upon a commercial activity car-
ried on in the United States by the foreign state, or upon an act performed in the
United States in connection with a commercial activity of the foreign state else-
where, or upon an act outside the territory of the Unites States in connection with
a commercial activity of the foreign state elsewhere and that act causes a direct ef-
fect in the United States. Jurisdiction over torts not meeting these conditions exists,
subject to certain exceptions, only when both the tortious act and the injury occur
within the United States. Jurisdiction over suits alleging acts of dehberate govern-
ment wrongdoing would have political significance and consequences with foreign
policy ramifications which are best addressed by the Department of State.
In evaluating S. 825, we note the risk of reciprocal treatment by foreign states
if we expand our jurisdiction over them. While the current bill is carefully limited
to terrorist acts, we could not be confident that legislation enacted by other states
would be as carefully and finely drawn. If other states were to expand the jurisdic-
tion of their own courts, they might sweep more broadly into areas which we con-
sider to be properly immune from their jurisdiction.
Ftirthermore, S. 825 seeks to limit the immunity from pre-judgment attachment
and execution of foreign state property by making property of the foreign state, used
for a commercial activity in the United States, available to satisfy tort judgments
obtained under the bill. Due to foreign relations concerns, the availability of pre-
judgment attachment against property of foreign states is extremely limited. In ad-
dition, the Act presently allows for execution of judgments on foreign state property
"used for the commercial activity upon which the claim is based." The bill proposes
to extend execution under the Act to reach any commercial property of the foreign
state, and to do so in the context of a tort judgment.
We should be aware that enlarging the category of property available for pre-judg-
ment attachment and execution in the United States in the United States invites
similar treatment by other countries where our assets may be located. The breadth
of our government's involvement in litigation in foreign courts and the vast amounts
of U.S. government property located abroad give us greater risk of exposure than
any other country in the world.
Once again, let me emphasize the resolve of the Department of Justice to combat
terrorism, and to do so with all the appropriate tools at our disposal. I appreciate
the opportunity to present the Department's views, and will be pleased to answer
any of your questions.
Senator Heflin. Ms. Borek?
STATEMENT OF JAMISON S. BOREK
Ms. BOREK. Thank you, Mr. Chairman. We appreciate the oppor-
tunity to present our views on S. 825 today and this difficult ques-
tion. I will give only a summary of my testimony and would ask
that the full testimony be accepted for the record.
Senator Heflin. It will be so entered.
Ms. Borek. We share very much the concerns of the subcommit-
tee and others who will speak today over State-sponsored terrorism
and the other grievous acts which may be committed. Nonetheless,
as Mr. Schiffer has indicated, we do not believe it would be wise
to enact this amendment to the Foreign Sovereign Immunities Act.
Despite its appeal, the bill raises substantial concerns in several
At present, the Foreign Sovereign Immunities Act provides for
jurisdiction over certain noncommercial torts that occur within the
United States. This cautious approach is consistent with inter-
national law and with the practices of other States. We are not
aware of any case in which a State permits jurisdiction over such
tortuous conduct outside its own territory.
I might add on the commercial exception, as well, this is not wide
open. It conforms to the general understanding of when jurisdiction
is permissible over commercial acts, and this requires that there be
a direct effect on the United States. So it is not a wide open excep-
S. 825 would permit actions against certain foreign States for
terrorist acts committed anywhere in the world. We recognize and
appreciate that a great effort was made to craft this very narrowly.
Nonetheless, it still goes well beyond our existing statute and di-
verges significantly from State practice.
This expansion beyond established international practice would
tend to erode the credibility and workability of the Foreign Sov-
ereign Immunities Act. In the beginning, one of the great efforts,
and it continues to be an effort, is to convince foreign governments
that they really do have to go into our courts and defend them-
selves against charges. In the international view, the courts of a
country may be regarded as not very much different from the gov-
ernment of the country, and in many countries this may be much
more fair than it is in the United States.
The problems could be exacerbated where alleged deliberate gov-
ernmental wrongdoing is involved. It is very difficult ultimately to
get a government to admit and pay for deliberate governmental
wrongdoing, and this is true whether you are pursuing the claim
in diplomatic channels or whether you create a cause of action.
Civil suits could also inject an unpredictable element into deli-
cate relationships and could complicate the achievement of U.S.
counter-terrorism objectives. When you have a delicate negotiation
with a terrorist country— for example. North Korea or Syria—
which has a significant number of issues which are presented and
which are very important in the overall foreign policy scheme,
threatened litigation, actual litigation, problems of discovery, and
ultimately judgments can complicate the achievement of U.S. objec-
Fundamentally, as well, I would note that there is really a ques-
tion about the efficacy of such a remedy. These countries are not
countries which are likely to have assets in the United States, and
if they do, they may very well be frozen with thousands of other
U.S. citizen claims also outstanding against them. Even in the case
of nonterrorist countries, there is a difficulty that exposure to liti-
gation and to execution and attachment can encourage countries
not to leave money in the United States.
The execution provision therefore also presents concerns. Execu-
tion of foreign State property is an area of particular sensitivity.
At present. State property is generally not available for execution
to satisfy noncommercial tort judgments against a foreign State it-
self S. 825 would open this up for execution in terrorism cases.
The potential difficulties created by having worldwide jurisdic-
tion are compounded by this expanded execution. Moreover, in
cases involving deliberate governmental wrongdoing, domestic
measures directed against property will involve likely particular
sensitivity, given the potential for retaliation and disruption of re-
We have concerns also about the provision for prejudgment at-
tachment as one of the countries which has so many assets
throughout the world. At present, we and other countries have re-
quired that there be an actual waiver in order to attach property
prior to litigation or waiver from the foreign government which
owns the property. S. 825 would eliminate the need for waiver.
Again, the problems that are associated with the worldwide juris-
diction compound this difficulty. Most countries will regard this as
extreme, and to add attachment to it will make it only more ex-
treme, especially since attachment occurs in a case at a point in
which there is no determination as to liability.
In short, we do believe that people should have remedies. We do
try to pursue remedies in these cases. The fundamental difficulty
is that governments are often not willing to pay or expose them-
selves to paying for alleged deliberate wrongdoing, especially when
it carries a label, such as terrorism, torture, genocide. Unfortu-
nately, this is one of the difficulties that is inherent in the nature
of the situation and in the nature of international politics.
Having this remedy will be very difficult, I think, from the legal
point of view. Even countries which are sympathetic to the objec-
tives will fmd the extraterritoriality quite extreme and it will make
it more difficult to work with the Foreign Sovereign Immunities
Act and with other countries to consolidate the established con-
cerns that we have reflected in the act today.
[The prepared statement of Jamison S. Borek follows:]
Prepared Statement of Jamison S. Borek
Mr. Chairman and Members of the Subcommittee: I appreciate the oppor-
tunity to appear before you today to discuss the views of the Department of State
on S. 825. This bill would amend the Foreign Sovereign immunities Act of 1976 (the
FSIA) to provide for jurisdiction in U.S. courts in certain cases involving acts of
international terrorism. ^roi^i.
At the outset, I would like to emphasize the resolve of the Department ot btate
in combatting state-sponsored terrorism. Important tools under U.S. law include the
cutoff of foreign assistance and other strong economic sanctions against countries
designated as state sponsors of terrorism. We are a leader at the United Nations
and elsewhere in marshalUng international efforts to combat state-sponsored terror-
ism, including the unprecedented economic sanctions imposed on Libya by the UN
Security Council for its role in the Pan Am 103 bombing. In addition, working close-
ly with the Department of Justice and with numerous cooperative foreign govern-
ments, we are vigilant in bringing to justice individuals who commit acts of terror-
The bill this Subcommittee is considering would amend a statute that was en-
acted in 1976 after several years of work by the Executive Branch and both Houses
of Congress. The effort that went into the formulation of the FSIA reflects both the
political sensitivity and the legal complexity involved in the area of foreign sov-
ereign immunity. . ,.,,.,
Fundamental principles of sovereignty and international law are implicated in de-
termining the extent to which foreign states should be responsible to private per-
sons in the courts of other states. Moreover, our treatment of foreign states here
can have an impact upon the treatment of the U.S. Government abroad. Not only
do we look to the FSIA as a guide in asserting our own immunity abroad, but for-
eign states themselves may well apply our standards against us as a matter of reci-
procity. For these reasons, we have always considered the proper treatment of for-
eign sovereigns in ovu" courts to be a matter of great importance to the conduct of
our foreign relations. /. „ . i
In crafting the FSIA, Congress and the Executive Branch created a carefully bal-
anced structure that provides immunity in some cases and exceptions to immunity
in others. The statute reflects not only a recognition of the foreign relations inter-
ests involved but also a fundamental concern for international law and practice. One
of the main purposes of the FSIA, in fact, was to codify the "restrictive" principle
of sovereign immunity as recognized in international law. This principle, which per-
mits suits in commercial matters, is important to our international economic inter-
The FSIA has been largely successful in achieving its objectives. We believe revi-
sion of the statute should be approached with great caution. Of course we have sup-
ported proposals to amend the statute when we believed they were warranted, and
some of those proposals were ultimately enacted. This was the case, for example,
with the provisions that now address the enforcement of arbitration agreements and
awards. However, we have also opposed suggested revisions of the FSIA when we
believed that they could have an uncertain or potentially damaging effect on our
broader interests and the need for the changes had not been adequately dem-
onstrated. Two years ago, for example, we opposed an amendment that would have
expanded the jurisdiction of our courts to reach cases involving tortious acts or
omissions committed by a foreign state or its officials within its own territory.
We recognize that some proposed amendments to the FSIA have a special appeal
because they reflect deeply held values and important policies that we seek to pro-
mote in other ways in our foreign relations. S. 825, which focuses on terrorism, is
an example. Another example is the bill presently pending in the House, H.R. 934,
which focuses on tortiu-e, extrajudicial killing and genocide. In evaluating these or
other proposed amendments, however, we believe we should keep in mind the fun-
damental interests that our law on foreign sovereign immunity is designed to ad-
vance and the careful balances reflected in that law.
With this background, I would like now to address S. 825. This bill would amend
Section 1605(a) of the FSIA to provide for the jurisdiction of U.S. courts in cases
in which the action is based upon an act of international terrorism which occurs
within the United States or which occurs outside the United States if certain condi-
tions are met. These conditions include the requirements that the action must be
one for injury or death to a United States citizen or permanent resident alien and
that the foreign state involved must be one that has been designated by the Sec-
retary of State as a state which has repeatedly provided support for acts of inter-
The bill would also amend Section 1610(a) of the FSIA to provide for execution
against property of the foreign state in such cases; no nexus between the cause of
action and the property would be required. In addition, the bill would amend Sec-
tion 1610(d) of the FSIA to provide for pre-judgment attachment of the foreign
state's property in such cases even in the absence of an explicit waiver by the for-
I would Uke to address each of these aspects in turn.
The proposed amendment to Section 1605(a) of the FSIA presents serious con-
cerns. Our concerns are best understood by considering first the scope of the excep-
tion for torts which are not of a commercial nature, as it is presently contained in
the FSIA, as well as general international practice in this area.
The non-commercial tort exception was enacted as Section 1605(a)(5) of the FSIA
in 1976. It is only available for torts occvuring in the United States. When the FSIA
was being drafted, there was some question as to whether even this Limited excep-
tion to immunity provided a new remedy not available under international law. In
supporting the denial of immunity for many torts that occur in the United States,
however, the Department's Legal Adviser observed that the tort provision, as draft-
ed, had a substantial basis in international practice.
The House Report (No. 94-1487) that accompanied the FSIA specifically noted
(pp. 20-21) that the tortious act or omission of the foreign state must occur within
the jurisdiction of the United States. The Report made clear the narrow focus of
Congressional concern in this area: "Section 1605(a)(5) is directed primarily at the
problem of traffic accidents * ♦ *. The purpose of section 1605(a)(5) is to permit the
victim of a traffic accident or other noncommercial tort to maintain an action
against the foreign state to the extent otherwise provided by law."
The territorial limitation of this exception to immunity was also emphasized by
the Supreme Court in its 1989 decision in Argentine Republic v. Amerada Hess
Shipping Corp., 488 U.S. 428, 439-40 (1989). The Court stated that "Section
1605(a)(5) is limited by its terms, however, to those cases in which the damage to
or loss of property occurs in the United States. Congress' primary purpose in enact-
ing § 1605(a)(5) was to eliminate a foreign state's immunity for traffic accidents and
other torts committed in the United States, for which liability is imposed under do-
mestic tort law." (emphasis in original)
The cautious approach reflected in the present non-commercial tort exception is
consistent with general state practice in this area. We are not aware of any instance
in which a state permits jurisdiction over such tortious conduct of a foreign state
without territorial limitations. The sovereign immunity statutes of Australia and
the United Kingdom, for example, expressly require that the tortious act or omission
for which immunity is denied must occur in the forum state. Article 1 1 of the Euro-
pean Convention on State Immunity, to which a number of European states are
party, denies immunity "if the facts which occasioned the injury or damage occurred
in the territory of the State of the forum, and if the author of the injury or damage
was present in that territory at the time when those facts occurred."
The International Law Commission's Draft Articles on Jurisdictional Immunities
of States and their Property, which has been considered by a Working Group of the
Sixth Committee of the United Nations General Assembly, is also instructive on the
issue of state practice. Article 12 of the International Law Commission's Draft pro-
Unless otherwise agreed between the States concerned, a State cannot in-
voke immunity from jurisdiction before a court of another State which is
otherwise competent in a proceeding which relates to pecuniary compensa-
tion for death or injury to the person, or damage to or loss of tangible prop-
erty, caused by an act or omission which is alleged to be attributable to the
State, if the act or omission occurred in whole or in part in the territory
of that other State and if the author of the act or omission was present in
that territory at the time of the act or omission.
The International Law Commission's Commentary to Article 12 specifically
stressed territoriality as the basis for the assumption and exercise of jurisdiction in
cases covered by this provision.
It is against this backdrop that the proposed amendment to Section 1605(a) of the
FSIA must be considered. That amendment would permit actions in the United
States against certain foreign states for terrorist acts committed anywhere in the
world. I^t only does such a provision extend well beyond the reach of our existing
statute, but it also diverges significantly from the general practice of states, as de-
scribed. We fully share the concerns over terrorism that underlie this proposal, but
we do not believe such an expansion of the jurisdiction of oiu* courts would be pru-
Consistency of the FSIA with established international practice is important. If
we deviate from that practice and assert jurisdiction over foreign states for acts that
are generally perceived by the international community as failing within the scope
of immunity, this would tend to erode the credibility of the FSLA. We have made
substantial efforts over the years to persuade foreign states to participate in our ju-
dicial system — to appear and defend in actions against them under tne FSIA. That
kind of broad participation serves the interests of all. If we expand our jurisdiction
in ways that cause otiier states to question our statute, this could uncfermine the
broad participation we seek. It could also diminish our ability to influence other
countries to abandon the theory of absolute immunity and adopt the restrictive view
of sovereign immunity, which the United States has followea for over forty years.
These problems could be exacerbated where the divergence from state practice
concerned alleged deliberate governmental wrongdoing. Domestic judicial proceed-
ings designed to respond to such action would necessarily involve particular sen-
sitivity, especially when a violation of important rules of international or domestic
law was aUeged. States are generally reluctant to enter into the domestic courts of
another state to defend themselves against charges of serious violations of law.
This bill could also lead to other undesirable consequences for our foreign rela-
tions. Current U.S. law allows the U.S. Government to fine-tune the application of
sanctions against state-sponsors of terrorism, increasing them or decreasing them
when in the national interest. In addition, the U.S. Government frequently coordi-
nates closely with other nations at the UN and elsewhere on the imposition of sanc-
tions and the development of joint positions vis-a-vis acts of terrorism. The possibil-
ity of civil suits and potential judgments against state-sponsors of terrorism would
inject a new unpredictable element in these very delicate relationships. Such pro-
ceedings could in some instances interfere with U.S. counter-terrorism objectives.
They could also raise difficult issues involving sensitive intelligence and national se-
We recognize that S. 825 contains some elements that would limit the adverse ef-
fects we have described. In particular, only those few countries designated by the
Secretary of State as supporters of terrorism would be directly affected. These limi-
tations, however, do not eliminate the concerns I have described. Moreover, we be-
lieve that such an expansion of our jurisdiction could set a harmfiil precedent. As
the Subcommittee is aware, other amendments have also been proposed, and still
others could be proposed in the future, that would expand the jurisdiction of our
courts in other ways ^at could significantly affect our foreign relations.
The proposed amendment to the execution provisions of Section 1610(a) of the
FSIA also presents concerns. Execution on foreign state property has always been
an area of particular sensitivity. In enacting the FSIA, Congress made clear that
the execution provisions were designed to remedy only in c£irt the predicament of
a plaintiff who has obtained a judgment against a foreign state. Execution against
the property of a foreign state (as contrasted with the property of an agency or in-
strumentality) is narrowly circumscribed by Section 1610, which permits execution
against the property of a foreign state only if the property is used for a commercial
activity in the United States, and then only in specifically defined circumstances.
Non-commercial torts were reco^zed by Congress as presenting issues of special
concern — and the execution provisions of tne FSIA reflect that concern. Section 16 10
only permits execution against the assets of state agencies and instrumentalities
that lose non-commercial tort cases. State property is generally not available for
execution to satisfy non-commercial tort judgments against a foreign state itself
This bill would open up foreign state assets for execution in cases based upon acts
of international terrorism. While the FSIA currently requires a nexus between the
property and the claim in most other instances involving execution against foreign
state property, no such nexus would be required here. We believe that this execution
provision would raise difficulties.
As I have indicated, the substantive jxuisdictional provisions of the bill would ex-
pand the reach of our courts beyond generally accepted state practice and could give
rise to other undesirable consequences as well. In circumstances such as these,
where the underlying assertion of jurisdiction over the action is itself problematic,
it is difficult to see how the provision for execution (especially without any nexus
requirement) could be acceptable. In short, the potential difficulties created by ex-
panded jurisdiction under Section 1605 would be compounded by expanded — execu-
tion under Section 1610, especially since many of these cases would likely involve
default judgments. In cases involving deliberate governmental wrongdoing, more-
over, domestic measures directed against state property could involve particular
sensitivity, given the potential for retaliation and aisruption of relations.
Finally, we are also concerned about the proposed amendment to the pre-judg-
ment attachment provisions of the FSIA. Having in mind the foreign relations prob-
lems to which pre-judgment attachments had sometimes given rise in the era before
the FSIA, the drafters of the FSIA carefully circumscribed the availability of such
attachments. Under the FSIA, pre-judgment attachments against foreign state prop-
erty may be obtained only if the purpose of the attachment is to secure satisfaction
of a judgment and only if the foreign state has explicitly waived its immunity from
such attachment. In effect, such measures are permitted only where the foreign
state could be said to have consented to them.
S. 825 would eliminate the need for explicit waiver in cases based upon acts of
international terrorism in which the foreign state is not immune from jurisdiction.
The provision would appear to require a court to make a determination on immunity
as a prerequisite for a pre-judgment attachment in such instances, and W3 recognize
that this limits to some extent the reach of the provision. Nevertheless, we believe
the provision still raises difficulties.
As in the case of execution, the problems associated with the underlying assertion
of jurisdiction over these actions are compounded by the provision for pre-judgment
attachments, since these are designed essentially to enforce the assertion of jurisdic-
tion. As a general matter, moreover, pre-judgment attachments carry potential for
disruption m our relations with other states. With this consideration in mind, and
given the exposure of U.S. Gk)vemment property abroad, we have viewed the FSIA's
curtailment of such measures as wise. Consistent with this view, in the context of
the UN Sixth Committee Working Group we have opposed proposals that would per-
mit pre-judgment attachment without a waiver. S. 825 would represent a loosening
of the existing regime under the FSIA that could once again in particular instances
lead to irritations in our foreign relations.
Finally, I would like to draw your attention to an issue to which I referred at the
outset. Restrictions on immunity have a reciprocal dimension. If the United States
extends the jurisdiction of its courts to embrace cases involving alleged wrongdoing
by a foreign state outside the United States, we would have to expect that some
other states could do likewise. However, there is of course no guarantee that any
action taken by other states would precisely mirror our own. If other states were
to expand the jurisdiction of their own courts, they might not limit such action to
terrorism, for example, but could seek to include as well other kinds of alleged
wrongdoing that comd be of concern to us. The Department of Justice, which has
responsibility for litigation against the United States abroad, may be in a position
to provide further comment concerning the reciprocity aspects of this bill.
The Department of State fully shares the concern of this Subcommittee with
state-sponsored terrorism and its devastating effects on individual Americans. For
the reasons described, however, we do not believe it would be wise to enact S. 825.
I appreciate the opportunity to present our views.
Thank you, Mr. Chairman.
Senator Heflin. The State Department has, of course, expressed
concern that it would be inappropriate for the courts of this country
to inquire into whether or not it would be proper for a U.S. citizen
to pursue his claim in the courts of a foreign State. Yet, the Tor-
ture Victim Protection Act mandates this inquiry.
What is the basis for permitting this inquiry under the Torture
Victim Protection Act but prohibiting it under the Foreign Sov-
ereign Immunities Act?
Ms. BOREK. Well, it is in either case a very difficult inquiry and
one which is likely to create a great deal of sensitivity and poten-
tial difficulty. From that point of view, it is a difficulty in either
case. It would be worse, I guess, under the Torture Victim Protec-
tion Act not to have that requirement because that is an estab-
lished requirement under international law that you first try to use
whatever remedies are available in the country itself. It would be
difficult to proceed without this. So while I think it causes signifi-
cant difficulties, to still go ahead and provide the cause of action,
yet to leave out this requirement, would be even worse.
Senator Heflin. Alliances in the world are constantly shifting.
An ally 1 year can become a terrorist the next year. The peace-
keeping actions of the United States 1 year could well later be con-
strued as terrorist — Haiti, for example. Keeping in this mind, how
could fears of reciprocity through S. 825 influence U.S. foreign pol-
Ms. BoREK. Well, I think you are right to point to this concern.
The United States has a very active foreign policy in many ways
and is the last remaining super power. It is in some ways more ac-
tive than that of other countries, and there has always been a
great deal of debate over what terrorism is or what other things
might be done that would be accused of being in violation of inter-
That is a calculation that would have to be made in a particular
case. I think we also would tend to reject the idea that a foreign
government can judge in its own courts sovereign actions which we
are taking, for example, for national security reasons. That is one
of the sort of fundamental problems with the question here. If you
are doing something for national security reasons and you believe
it is important to your vital interests, do you really think that an-
other country should be able to judge you in its courts as to wheth-
er this was legal and insist that you pay for it? Countries have
tended to resist that.
Senator Heflin. If the United States takes the position that it
can enforce its criminal laws against those who act under the color
of authority, such as Manuel Noriega in Panama, why should
American citizens be unable to pursue civil remedies under similar
Ms. Borek. Well, the criminal laws do apply against individuals
and we do have the possibility of civil suits under the Torture Vic-
tim Protection Act or under Senator Specter's amendment against
individuals. We have not believed in the criminal behavior of
States and foreign governments committing criminal behavior, and
similarly we would see difficulties with subjecting them to civil
suits, so they are parallel in that sense.
Senator Heflin. Well, you might have a different situation in
Panama with an existing government, but to take Iraq where you
have got Saddam Hussein, in the event that he would come under
the jurisdiction of U.S. authorities and could be tried, civilians who
might have suffered matters pertaining to which this proposed bill
covers would not be allowed to pursue their remedies. Is that some-
what of an inconsistent position?
Ms. BOREK. Well, if you were suing Saddam Hussein as an indi-
vidual, that would be a different question and that would be cov-
ered by existing law.
Senator Heflin. But I was speaking about suing the government
of Iraq in that instance. In the Panama illustration, you had the
situation of whether he was the valid holder of power of the recog-
nized government, but within the scenario that I have put forth
that element wouldn't be present. Was that a distinction?
Ms. BoREK. Well, not under this amendment. We don't go into,
when you are suing the whole country, what we think about the
particular government. There was a case, for example, where the
government of the Philippines was sued after the departure of Fer-
dinand Marcos for actions which had been taken while he was
president, allegedly at his direction. It was the new government
that was in place when they were sued, but the suit is really
against the country and not the individual who happens to be in
Senator Heflin. Well, as I understand it the United Nations is
attempting to develop some type of standards by which this would
occur. I was just trying to remember the specific thing. Do you
know what I am referring to?
Ms. BOREK. Well, there is the effort to develop the international
criminal court which would provide for international prosecutions
of individuals in certain cases, and that is ongoing in the United
Nations International Law Commission. Of course, the most strik-
ing example there is the Yugoslav War Crimes Tribunal which has
been recently created.
There is another effort, the Draft Code of Crimes, which is trying
to define criminal behavior. We have some difficulties with that, I
think, in the substance and the political nature of it.
Senator Heflin. Well, I was speaking of the International Law
Commission's Draft Articles on Jurisdictional Immunities of States
and Their Property, which has been considered by a working group
in the United Nations.
Ms. BOREK. Yes.
Senator Heflin. How would that come into play relative to this?
Ms. BOREK. Well, that illustrates, I think, where we are in terms
of international law. When we first adopted the Foreign Sovereign
Immunities Act, the effort was really to codify the view that States
could be sued at all in any circumstances, and the area of greatest
concern was in commercial dealings, especially with so many gov-
ernments actively involved in commercial dealings on their own.
Today, although you might think things had progressed quite a
lot, that is still a big issue and there are still a number of countries
which believe that governments shouldn't be sued at all or that the
ability to sue them in commercial matters should be highly re-
stricted. In terms of what we are talking about now, suing for torts
generally, that is still far beyond the existing international practice
and the views of other countries as to what the law might be.
Senator Heflin. The liability in S. 825 is limited by the State
Department's Hst of Nations which sponsor terrorism, such as
Libya and Iran. In the spirit of reciprocity, these Nations have
often tried to impose criminal penalties on U.S. officials within
their domestic systems. Given that these criminal charges were ig-
nored by the United States, why would civil charges be of concern?
There have been some instances in which we have ignored those.
Ms. BOREK. I am not specifically aware of these instances. If you
want, I can try to provide a fuller answer on that basis. I would
say, in terms of financial liability, two things. One is I think what
we are concerned about here is the impact on international law and
it might not be one of the terrorist countries that decides that they
would like to execute against some of our assets. We are less in a
position to ignore that sort of thing throughout the world than
many countries might be because we have such a wide presence
and so many assets abroad.
Senator Heflin. Senator Grassley, do you have an opening state-
ment or any questions you want to ask the witnesses?
STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR
FROM THE STATE OF IOWA
Senator Grassley. I have no opening statement. I would explain
my absence, if you would allow me to, by saying I was across the
hall at a markup of health care reform. I do want to participate in
this discussion for a short period of time because I have had an in-
terest in this legislation, as well as some legislation I got passed
in other Congresses.
As you know, it was 1992 when Congress enacted the
Antiterrorist Act which allows American victims of terrorism to sue
groups that commit the terrorism. The case that we had in mind
at that time was the one of Leon Klinghoffer murdered by a faction
of the PLO. His family is barred from suing by a short statute of
limitations, but at least we have got a mechanism set up so if there
is another such tragedy there can be a remedy.
Now, this bill that we are dealing with, would have in mind spe-
cifically, at least from the past, Pan Am 103 victims, as well as
hostages held in Lebanon. It would allow them to sue the country
of Libya, Lebanon, or Iran for damages. It seems unfair to allow
a remedy for victims of a terrorist group, but not victims of State-
sponsored terrorism against the Nation that is committing the ter-
So my question to you is how would you distinguish the two that,
from your point of view, one approach is all right, but not from the
other point of view as far as the relief for a person to sue?
Ms. BOREK. Well, the biggest, I guess, and obvious difference is
that you are not affecting foreign sovereign immunity in the case
where you sue the individuals. There are two aspects, I guess, to
the thing. One is the extraterritoriality of jurisdiction and the other
is the impact on foreign sovereign immunities, and it is when you
have both present, I think, that we have to say that internationally
this is going to be regarded as extreme and not consistent with
In terms of actually recovering, I don't think there is probably
very much chance either way, either suing the individuals — obvi-
ously, the difficulty is that they don't have money. With the gov-
ernments, the difficulty is that it is not available, or if you might
recover once they would take steps to make sure that was the last
Senator Grassley. But your attention is focused upon the Nation
that caused the problem. My attention is focused on the poor vic-
tims and some sort of relief that they have. You are right. Maybe
as a practical matter, it is very difficult to collect in these in-
stances, but whatever tool it is, it is one more tool that is available.
It would seem to me that if it is very doubtful anybody would col-
lect, then what is the bad aspect of putting such a provision on the
books so that we have another tool available to our people?
Secondly, why does the State Department believe that allowing
private individuals to sue foreign governments for barbaric acts of
terrorism would create a potential national security threat?
Ms. BOREK. Well, national security threat potentially is perhaps
a colorful way of putting it, but basically we have negotiations
going with many countries on the terrorist list over important is-
sues, such as the Middle East peace process, nonproliferation, and
in some cases active hostage-taking and the release of the hostages.
The prospect of litigation and threatened or existing judgments is
very Hkely to become an issue in these negotiations, which could
complicate it in unpredictable ways. So I mean that is a concern.
Senator Grassley. From the standpoint of the State Department
or our Government generally, if a person who has been harmed
isn't permitted to sue a foreign government, then how would our
Government propose that these victims receive compensation for
their injury and their pain and their continuous loss, or should that
not be a concern of our Government?
Ms. BOREK. Well, different things have been pursued in different
cases. As a minimum sort of benefit, there is, of course, the hostage
legislation. In some cases, we have been able actively to pursue and
even achieve remedies. In the case of Pan Am 103, for example, we
are vigorously pursuing both criminal justice and compensation for
the victims against the perpetrators of this terrorist act.
Senator Grassley. I would like to pick up on the reciprocity
issue that Senator Heflin discussed with you. As I understand it,
the State Department's main concern about this legislation is they
fear that foreign States will take reciprocal action, resulting in the
U.S. being brought into foreign courts to account for the actions of
U.S. law enforcement agencies taken on U.S. soil.
However, since the Letelier case decision in 1980, U.S. law en-
forcement agencies can be held accountable for their activities
abroad. It is my understanding that there has not been a flood of
such litigation. Therefore, what is the basis for the Department's
Mr. SCHIFFER. I would emphasize that Letelier, Senator, is a good
example of a case where indeed it took time, but the State Depart-
ment, working with the new government of Chile, was able to as-
sist in obtaining relief for Letelier, and that was an act that oc-
curred in this country. Our concern is really at its height when we
talk about imposing responsibility on foreign governments in our
courts for acts that occur abroad.
While we certainly would not say that we engage in any of the
types of conduct that this act is designed to address, we do have
massive presence of law enforcement personnel and others abroad
and we have people who interact in this country with foreign na-
tionals. It is those concerns, not the precise type of conduct, but the
fact that the Foreign Sovereign Immunities Act currently conforms
to what we think are international norms, and when we start going
beyond that, that is when we create exposure for our property.
Senator Grassley. Don't we believe, though, that if a U.S. citi-
zen or even our own officials have engaged in such conduct else-
where, they should be held accountable as well?
Mr. SCHIFFER. We certainly observe the rule of law, but what we
are concerned about is submitting to the jurisdiction of foreign
courts to interpret for themselves the validity of actions that we
take in our national interest.
Senator Grassley. This bill grants the State Department control
over determining which countries can be held liable for their ac-
tions. These are Nations that repeatedly receive public condemna-
tion by our country. In fact, these are Nations that have tried to
impose criminal penalties upon U.S. officials within their domestic
systems. As you know, Libya indicted Reagan and others. In every
instance, it was to no avail and of no concern to the United States.
Therefore, what realistic concern of reciprocity could S. 825 truly
Ms. BOREK. Well, I think the potential here is not on a — well, in
some cases it could be on a tit-for-tat basis, but the greater poten-
tial is to create a precedent which anyone can take advantage of.
We have had complaints — they haven't become really serious mat-
ters, luckily, to date — about the behavior of law enforcement ac-
tions, attempts to sue people for carrying out routine law enforce-
ment actions that we don't think involve any individual responsibil-
People can be, for domestic reasons, quite interested in pursuing
some of these cases and we will be providing a clear precedent
which they can take advantage of. So with the exposure that the
United States has throughout the world, it might not be Libya
today because we have relatively few dealings with them, but it
could be another country, or even some day it could be Libya.
Senator Grassley. Well, isn't there some inconsistency when our
State Department doesn't object to U.S. citizens suing foreign gov-
ernments for an act of terrorism on U.S. soil, and yet an act of ter-
rorism created by another country against our citizens not on U.S.
soil — we object to that?
Ms. BOREK. It is much more common for countries to permit tort
suits for things which occur within their own countries, although
even though even that is not universal. I mean, important coun-
tries such as France don't allow tort suits against foreign govern-
ments at all.
Under current law, there have been a few cases allowing actions
for murder. It wasn't necessarily styled as terrorism, and that may
be desirable because it is a little less inflammatory from the point
of view of the government that is sued. But it is clearly much less
troublesome in terms of international law and practice to allow
suits for activities that occurred within the United States.
Senator Grassley. Thank you, and thank you, Mr. Chairman.
Senator Heflin. Senator Specter, do you have an opening state-
ment or some questions?
Senator Specter. Mr. Chairman, I thank you. I regret being late
for the hearing. We are debating the Whitewater resolution on the
floor this morning and the Republican Leader, Senator Dole, asked
me especially to be there so, I must return to the floor.
I am the sponsor of the bill and I have some testimony to pro-
Senator Heflin. Yes, that is right.
Senator Specter. So the question is whether I do it here or there
and I think it would be
Senator Heflin. Which would you like to do? Whatever you
would prefer, we will accommodate your schedule.
Senator Specter. Well, I think I would prefer to do it as a wit-
ness, if I might, Mr. Chairman.
Senator Heflin. All right. Do you want to ask these witnesses
Senator Specter. No, I do not intend to ask them questions.
Senator Heflin. Well, let me, before we leave, ask one question
of Mr. Schiffer. Making a hypothetical case, we will say in Iraq a
U.S. Government official is subject to being detained and suffers
some loss. It doesn't come within the purview of this torture act or
immunity, but he receives substantial damages. Then you have, on
the other hand, a person who is a nongovernment employee. What
is the distinction between remedies that could be recovered by the
U.S. Government official as opposed to a U.S. citizen who is not a
We could use the same situation in regard to some of the hos-
tages and things of that sort. I am making the distinction between
a Government employee who is apprehended by a country that is
the terrorist Nation list and an American citizen who is not a U.S.
Government employee. I am trying to make the distinction between
Mr. Schiffer. I am not sure that there is a distinction.
Senator Heflin. I would assume that the U.S. Government em-
ployee would have certain workers compensation rights and things
like that, or else some remedies that would be available to him for
monetary damages that he would suffer.
Mr. Schiffer. He or she might well have workers compensation
rights, but in terms of actions in the courts, I am not sure that
there would be a distinction.
Senator Heflin. Well, it could well be that there are some other
remedies. I am not sure about this. The thought just occurred to
Thank you for your testimony. We appreciate it.
Mr. Schiffer. Thank you, Mr. Chairman.
Senator Heflin. We will now hear from Senator Specter.
STATEMENT OF THE HON. ARLEN SPECTER, A U.S. SENATOR
FROM THE STATE OF PENNSYLVANIA
Senator Specter. Thank you very much, Mr. Chairman. At the
outset, I thank you. Senator Heflin, for convening these hearings,
which were postponed once because of conflicting schedules.
I believe this is very important legislation because of the basic
rights of American citizens to sue foreign governments for abso-
lutely outrageous, barbaric, brutal treatment. I also beHeve that
the provisions of the existing statute ought to be amended to pro-
vide expanded jurisdiction. The reasons for governmental immunity
and the concerns over reciprocity are really minimal compared to
what is involved in seeking to punish the illegal conduct of foreign
The Foreign Sovereign Immunities Act precludes these suits at
the present time. My bill, S. 825, would give the Federal courts ju-
risdiction over suits for damages for personal injury or death
brought against a foreign government if that country has commit-
ted, caused or supported an act of terrorism against an American
citizen or resident alien. The foreign country could be sued only if
the State Department has listed it as a supporter of international
Mr, Chairman, as you know, I have introduced legislation in the
past on the issue of diplomatic and foreign immunity. I understand
the concerns which the State Department has expressed, but the
problem of terrorism is an international plague.
In my floor statement when I introduced the bill, I summarized
some of the statistics. In the past 10 y2 years more than 6,500
international terrorist incidents have been reported worldwide,
leaving more than 5,100 people dead and 12,500 wounded, and
about 2,500 of those attacks were against American targets. As of
May 1992, American casualties since 1980 totaled 587 dead and
I cite with some particularity the incident of Joseph Cicippio,
who is with us today. Mr. Cicippio is a neighbor of mine who lives
up Ridge Avenue. It is a short ride from East Falls, where I live,
in the city of Philadelphia across the county line to Norristown.
Mr. Cicippio was taken hostage on September 12, 1986, while
serving as the deputy comptroller of the American University in
Beirut. He was kidnapped by a group self-styled the Revolutionary
Justice Organization and he was held until December 2, 1991.
There are other hostages — ^Alan Steen, Terry Anderson, David Ja-
cobsen, and many, many others.
Without going into the details of Mr. Cicippio's case, because he
is going to be a witness and provide his own testimony, the reports
are that the treatment he and the other hostages received was just
absolutely barbaric. Hostages were chained and bound, left out to
the elements, taunted, threatened with execution, starved, beaten.
Any kind of mistreatment that can be conceived of, these hostages
have been subjected to it.
The situation is exacerbated by the fact that foreign governments
provide support, both political and financial. The Hezbollah, the
umbrella organization for many militant Shiite Muslim terrorist
groups in Lebanon, including the Revolutionary Justice Organiza-
tion, collaborates with the political leaders of Iran. It is reported
that Iran has spent $30 million during 1985 and more than $64
million in 1987 in Lebanon mainly in the form of donations to
Hezbollah and other terrorist organizations.
These foreign governments that support terrorism have assets in
the United States, and there is just no reason whatsoever why they
shouldn't be subject to suit. There is a category of international
crime where there is jurisdiction in a criminal context wherever the
offense occurs. As you know. Senator Heflin, Chief Justice Heflin,
Judge Heflin, criminal jurisdiction customarily attaches only where
the crime occurs, so that if a crime occurs in Washington, DC, only
the District of Columbia has jurisdiction. There are a few excep-
tions, like piracy, which is an international crime. A pirate may be
prosecuted criminally wherever he may be found.
Torture is similarly an exception to the customary law on juris-
diction. Somebody who commits torture may be prosecuted wher-
ever that person may be found and if found in this country can be
sued under the Torture Victim Protection Act, which I sponsored,
where a foreign government is a co-conspirator, an accessory before
the fact or an accessory after the fact, it is just unconscionable that
we should not allow our citizens to utilize our courts. They would
have to prove their case against the foreign government in order
to sustain a judgment and collect on it, but I think our courts
ought to be open to hear such claims.
I thought it preferable, in custom with our general rules, Mr.
Chairman, to come down here to the witness table. That will not
stop me from lobbying you appropriately in the corridors or on the
Senate floor, or making arguments when the matter comes before
the Judiciary Committee.
I do thank you for conducting the hearing. I know how crowded
your schedule is, but I think this is an important matter.
Senator Heflin. Well, thank you, Senator Specter. If you want
to come back up and question the other witnesses, we would be de-
lighted for you to do so.
Senator Specter. Thank you very much.
[The prepared statement of Senator Specter follows:]
Prepared Statement of Senator Arlen Specter
Mr. Chairman, from 1984 to late in 1991, American citizens were held hostage
in Lebanon by terrorist groups sponsored and funded by the Government of Iran.
Since their release, many of these former hostages have continued to suffer from
the physical and emotional trauma that their periods in captivity thrust upon them.
Were a similar situation to occur in this country, the injured party would have ac-
cess to the judicial system to seek redress in the form of monetary damages in addi-
tion to any criminal kidnapping charges. Because the perpetrator behind these acts
of terrorism in Lebanon was a foreign government, however, the aggrieved parties
cannot seek redress in American courts because of the immunity granted to foreign
nations under the Foreign Sovereign Immunities Act. To remedy this travesty for
future victims, I am today introducing legislation to amend the Foreign Sovereign
Immunities Act. , i j
Since 1980, more than 6500 international terrorist incidents have occmred world-
wide, leaving more than 5100 people dead and 12,500 wounded. About 2500 attacks
were' against American targets. As of May, 1992, American casualties since 1980
have totaled 587 dead and 627 wounded.
Of particular concern and notoriety was the taking of American hostages in Leb-
anon. On September 12, 1986, Joseph James Cicippio, of Norristown, Pennsylvania,
deputy comptroller of the American University of Beirut, was kidnapped by some
group self-styled the "Revolutionary Justice Organization." He was held until De-
cember 2, 1991, when, in the span of a few remarkable days, the ordeal of the Amer-
ican hostages ended with the release of the last three hostages, Mr. Cicippio, Alann
Steen, and Terry Anderson. ^ ,
"Ended," however, is a relative term, for the ordeal is still not really over for the
former hostages. Released hostages reported that they were tortured by their cap-
tors. The torture took many forms. Hostages report that they were beaten, starved,
chained and bound, exposed to the elements, blindfolded, taunted, subjected to
threatened executions, and denied medical and hygiene facilities. Some former cap-
tives still suffer from the pain of numerous beatings, especially to their feet. Alann
Steen is reported to suffer still from beating-related seizures. Lost time with friends
and famiUes cannot be replaced: Terry Anderson's daughter was bom and had
turned foiir before he was released from captivity; Joseph Cicippio's older sister, and
his son, Joseph Jr., died while he was held hostage. The pain of their ordeals may
never end; the suffering in their hearts may never cease.
What exacerbates any feeling of antipathy is the knowledge that a foreign govern-
ment provided the support, both politically and financially, for the captors to keep
their victims. Hezbollah, the umbrella organization for many militant Shia Moslem
terrorist groups in Lebanon, including the "Revolutionary Justice Organization,'
closely coUaborates with the leadership in Iran. The collaboration is reflected in the
financial support which it receives from Iran. It is reported that Iran spent $30 mil-
lion during 1985 and more than $64 milUon during 1987 in Lebanon, mainly in the
form of donations to Hezbollah. Iran's control over the hostage-takers remains un-
clear, but Government officials have estimated that their control ranged from gen-
eral to complete. Regardless, Iran's role in the taking and keeping of American hos-
tages underscores the need for this legislation, because under the Foreign Sovereign
Immunities Act as it now stands, the former hostages are probably precluded from
successfully pursuing legal action against Iran or any other foreign sovereign for
sponsoring terrorist activity.
This legislation would amend the Foreign Sovereign Immumties Act by giving
Federal courts jurisdiction over any suit brought in this country against any foreign
country that has been formally listed by the State Department as a supporter of
international terrorism, if that foreign state has committed, caused, or supported an
act of terrorism against an American citizen. The legislation would also enable the
court to freeze all assets of the defendant country located within the United States
sufficient to satisfy a judgment. The bill also provides for a six year statute of limi-
tations. ,J /. ,1 iV TT -1. J
This legislation is important for several reasons. It would further the Umted
States policy of opposing domestic and international terrorism and would dem-
onstrate to the world that the United States and its people are prepared to act to
combat and respond to terrorist acts. It also reinforces our commitment to the rule
of law, and in so doing makes clear the contrast between our nation which abides
by the principles of international law and outlaw nations such as Iran, which do
not. , ... .• i.
This legislation would let foreign sovereigns know that states which practice ter-
rorism or actively support it will not do so without consequence. When there is
ample evidence that a foreign state supports terrorism so that the State Department
has placed that nation on a hst of nations that sponsor terrorism, this legislation
will allow United States citizens, acting according to lawful process in our courts,
to protect their interests and seek compensation for the harm done to them.
State-sponsored terrorism has become a hallmark of certain regimes seeking to
influence the political decisions made by the elected representatives of the people
in our democracy. None of these nations that actively support state-sponsored ter-
rorism is itself democratic. Countries such as Libya, Iran, Cuba, North Korea, and
Iraq will be less likely to support terrorism directed against the citizens of this
country when they know that their actions will lead to damages paid to the victims
of their terrorism who are United States citizens.
Iran reportedly paid $1 to $2 million for each hostage released to the various fun-
damentalist groups under its control, after paying for the up keep and confinement
of those hostages. This money would be better spent aiding the former hostages as-
similate back into their lives and would create a real, measurable cost to Iran for
supporting their captivity.
This amendment would also provide additional incentive to other nations to com-
ply with the principles of international law, which condemn terrorism and attacks
on innocent citizens of another nation. When a nation's refusal to comply with inter-
national law leads to compensation to the victims of its actions, those nations that
violate international law will see it as more practical, and beneficial, to change their
policies. As demonstrated by the success of combatting terrorism during the height
of the Gulf War when the international comm.unity agreed to work together to pre-
vent terrorism, much can be accomplished. Supporting this legislation will allow
Americans to play a role in enforcing international law by giving them redress
against those nations that actively violate international law.
United States counter-terrorism poUcy is based on three principles: first, the Unit-
ed States makes no concessions to terrorists holding official or private American citi-
zens hostage; second, the United States cooperates with friendly countries in devel-
oping practical measures to counter terrorism; and third, the United States works
with other countries to put pressure on terrorist-supporting states to persuade them
that such support is not free. While these principles serve the policy of the United
States government, they do little to address the concerns of individuals who have
been the victims of international terrorism. In order to address the individual prob-
lems and results of terrorism, individuals must be able to seek redress for them-
selves. United States lawr should aid American citizens in this pursuit, not hinder
them. Supporting this legislation would serve the purpose of aiding American citi-
zens, while supporting America's counter-terrorism goals.
I note flnalfy that the purpose of the Foreign Sovereign Immunities Act was to
shield foreign nations, as opposed to foreign nationals, from the jurisdiction of
American courts for sovereign acts. This is a salutary policy that promotes the pur-
suit of American foreign policy interests and goals. I nave no desire to attack this
policy projecting foreign nations from suit. This legislation is very narrowly crafted
to create a slight breach in the immunity enjoyed by foreign governments. Only
those nations formally recognized by the State Department as active supporters of
state-sponsored terrorism could be sued. Thus, this legislation should have no effect
on the ability of the President and officers of the Executive to control U.S. foreign
policy. While I understand the possible reluctance to open the door to suing foreign
nations at all, I beheve that the circumstances here are compelling. Terrorism vio-
lates all principles of international law. If a nation is formally recognized by the
United States Government as a sponsor of terrorism, there can be no valid argu-
ment allowing that nation to retain its immunity under American law for the harm
committed in pursuit of its terrorist policies.
I ask unanimous consent that a copy of my legislation be printed in the Record
at the conclusion of my remarks. I thank the Chair and I yield the Floor.
[Text of S. 825 follows:]
To amend title 28 of the United States Code to permit a foreig:n state
to be subject to the jurisdiction of Federal or State courts i'.\ any
case invoh-ing an act of international terrorism.
IN THE SENATE OF THE UNITED STATES
April 27 (legislative day, April 19), 1993
Mr. Specter introduced the following bill; which was read twice and referred
to the Committee on the Judiciar\-
To amend title 28 of the United States Code to permit
a foreign state to be subject to the jurisdiction of Federal
or State courts in anj^ case invohnng an act of inter-
1 Be it enacted hy (lie Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
3 SECTION 1. INAPPLICABILITY OF FOREICr: SOVEREIGN IM
4 MUNITY IN CASES INVOLVING ACTS OF
5 INTERNATIONAL TERRORISM.
6 (a) Definition.— Section 1603 of title 28, United
7 States Code, is amended by adding at the end the
1 "(f) The term 'act of international terrorism'
2 means an act —
3 "(1) which is violent or dangerous to
4 human life and that is a violation of the crimi-
5 nal laws of the United States or of any State
6 or that would be a criminal ^^olation if commit-
7 ted \\ithin the jui-isdiction of the United States
8 or any State; and
9 "(2) which appears to be intended —
10 "(A) to intimidate or coerce a ci\ilian
1 1 population;
12 "(B) to influence the policy of a gov-
13 ernment by intimidation or coercion; or
14 "(C) to affect the conduct of a gov-
15 • ernment by assassination or kidnapping.
16 "(g) The term 'permanent resident alien' means
17 an alien who has been laAxfull}' admitted to the
18 United States for permanent residence.".
19 (b) Additional Exception to Foreign State Im-
20 MUNiri'.— Section 1605(a) of title 28, United States
21 Code, is amended —
22 (1) by striking "or" at the end of paragi-aph
24 (2) by striking the period at the end of para-
25 graph (6) and inserting "; or"; and
•S 825 IS
1 (3) b}- adding at the end the following new
3 "(7) in which the action is based upon an act
4 of international terrorism —
5 "(A) A\ithin the United States, or
6 "(B) outside the United States if money
7 damages are sought against a foreign state for
8 personal injuiy or death to a United States citi-
9 zen or permanent resident alien,
10 whicli act occurred not more than 6 years previously
11 and which was committed or aided or abetted by a
12 foreign state that was designated by the Secretary of
13 State as a state repeatedly providing support for
14 acts of international terrorism under section 40(d)
15 of the Arms Export Control Act.".
16 (c) Property Subject to Execution Upon a
17 Judgment.— Section 1610(a) of title 28, United States
18 Code, is amended —
19 (1) by striking "or" at the end of paragi-aph
21 (2) by striking the period at the end of para-
22 graph (6) and inserting "; or"; and
23 (3) by adding at the end the following new
•S 825 IS
1 "(7) the execution relates to a judgment en-
2 tared in a case based upon an act of international
3 terrorism —
4 "(A) \\ithin the United States, or
5 "(B) outside the United States if money
6 damages are sought against a foreign state for
7 personal injurj' or death to a United States eiti-
8 zen or permanent resident alien,
9 which act occurred not more than 6 years previously
10 and which was committed or aided or abetted by a
1 1 foreign state that was designated by the Secretary of
12 State as a state repeatedly providing support for
13 acts of international terrorism under section 40(d)
14 of the Arms Export Control Act.".
15 (d) Attachment of Property Prior to Entry
16 of Judgment. — Section 1610(d) of title 28, United
17 States Code, is amended —
18 (1) by redesignating paragraph (1) as para-
19 graph (1)(A);
20 (2) by striking "and" at the end of paragraph
21 (1)(A) and inserting "or"; and
22 (3) by inserting after paragi'aph (1)(A) the fol-
•S 825 IS
1 "(B) the foreign state is not immune from ju-
2 risdiction by virtue of the operation of section
3 1605(7); and".
•S 825 IS
Senator Heflin. Our panel is composed of Mr. Abraham Sofaer,
who is the former legal adviser for the State Department; Mr. Chad
Hall, a former hostage; Mr. Joseph Cicippio, a former hostage; Mr.
David P. Jacobsen, a former hostage; and Mr. Hugo Princz, a
If you all would come forward to the table, your prepared state-
ments will be admitted into the record, and if you would summa-
rize in 5 minutes, the light will come on, the caution light at 4, and
the red light is the ending at 5 minutes.
Mr. Princz, since you are there first, we will start with you and
we will go right down the list.
PANEL CONSISTING OF HUGO PRINCZ, FORMER HOSTAGE;
HON. FRANK PALLONE, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF NEW JERSEY; DAVID P. JACOBSEN,
FORMER HOSTAGE; JOSEPH CICIPPIO, FORMER HOSTAGE;
CLINTON A. HALL, FORMER HOSTAGE; AND ABRAHAM D.
SOFAER, HUGHES, HUBBARD AND REED
STATEMENT OF HUGO PRINZ
Mr. Princz. Mr. Chairman and members of the subcommittee,
thank you for the opportunity to tell my story as an American holo-
caust survivor denied reparation by the Federal Republic of Ger-
many for 40 years precisely because of my U.S. citizenship.
My experience underscores why the Foreign Sovereign Immuni-
ties Act should permit suits by Americans injured abroad by for-
eign governments. Senator Specter deserves credit for his bill's sup-
port of this principle. I also want to thank my Senators, Lauten-
berg and Bradley, and Senators Lieberman, Kerry of Massachu-
setts and D'Amato of New York, and my Congressman, Frank
Pallone of New Jersey, for their outstanding leadership in my fight
Mr. Chairman, my name is Hugo Princz. I am 71 years old and
I live in Highland Park, NJ. I was bom in what is now the Repub-
lic of Slovakia in 1922 to an American businessman. I was a U.S.
citizen at birth. In 1942, my family was arrested by the Nazis, who
ignored our valid U.S. citizenship papers because we were Jewish
Americans. Those papers should have made us part of the Red
Cross civilian prisoner exchange then ongoing. Instead, we were de-
ported to the Maidanek camp.
My parents and older sister and her three children were sent to
the Treblinka death camp. I never heard from them again. I found
out in the summer of 1942 that the whole camp at Treblinka was
annihilated. Believe it or not, I was relieved. I was almost happy
that they didn't have to suffer anymore. Can you imagine how a
mind can work, even mine?
My brothers and I were sent from Maidanek by cattle car to
Auschwitz, where we were formally registered as American Jews
on our identity cards. We worked as slave laborers. On my first day
arriving there, I collected dead bodies, stacking them like lumber
for later incineration. Both of my brothers were intentionally
starved to death after suffering work-related injuries. Mr. Chair-
man, I will never forget the sight of my 14-year-old brother in that
so-called hospital as long as I live, a living and then dying skeleton.
From Auschwitz, I was sent to the Warsaw Ghetto. This was a
couple of months after the uprising. From there, I went on a death
march to Camp Dachau. I was enslaved in a Messerschmitt under-
ground airplane factory. In 1945, the Nazis, seeking to erase evi-
dence of war crimes, placed surviving inmates on a death train
headed toward the Swiss Alps. It was intercepted by U.S. armed
forces and I was liberated. The plan was to annihilate everybody.
This evidence was admitted by Eichmann at the trial in Israel.
The Army saw "USA" on my camp jersey and sent me to a U.S.
military hospital for treatment. I was in bad shape. While that ac-
tion saved my life, it later affected my ability to receive reparations
from Germany. With my entire family exterminated, I arrived in
Pennsylvania in 1946 to try and rebuild my life.
In 1955, the Federal Republic of Germany initiated its conipensa-
tion program for survivors, to which I made timely application.
However, I was refused because I was an American citizen when
captured and later rescued and was sent to the U.S. Army hospital.
I did not meet the criteria for reparations eligibility.
The Federal Republic of Germany has steadfastly denied me my
pension in the intervening 40 years, despite the best efforts of the
Congress and the State Department, and even though I believe I
am the only known survivor in my situation and seek merely the
same reparations as Germany has provided others who were Ger-
man or European nationals during the Holocaust. Why am I less
deserving just because I am an American? Up to this point $74 bil-
lion was paid out to survivors. I never received a cent because I
was an American citizen.
After exhausting diplomatic remedies, I sued the Federal Repub-
lic of Germany in Federal district court in Washington. In Decem-
ber 1992, Judge Sporkin denied Germany's motion to dismiss for
lack of jurisdiction under the Foreign Sovereign Immunities Act.
Germany's appeal of that decision is now pending in court.
Mr. Chairman, the House and Senate have both passed unani-
mous resolutions on my behalf and continue to support me in var-
ious ways. Such press on CBS, CNN, and the Washington Post
have run major pieces on my plight. The American Jewish commu-
nity has rallied
Senator Heflin. Mr. Princz, we do have a time problem and if
you would summarize in about a minute, Congressman Pallone, I
understand, has come in and he was going to introduce you. Maybe
we will give him a word or two, so if you will summarize in about
a minute, please.
Mr. Princz. OK; perhaps most important, the President and Vice
President have each personally appealed to the German Chancellor
on my behalf, while the Secretaries of State and Treasury have
raised my case with their German counterparts. I am gratified by
those efforts and that the U.S. calls my claim legitimate and com-
pelling, beUeves I deserve to be quickly compensated, and will keep
the case high on the U.S. -German agenda.
Regrettably, the Chancellor brazenly rebuffed President Clinton's
appeal in late January 1994, and Germany has indicated to the
U.S. in the courts that it has no interest in resolving my case. I
believe they want me to die first. Mr. Chairman, they couldn't kill
me before and they are not going to succeed now.
I expect the D.C. court to uphold jurisdiction, but this worry and
uncertainty, combined with the lack of diplomatic movement, high-
lights the need for a legislative fix to permit my case to proceed
and thereby provide the State Department leverage to bring Ger-
many to the negotiating table or face a public trial.
The Schumer language from H.R. 934, the comparable House
bill, should be added to S. 825 to permit American genocide victims
to bring suit under the Foreign Sovereign Immunities Act against
the perpetrators of such crimes. Only for this genocide exception is
there no statute of limitations. The only criterion is that the victim
be a U.S. citizen at the time of injury.
Mr. Chairman, even such a provision became law so that my suit
went forward, it would never bring back my family, nor relieve my
nightmares of the camps and the physical pain I still suffer. It
would never change that. I have spent 40 years fighting for justice,
time in which my family has suffered greatly because Germany
continues to wage war against me because I am an American citi-
But this bill, Mr. Chairman, would, if amended, help correct a
terrible injustice, an injustice inflicted upon me as an American
Jew whose citizenship did not protect him from the Nazis in 1942
when it should have, and which perversely continues to be used by
Germany as a shield to shirk its responsibility to me today.
[Hugo Princz submitted the following materials:]
Prepared Statement of Hugo Prinz
Mr. Hugo Princz appreciates the opportunity to comment on the need for amend-
ments to the Foreign Sovereign Immunities Act. Mr. Princz has engaged in a 40-
year effort to obtain reparations from the Federal Republic of Germany for crimes
against humanity committed against him while incarcerated in Auschwitz and Da-
chau as a U.S. national.
The President, Vice-President and Secretary of State of the United States have
personally interceded, to no avail, at the highest levels of the German government
on behalf of Mr. Princz. Their thwarted efforts demonstrate the necessity for amend-
ments to the Foreign Sovereign Immunities Act ("FSIA ") which would support the
Department of State in its efforts to obtain compensation for U.S. nationals
extralegally injured by foreign states in the course of state-sponsored genocidal and
Mr. Princz and his family were American citizens residing in Europe during
World War II. In 1942, they were arrested by the Nazis who, ignoring tneir valid
U.S. passports — which should have made them part of an International Red Cross
civilian prisoner exchange then underway — on the ground that they were Jewish
Americans, instead deported them to concentration camps where all were
exterminated except for Mr. Princz. He was liberated in 1945 by U.S. Army person-
nel which recognized him as an American by the "USA" stenciled on his camp garb
by German authorities.
Having come to the U.S. in 1946, Mr. Princz made timely application in 1955 to
the reparation program set up by Germany post-war. However, the German govern-
ment refused him a survivor's pension or other reparations in 1955 and throughout
the intervening 40 years solely because, as an American survivor of the camps, he
did not — and does not — fit the German criteria for reparations eligibility. Having ex-
hausted diplomatic remedies, he was therefore forced to sue Germany in Federal
District Court in Washington in March, 1992.
This testimony is divided into two parts. The first part is a statement from Mr.
Princz telling the story of his capture, incarceration and attempts to obtain repara-
tions after the war. The second part is a statement from Mr. Princz' co-counsel, Ste-
ven R. Perles, Esq., of Steven R. Perles, P.C. and William R. Marks, Esq., of Powell,
Goldstein, Frazer & Murphy, discussing the legal, diplomatic and historical back-
ground of the Princz case and the deficiencies in the FSIA which warrant a "geno-
cide" exception. Also discussed by counsel are suggested technical changes related
to the application of the collateral order doctrine and Federal Rule of Civil Proce-
dure 60(b) to Foreign Sovereign Immunities Act litigation which, although unrelated
to the problem of jurisdiction, the Subcommittee may wish to consider concurrently
with the proposed amendments.
Mr. Chairman and Members of the Subcommittee: Thank you for giving me
the opportunity to tell my story before this Subcommittee and to state why I believe
the Foreign Sovereign Immunities Act ("FSIA ") needs to be changed, based upon
my experience as an American Holocaust survivor seeking reparations from the Fed-
eral Republic of Germany ("FRG ").
As you may know, after the Department of State exhausted all then-available dip-
lomatic remedies, I sued the FRG in Federal District Court here in Washington be-
cause of my enslavement by the Nazis in a series of concentration camps during
WWII, the murder of my entire American family, and the refusal of the FRG to pro-
vide me with reparations as it has others who were German or European nationals
during the Holocaust. Some 50,000 survivors who becanie naturalized U.S. citizens
after the War have been receiving the benefits I am seeking.
I also want to commend Senator Specter for his leadership in crafting S. 825 and
his support of the principle that American citizens who suffer serious injury abroad
at the hands of foreign governments should have recourse, under certain cir-
cumstances, in U.S. courts. Finally, I want pubhcly to thank your colleagues and
my two Senators, Senators Lautenberg and Bradley, for their outstanding and long-
standing leadership on mv behalf, and Senators Lieberman, Kerry of Massachusetts,
D'Amato and Dole for their strong and consistent support of my cause. On the
House side, my Congressman, Frank Pallone, also deserves special mention for lead-
ing my fight for compensation.
Following my prepared statement, I have attached a statement from my co-coun-
sel, Steven Perles of Steven R. Perles, P.C, and William R. Marks of Powell, Gold-
stein, Frazer & Murphy, who discuss the legal, historical and diplomatic background
of my case against Germany, as well as the deficiencies in the FSIA which warrant
a "genocide" exception.
Mr. Chairman, my name is Hugo Princz. I am 71 years old, and live in Highland
Park, New Jersey. I was born in what is now Slovakia on November 20, 1922, to
an American businessman who, as was the style of the time, resided permanently
abroad. My father took all of the necessary procedural steps to assure my U.S. citi-
zenship at birth. At the time of the bombing of Pearl Harbor, I was an American
teenager resident in German-occupied-Europe and considered a "neutral alien" by
the Nazis. My family Hved a comfortable hfe. My father was a successful importer
of agricultural equipment, held extensive fairm and other real estate holdings and
owned a general store.
The bombing of Pearl Harbor changed our residency status in Slovakia from neu-
tral alien to enemy alien. Some ninety days later, we were arrested by the Nazi SS.
My father showed our captors our valid U.S. passports and other official papers
proving our American citizenship. These papers should have made us immediately
eligible for an International Red Cross civilian prisoner exchange then underway.
Instead, a Nazi officer tore up our papers, spit on them and said, "You are just
Jews. The Americans don't want you back anyway." As a result, we were all de-
ported to the Maidanek Concentration Camp. From there, my parents and sisters
were sent to Treblinka, an extermination center. I never heard from them again.
My two younger brothers and I were found fit enough to be slave laborers and
were sent by cattle car to Auschwitz, where we were formally "registered" as Amer-
ican Jews. My nationality, "USA", was stenciled across the chest of my prison garb.
We were put to work as slave laborers at the Auschwitz-Birkenau synthetic fuels
plant. One of my chores, among others, was collecting dead bodies and stacking
them like lumber for subsequent incineration. Both brothers — including one who
was only 14 years old — were intentionally starved to death in the so-called "hos-
pital" at Auschwitz after suffering work-related injuries. Mr. Chairman, I will never
forget the sight of my 14-year-old brother in that hospital as long as I live * * ♦
a living — and then dying — skeleton.
From Auschwitz, I was sent to the Warsaw Ghetto to help "clean" it up after the
uprising and salvage from the rubble whatever could be of use for the Nazis. After,
I would participate in one of the War's "death marches"— from Warsaw to Dachau.
At Dachau, I was enslaved in a Messerschmitt underground aircraft factory. We
had little news of the War, except that the factory was being bombed nightly. One
day I was selected for a work detail on the surface repairing bomb damage; it was
still light outside. To my surprise, I heard bombers. I then realized the Germans
had run out of ammunition — Allied day-time bombing had begun. I knew the war
would soon be over. As the bombers approached, I saw they were American. In an
act of euphoria, I started cheering and dancing about as my own countrymen
dropped bombs on me. ^ , .
Near the War's end, the Nazis — seeking to obUterate all evidence of their war
crimes — selected me for execution. I was loaded onto cattle cars with others who had
been selected and sent toward certain execution near the Swiss Alps. This train, mi-
raculously, was intercepted by U.S. Armed Forces; I will never forget the day, the
hour nor the minute of my rescue.
The Army, recognizing me as an American by the "USA" stenciled on my camp
garb— the Nazis throughout my incarceration knew I was an American Jew, for ex-
ample having identified me as such on my Auschwitz identity card, which is now
in Yad Vashem in Israel— sent me to a U.S. military hospital for immediate treat-
ment. While that action probably saved my life, it would later pose a serious prob-
lem for my ability to receive reparations from Germany.
My entire family having been exterminated, I arrived in the U.S. in 1946 in order
to try and rebuild mv Hte. With the help of relatives in Pennsylvania, I was able
to find a footing, and ultimately married my lovely wife, Delores, in Pittsburgh in
As a matter of historical note, while my Pennsylvania relatives were canng for
me, the Czech Communists were busy stealing my father's real estate holdings and
other assets that survived the war. The United States Foreign Claims Settlement
Commission provided me with prorated compensation for that loss — some $12,000.
I have never received anything for my family's loss at the hands of the Germans.
In 1955, the Germans initiated its compensation programs for survivors of the
camps, as a condition of the return of its sovereignty. I made timely application for
that pension program. However, I was refused because, as an American citizen
when capturea and later rescued, I was not considered a "stateless" person, was not
processed through a Displaced Persons Camp and was not present in Germany on
the qualifying date of January 1, 1947, all of which were mandatory German cri-
teria for reparations eligibility. The fact that they could have expected me, after all
I had been through, to remain in Germany almost two years after I had been liber-
ated is absolutely astounding; I wanted to leave that country as fast as I possibly
The FRG has steadfastly denied me my pension in the intervening 40 years, de-
spite the best efforts of (Jongress— including, as early as 1984, Senator Bradley—
the State Department and others, and even though I believe I am the only known
survivor in my situation. Germany has thrown up as many procedural roadblocks
as it possibly can, and continues to this dav to blame me for failure to obtain com-
pensation, an assertion totally contradicted by the facts.
After exhausting every conceivable diplomatic avenue, and in consultation with
my litigation attorney, Mr. Perles, I decided to sue the FRG in 1992 in Federal Dis-
trict Court here in Washington. I simply felt I had no other alternative. In Decem-
ber, 1992, United States District Court Judge Stanley Sporkin denied Germany's
motion to dismiss for lack of jurisdiction under the FSIA. Germany immediately ap-
pealed that decision, and I am awaiting the decision of the United States Court of
Appeals for the District of Columbia Circuit.
I consider myself fortunate, Mr. Chairman, because my case has caught the atten-
tion of Congress and the current Administration in ways I could never have
dreamed of just a few months ago. Indeed, thanks in large part to the tireless efforts
of Mr. Perles and Mr. Marks, the House and Senate have both passed unanimous
resolutions on my behalf and continue to support me through letters and in other
ways; the American Jewish community has rallied behind me; and, perhaps most
important, the President and Vice President of the United States have each person-
ally appealed to the Chancellor of Germany on my behalf, while the Secretary of
State and Secretary of the Treasury have raised my case with their German coun-
terparts. Indeed, the U.S. has taken the position that my claims are "legitimate and
compelling", that I deserve to be "quickly compensated , and that the case will re-
main "high" on the U.S. -German bilateral agenda until it is resolved.
Regrettably, Mr. Chairman, Germany refuses to budge. The Chancellor brazenly
rebuffed President Clinton's appeal in late January, 1994, and Germany has basi-
cally told the U.S. and the court that it has no interest in negotiating a settlement
in, or otherwise resolving, my case. Indeed, we believe they are counting on winning
their appeal before the court so that the case is dismissed and they can then ignore
me completely; either that or they want to drag it out so long that I die. Let me
say this emphatically: they couldn't do it before, and they're not going to do it now.
We remain confident that the court will uphold the finding of jurisdiction. None-
theless, the very uncertainty associated with the process suggests that there should
be a specific legislative "fix" to this problem, which would not only permit me to
bring my case to trial, but would also provide the State Department with the lever-
age necessary to try and force Germany to come to the negotiating table now so that
it avoids a very public trial later. Such a fix would simply take the language from
the comparable House version of Senator Specter's bill, H.R. 934, to permit Amer-
ican victims of genocide to bring suit, under the FSIA, against the perpetrators of
Mr. Chairman, even if such a bill were to pass and be signed into law, it would
never bring back my family. It would never relieve my nightmares of Auschwitz, Da-
chau, the Warsaw Ghetto and what I saw there. And it would never change the fact
that i have spent forty years fighting for justice, forty years in which my family has
suffered greatly because of Germany's continuing callousness toward me. But it
would, Mr. Chairman, help correct a terrible injustice, an injustice inflicted upon
me, as an American Jew, whose citizenship did not protect him from the Nazis in
1942 when it should have, and which perversely continues to be used by Germany
as a shield to shirk its responsibility to me today.
We represent plaintiff-appellee Hugo Princz in an action against the Federal Re-
public of Germany ("FRG ") currently pending before the United States Court of Ap-
peals for the District of Columbia Circuit. Mr. Princz seeks to recover compensation
from the FRG for the injuries inflicted upon him while he was enslaved in the noto-
rious Nazi death camps of Auschwitz and Dachau. This compensation has been re-
peatedly denied him by the FRG because of his American citizenship at the time
of his capture by the Nazis and later rescue by the U.S. Army. In addition to the
litigation, we have been actively involved in efforts with the Legislative and Execu-
tive branches to facilitate a settlement in the case.
The Department of State has characterized Mr. Princz' claim for compensation as
"legitimate and compeUing". However, in spite of the personal efforts of President
Clinton, Vice President Gore and Secretary Christopher, the German government
remains stalwart in its refusal to accept financial responsibility for the consequences
of that nation's violations of all norms of international law against a U.S. national.
Although we are confident that the Court of Appeals will affirm the decision of the
U.S. District Court below finding jurisdiction in the case, the inability of the best
United States diplomatic efforts to sway the FRG underscores the necessity of
amending the Foreign Sovereign Immunities Act ("FSIA ") to provide judicial relief
if diplomacy fails. Without it, the Department of State is relegated to the role of
the well-intentioned but ineffectual "paper tiger".
Mr. Princz' statement describes in detail the circumstances of his capture and
subsequent enslavement by the Nazis, and his liberation by the U.S. Army. We
therefore will not go into that here, except to underscore that his ability to survive
such horrors helps explain why, forty years after liberation, he continues fiercely to
fight for what is rightfully due him as a Holocaust survivor.
Mr. Princz made timely appUcation in 1955 to the reparations program set up by
Germany, as a condition of the return of its sovereignty. However, his claim for a
survivor's pension was denied because when his U.S. Army liberators recognized
him as an American and sent him to a U.S. Army hospital— and ultimately to the
United States— instead of to a "Center for Displaced Persons", he no longer met
Germany's mandatory criteria for reparations eligibility: he was not considered a
"stateless" person, was not processed through a Displaced Persons Camp and was
not present in Germany on the qualifying date of January 1, 1947. The FRG has
steadfastly denied Mr. Princz his pension in the intervening 40 years, despite the
best efforts of Congress, the State Department and others, and even though we be-
lieve he is the only known survivor in nis situation.
Following the exhaustion of diplomatic remedies, Mr. Princz filed suit against the
FRG in March 1992. In December 1992, Judge Stanley Sporkin of the U.S. District
Court for the District of Columbia denied Germany's motion to dismiss for lack of
jurisdiction under the FSIA. Germany immediately appealed that decision, pursuant
to the collateral order doctrine; a decision from the Court of Appeals for the D.C.
Circuit is currently pending. In Diplomatic Notes and Executive Branch correspond-
ence introduced into the record of the judicial proceedings, the Department of State
has repeatedly described Mr. Princz' claims as "legitimate and compeUing, and
stated that he deserves to be "quickly compensated" and that the case will remain
"high" on the U.S. -German bilateral agenda until it is resolved.
Germany's failure to accept financial responsibility towards Mr. Princz simply be-
cause of his American citizenship at the time of his capture and later rescue, when
it has distributed biUions in compensation to other Nazi death camp survivors, led
to the introduction of S. Res. 162, a resolution relating to Mr. Princz, in early No-
vember 1993, by Senator Lautenberg and Senators Bradley, D'Amato, Lieberman
and John Kerry, later joined by Senator Dole. H. Res. 323, a companion resolution,
was introduced in the House on November 21st by Rep. Frank Pallone (D-NJ) and
a number of co-sponsors.
S. Res. 162 passed the Senate by unanimous consent on November 21, 1993. H.
Res. 323 passed the full House unanimously on January 26, 1994. Both resolutions
called upon President Clinton and Secretary of State Cluistopher to raise the Princz
case witn the Chancellor and Foreign Minister of Germany, respectively, and to take
all appropriate steps necessary to ensure that fair reparations are expeditiously pro-
videa Mr. Princz. The same message was communicated by the American Jewish
community on December 27, 1993, when a letter signed by the presidents of a dozen
maior Jewish organizations urged President CUnton to discuss the Princz matter
with Chancellor Kohl at the January 1994 NATO Summit. A number of bipartisan,
bicameral Congressional letters, initiated by Senators Lautenberg, Bradley and
Lieberman and Congressman Pallone, and signed by numerous other Senate and
House members, have since gone out to the President and Secretary of State urging
forceful Administration action on behalf of Mr. Princz. Several of these letters are
attached for the Subcommittee's review.
In response to these entreaties, the Clinton Administration renewed attempts to
achieve a diplomatic resolution of this matter, including conducting face-to-face dis-
cussions between President Clinton and Chancellor Kohl. The D.C. Circuit entered
an order effectively issuing an administrative stay of proceedings during the CUn-
ton-Kohl discussions and me broader U.S. -German diplomatic dialogue and ordered
the parties to report on the outcome of that acti-"ity. Chancellor Kohl rebuffed the
President's request at their luncheon held here in Washington on January 31, 1994.
Germany affirmed its decision to rebuff President Clinton oy sending its Diplomatic
Note of February 2, 1994 to the State Department, indicating that it had no inten-
tion of negotiating a settlement in, or otherwise resolving, the Princz case. Both we
and the Germans independently reported to the Court the failure of these diplo-
matic discussions. As of this date, the German Government persists in its refusal
to be held accountable for the injuries it admittedly inflicted on Mr. Princz.
The Administration and especially the Department of State deserve the highest
praise for their repeated and forceful advocacy of Mr. Princz' claim. Unfortunately,
this diplomacy has not yielded the desired results and, in light of continued German
intransigence, seems unlikely to succeed. This reality therefore underscores the ne-
cessity tor clarifying amendments to the FSIA to permit suit against foreign govern-
ments which have committed crimes against humanity against United States citi-
zens, yet refuse to negotiate reparations in good faith with the Department of State
or, in this case, the President of the United States.
Under international law, individuals have a right not to be deliberately and wan-
tonly injured by a foreign state's commission of a crime against humanity, even
while within that state's territory. This is recognized as jus cogens — a peremptory
norm of international law. The United States Constitution specifically incorporates
such rules into the law of the land. Since U.S. law recognizes this right, remedv
in the form of a civil cause of action against the off'ending state should also be read-
ily available to similarly-injured American citizens.
The current language of the FSIA, as it has been interpreted by the federal
courts, leaves the proper avenue for relief unsettled. As Judge Edwards has written,
the Foreign Sovereign Immunities Act is "an area of the law that cries out for clari-
fication by the Supreme Court. We confront at every turn broad and novel questions
about the definition and appUcation of the 'law of nations"'. Tel-Oren v. Libyan Arab
Republic, 726 F.2d 774, 775 (D.C. Cir. 1984), cert, denied, 470 U.S. 1003 (1985). A
decision of the Second Circuit Court of Appeals further unsettled the issues and un-
derscores deficiencies in the FSIA's current language. Even egregious actions such
as Iran's taking of diplomatic hostages has been found insufficient for the invocation
of jurisdiction. See Persinger v. Islamic Republic of Iran, 729 F.2d 835, 843 (2nd
Cir.), cert, denied 469 U.S^ 881(1984) ("The heinousness of Iran's actions, however,
is not sufficient to give this court jurisdiction to hear the plaintiffs' claims. ").
In the Princz matter, for example, the only issue in contention is whether Ger-
many enjoys immunity from suit in tort before U.S. Courts for its outlaw acts during
the Nazi regime. Given that Grermany does not deny the factual allegations of Mr.
Princz' complaint, the sole impediment to Mr. Princz receiving federal court-ordered
reparations is Germany's belief that it enjoys absolute immunity from suit in the
United States, even for jus cogens violations committed against a United States na-
tional. Thus, the question which ultimately remains after Persinger, Tel-Oren and
now Princz is whether the U.S. will continue to allow outlaw nations — or in Ger-
man's case, a former outlaw nation— to rebuff the efforts of the Executive Branch
to negotiate reasonable compensation for American victims of jus cogens violations,
secure in the knowledge that their obstreperous conduct is of inconsequential legal
effect in the United States. .
Public policy would be well-served by the amendments to the FSIA proposed in
S. 825. First, it would clarify an area of the law which, at best, could be presently
described as muddled and uncertain. . ,. .
Second, the effect of clarifying the law and affirming federal jurisdiction over
Princz-type actions would be to give real "teeth" to the State Department m restitu-
tion negotiations. If the Department of State had the ability to certify a restitution
claim for judicial review, it would significantly enhance its negotiating leverage with
the foreign sovereign. Currently, the State Department has Uttle leverage; for all
its efforts, it still has not been able to get Germany to approach the bargaining
table. German officials have rebuffed the efforts of all those working on Hugo
Princz' behalf, including President Clinton, Vice President Gore, Secretary of State
Christopher, and many members of Congress, aware that their refusals to negotiate
will not have adverse legal consequences for them in the United States.
Third, these amendments would also reinforce the United States' strong stand
against terrorism. By assuring the remedy of a civil cause of action against any for-
eign state engaged in such outlaw activities, they might cause the forei^ state to
give pause prior to embarking on a course of egregious conduct. At a minimum, the
amendments would serve as a tool of deterrence in the State Department's diplo-
To strengthen these salutary effects, we would suggest that the Subcommittee
consider revising these amendments to assure a remedy for Americans injured dur-
ing foreign state-sponsored genocidal activities, as was Mr. Princz. Germany's con-
duct during WWII was a far more outrageous violation of the norms of international
law than are today's terrorist acts. Such changes might parallel the amendments
sponsored by Representative Schumer of New York in H.R. 934, which have been
adopted by the House Judiciary International Law Subcommittee, chaired by Con-
gressman Mazzoli. u- u •
We would also draw to your attention two procedural developments which impose
significant obstacles, in the form of delays, increased costs, and uncertainty, to all
plaintiffs in litigation involving the FSIA, including commercial claims. Although
not directly related to the problems of jurisdiction, these developments may be rel-
evant to the Subcommittee as it considers amending the Act.
First, the D.C. Circuit in the Princz matter, consistent with other Circvut Courts
of Appeals, ruled that under the collateral order doctrine, a foreign sovereign may,
as a matter of right and without regard to the merits, appeal an adverse foreign
sovereign immunity determination prior to trial (at the time normally reserved for
interlocutory appeals). The effect is to delay every FSIA trial on the merits pending
lengthy and expensive appeals on the issue of jurisdiction. This is facially inconsist-
ent with the intended purpose of the FSIA— to put foreign government litigants on
an equal footing with private party litigants. If Congress were to amend the Act to
prohAit collateral order doctrine appeals, foreign governments, like private party
litigants, could still appeal the denial of their motion to dismiss on an interlocutory
basis, with the certification of the trial judge. If the trial judge refuses to certify,
relief may be obtained at the appellate level under the All Writs Act, whereunder,
upon a showing of error, the appellate court may grant a writ compelling the trial
judge to certify the issue. Mexico, for example, has obtained such relief in the Ninth
Circuit. See, Compania Mexicana de Aviacion. S.A. v. United States District Court
for the Central District of California, 859 F.2d 1354 (9th Cir. 1988).
To put this problem in perspective, before the Circuit Court of Appeals began to
apply the collateral order doctrine to foreign sovereign immunity determinations,
the question of immunity ordinarily could be appealed only after trial. For example,
Germany, in a case arising out of a tree falling from its Embassy's property onto
a public right-of-way and killing a passerby, lost the initial foreign sovereign immu-
nity determination in the district court, was denied the opportunity for interlocutory
appeal because the questions presented were not novel nor concerned unsettled
questions of law, and promptly thereafter settled the case.
In the Princz matter, however, Germany lost the initial immunity determination,
took an appeal of that adverse decision as of right under the collateral order doc-
trine, and in spite of the entreaties of the State Department and the President of
the United States, still refuses even to begin negotiating in good faith to settle this
claim. There is a clear correlation between the German change in attitude towards
settlement negotiations and the D.C. Circuit's change in philosophy, in the interven-
ing years, regarding the application of the collateral order doctrine to immunity de-
Although not an issue in Princz, the Subcommittee should also be aware that in
cases where a foreign state chooses not to appear and assert the defense of foreign
sovereign immunitv. Federal Rule of Civil Procedure 60(b) (4) and (6) have been in-
terpreted to provide a vehicle to set aside a default judgment in FSIA cases. The
normal time limitation of one year for a Rule 60 motion does not apply to subpara-
graphs 4 and 6. Thus, Rule 60 has been interpreted to provide relief for foreign
states which initially declined to appear at any time after the default judgment had
been entered against it, thereby rendering supposedly "final" judgments subject to
rehtigation on tne issue of immunity at the whim of the foreign state.
The availability of both the collateral order doctrine and Rule 60(b) relief from
judgments to foreign state defendants entrenches perverse incentives to use the
issue of immunity as a dilatory tactic. These procediu-al advantages place opposing
private party litigants at a severe disadvantage — uncertainty, delay, and significant
expense. In the Princz matter, for example, even though the case is being heard on
expedited consideration, we have been litigating in excess of two years, have won
the sovereign immunity determination at the trial level, had a trial scheduled, had
the time wnen most disputes settle (between the time of the ruling on dispositive
motions and the trial date) eclipsed, and now face the prospect of protracted appel-
late and possibly Supreme Court review. Private party litigation would have already
gone to trial. As a result of these procedural advantages, Germany has no interest
in settling this matter.
In a situation such as Mr. Princz', as with cases involving state-sponsored terror-
ist attacks against U.S. nationals, a foreign state has committed an extralegal act
against a United States national. There is no logical reason why the United States
should be concerned with the possibility of offending that sovereign when causing
it to be subject to the jurisdiction of the federal courts to answer for such heinous
conduct. 'The comity between nations giving rise to foreign sovereign immunity con-
templated by Justice Marshall in the Schooner Exchange v. M'Faddon & Others, 11
U.S. (7 Cranch) 116 (1812), would already have been breached.
■rhe extralegal act committed against Mr. Princz constitutes a fundamental breach
of international comity. Germany's subsequent refusal to cooperate with the State
Department to resolve the matter amicably only exacerbates the breach. If the per-
sonal suasion of the President, Vice President, and Secretary of State have no im-
pact on a reformed outlaw state such as the FRG, how could diplomacy be expected
to have any efTect on those states which actively support terrorist activities? Mr.
Princz' unfortunate case history serves as a chilling example of the need for legisla-
United Sum D«paran*«t of Sui«
tTuJUAgtca. D.C 20S20
APR 2 094
DSar Senator Laute.-iberg:
The Secretary has askcfl n« to reply to your letter of A?ril
«, 1994, urging that th« State Dapartment cooslder filing a
stsceraent of interest la auppoct of Mr. Huqo Prlncs in the cace
at Pringg V. Tha Federal BennnH^ nf a«r.n,ny the Departnef-t
■ppceclatas the concerns reflected in your latter *na sharei
your desire ta tind a way to obtain for Mr. Princr just
cerpanaation <or hla claim.
Since the enactment ot the Foreign sovereign Iconoinltlea Act
in 1976, determinations of irmualty of foreign otatss are eiade
by Che courts, and cot the Departnant ot State. While the
United States soinetinea files amirua briefs ezpraiging its
viewa as to the Intercret at Ion of tha FSIA, such ciSea are
lelatively Infrequent. We have carefully reviewed the issues
Involved in this case and have discussed tn« case en varioua
occasions with counsel Cor both parties. Mo have alao
conauiced closely with the Department of Juetice. Having
conaldered tha Batter, however, we do not plan to participate
In the appeal presently pending before the U.S. Court ef
Appeals tot the District of Colunbio. Our attorneys In rhe
Office of the Legcl Adviser have dlecusBeC with your stiff the
itaues presented 1& the court case.
Revertbelesi, I wlah to acsuce you that notwithstanding our
decision not to file a statenent of interest in this case, we
continue to vigorously pursue other avenuei to assist Nr.
Pclaez. Specifieally> we are etlll pressiof et the highest
levels of tha cernan goveronent our view that Mr. Princz should
be quickly conpeAsated through a subntBBtiil ax-gratla
payment. Zn this regard, on April 5, AAbassador Holbrooke
ur««4 la • ■••tin4 with MFA istace Secretary Kaatrup that
Germaa^jieefc to fashion a settleaient with Kr. frlaes* coxiaaal ,
The 6*o»itkr7 will advocate tu. Prince' Xegitlaate and
coapvlltUs clalia la a Beetia^ with Poretgn Minister XinJcel
April 31. Is addition, should the Deputy Secretary see Cerman
Flnanc* Minister Waigel during the latter 's attendance at the
IBRD/IMT talRS In WaahingbOD, we egalA plaa to raise the Prince
rra&k S. Lautenb«rg>
United States Senate.
Wa ire alao racocnandinq tbat Aro«rlctn ptrliiBABttrliaK
tttending th« north Atlantic Att«rujly gBthatlnj in Mir Mpr«ti
th.ir auppcrt foe a Juat resolution ot Hr . PilMa" cUlm to
thalr GacwJB counterparta . Th« Prinoa caoe will renaln biflh on
out dioloMtic agenda with GBrmany until auch tlma thare la i
satisfactory aettlemant .
W« hopa thia inJotmatlon has b««n useful to you. PJaiea Oo
not haaitata to contact ua If we can ta of fuTthar asalsttnca.
Wendy C. Qharmsr.
FRANK S LAUTENBEBG i— ^u
ENVIAONMeNT AND PUBLIC WOIK
Bnited States ^tnm
WASHINGTON. DC 205 10-3002 HELSINKI COMMISSION
April 4, 1994
The Honorable Warren Christopher
Secretary of State
Department of State
Washington, D.C. 20520
Dear Secretary Christopher:
We are writing to urge the State Department to consider
filing a "statement of interest" in support of Mr. Hugo Princz in
the case of Princz v. The Federal Republic of Germany , which is
pending before the United States Court of Appeals for the
District of Columbia Circuit. If you conclude that this action
is appropriate, we believe it would complement the United States
Government's significant diplomatic efforts on this case and help
ensure that Hugo Princz 's claim will" be fairly resolved.
As you know, Hugo Princz is an American citizen who has been
unable to obtain fair reparations from the Government of Germany
in compensation for his time in Nazi death camps. In 1992, Mr.
Princz filed suit against the German Government in the United
States District Court for the District of Columbia. The District
Court subsequently denied Germany's motion to dismiss the suit
for reason of foreign sovereign immunity and set the case for
trial. Germany appealed to the United States Court of Appeals
for the District of Columbia Circuit, where the matter is now
Meanwhile, with our support, you and others in the
Administration have actively pursued diplomatic opportunities to
resolve this matter. As you know. President Clinton raised the
matter with Chancellor Kohl during their luncheon meeting here on
January 31. We commend you for your efforts and commend the
President for taking up Hugo Princz 's case directly with the
Chancellor. We know from Assistant Secretary Sherman's response
to our February 16 letter to you that you share our profound
disappointment over the Chancellor's rebuff of the President on
Like the Administration, we are frustrated that the German
Government has not been more forthcoming. Both the Senate and
the House of Representatives have unanimously passed resolutions
calling on the President to intercede on Mr. Princz 's behalf with
the German Chancellor and on the German government to provide
fair reparations. In the wake of the President's unsuccessful
intercession with the Chancellor, Assistant Secretary Sherman's
letter assures us that this case remains on the diplomatic agenda
"MIT TO and that "Mr. Princz 's legitimate and compelling claims should be
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The Honorable Warren Christopher
April 4, 1994
speedily resolved." Unfortunately, the German Government is not
responding to our country's diplomatic efforts.
We believe the Administration should, despite the German
Government's apparent unwillingness to right this vnrong, continue
its efforts on Mr. Princz's behalf. In this regard, we hope the
State Department will look carefully at the possibility of urging
the Justice Department to file a -statement of interest" in the
case and, if the facts warrent, file such a statement. We hope
the Justice Department will agree, and we have written Attorney
General Reno in this regard.
Please let us know how you decide to proceed. We appreciate
your attention to this matter.
Robert G. Torricelli
'Howard L. Herman
bh 1 . Cleberman
Charles B. Schumer
The Honorable Warren Christopher
April 4, 1994
Lot L. Qigel
Elioc L. Ehge
Michael R. McIW.cy
THE WHITE HOUSE
March 30, 1994
Dear Senator Licbcrman:
ifianlc you for your letrer concerning Mr. Hugo Princz and fiis
claim for compensation from Germany for the suffering he endured
in Nazi death camps .
We believe Mr. Princz deserves compensation and have repeatedly
urged Bonn to maka a BignificanC ex gratia payment to resolve the
case. As you know, the President personally raised the issu*
with Chancellor Kohl in January, We are disappointed that the
German Government has yet to settle Mr. frincz's reparation ciaitr
despite these official and other representations on his behalf
I can assure you that Mr. Princz 's case is an important issue on
our bilateral agenda with Germany and that ve will continue to
pres.o; TMf. view that his legitimate and compelling claims should
speedily be resolved.
Samuel R. Berger
Deputy Assistant to the President
for National Security
The Honorable Joseph I . Lieberman
United States Seoace
Washington, D.C. 20510
Umwd States Department of State
FaiKingtox D.C 20520
D«ar Senator Liebaman:
Thank you for your letter cf February 16 regarding t^e
claim by American citi?«n Hurjo Princi for comp«n«ation from
Germany for his suffering in Nazi concentration camps.
The Sta^e Department's firm position is that Mr. Princi
should be compensated for the persecution he suffered at the
hands of the Naiis. we have repeatedly recommended that Bonn
malce a significant ex gratia paj-ment to resolve this case, and
have offered our good offices to promote resolution.
We are very disappointed that the German Government has
yet to settle Mr. Princi' reparation claim despite repeated
higtv-l«v«l diplomatic repreoentationSr including one by
President Clinton January 31, urging them to do so.
This tragic case remains on our diplomatic agenda witn
Germany. We will continue to press the view that Mr. Princi'
legitimate and compelling claims should be speedily resolv«d.
We hope this information is helpful to you. If you need
further aa^iftance in this or any other fflaccec, please let us
Wendy R. Sherman
United States Senate.
FRANK K LAUTfNBtRG '■ • —
■- * __ ^^ IMVmONMINt ANO HJ»lK WC«i
United ^tmi Senate
«T*T»«. CMMM WASHINGTON. DC 20 510-3002
Pearuary 16, 1994
The Honorable Warr«n ChrlBtophar
Secr*t.«x-y of Stare
The State Deparunent
Waahington, D.C. 20520
D«ar Secretary Christopher:
We are writing to you about t)i« case of Mr. Hugo Princz, an
American citizen who has been unabi.e to obtain fair reparations
froa the Govammont of Carmany in <:oinp«n»aticn Cor hia time in
Nazi death caaipe . This case haa long been the subject of high-
level diecuasion between the governments of the United States and
Germany, aott recently between Preuident Clir.ton and Chancellor
Kohl during their luncheon meeting here. We Jcnow that you and
Anbassadbr Holbrooke have also been deeply ir.voLved in this.
First, we want, to expresa our appreciation to the President
for raising this Issue with the Chancellor, we know how cro-jded
the agenda was for that short meeting, and we deeply appreciate
the Preaident's responsiveness to cur request.. We also know how
very much it meant to' Mr. Prlncx.
Unfortunately, Chancellor Kohl did not respond to President
Clinton's re<;uest for a more reaaonaile Germ«u.T response to Mr.
Princz '8 pUciht. Nor did he respond to our direct plea for fair
reparations.' By handing the President a "Note Verbale' simply
reiterating the German OoveriuBent ' • rigid refusal to pay Mr.
Princz fair reparations, we believe Germany insulted both the
President and the Dnlted States. Certainly, It was an additional
insult to Hugo Princz.
Hugo PrinCB's caee deserves a setter reoponse. To that end,
w« *«iuld liXa to know how the United States Government intends to
respond to Germany's lack of meaainjful response to President
Clinton's request concerning Mr. PrLnez.
Hugo Princt and his family livjd in Europe at the outbreak
of World War II. Although United 6 --ates citixenn Md. civilians
at the time, Mr. Princz and his fam-cly were arrested as enemy
aliens of the German Government in .jarly 1942. Despite the
prote6t« of Mr. Prtnc«'a father, thu government of Germany
refused to honor the validity of th.j Prlncs family's United
M k4»« Slwen Or«eCI »V^m*^
^^-^OJm i.ri-r-i I HJ M
The Honorabl* Hacran Chriat.oph*r
February 1£, 1994
The Princz faoily were Jewish American*. Consequently, the
Government o£ Geos&ny would not re -Um them to t:h*.Unlt»d States
although a civilian prisoner excha.ige program was available
through. the International Red Croe.j: Instead, the Princa family
was' sent to the Maidanek concentra :lon cunp in Fol&nd. Kr.
Princz 's father, mother &nd sister were shipped to Treblinka
death camp and exterminated.
Mr. Princz and his two younge:: brothers were transported by
cattle car to Auschwitz to serve aii slave laborers. At.
Auschwitz, Mr. Princz was forced tt> watch as his two brothers
were starved to death while they l<iy injured in a camp hospital.
Mr. Princz was subsequently transft^rred to a camp in Warsaw and
then, by death mairch, to the Oachavi slave labor facility.
In the closing days of the war, Kr. Princz and other slave
laboz-era w«xe selected for extermiiJition by Germany in an effort
to destroy Incriminating evidence c£ war crioies . Fortunately,
hours before Kr. Princz 's schedulec execution, hie deatit train
wsa Intercepted and liberated by United States armed forces
U.S. personnel recognized Kr. Princz as an American by the
designation 'USA* stenciled by the Germans on his concentration
camp garb, and he was' sent to an Aaierican military hospital for
ijtanedlate treatment. .
Because Kr. Princz was given lamediate medical treatiaent, he
was never processed through a 'Centtr for Displaced Persons."
This process would later affect his eligibility to racaive
reparations for hla suffering.
Following his hospitalization, Mr. Prtnci was pecaJLtted to
eoter tben-communlst-occupied CzechoslovaJda to search for family
members. After determining that he was the sole survivor, Mr.
Princz traveled to America.
In the early 1950's, the Federal Republic of G«niiany
established a reparations program for 'survivors.' Mr. Prince's
application was rejected because had not been classified as a
*at.iteles8* person or 'refugee.*
Had he been processed tbrough (he 'Center For Displaced
Persona' instead of receiving immediate medical care in a U.S.
facility, Mr. Princz would have rectiived tliia designation.
Instead, he has be«n considered a Oii-ted States national and,
therefore, ineligible for fair repajations.
Th« Honorabl* Warren Christophar
Februdry 16, 1994
Although th« Federal Rapublic of G«niiany has provided
reparations to thouaar.da of holoco ist survivors, Mr. Princz
haan't raceiv«d a dime.
. wa believe the reUeral Republ tC of Germany should recognize
tha injuBtice against Mr. Princa ajid pay him fair reparationa .
Mx. Princz has suf fared enough.
Last year, the Senate approval a resolution calling on the
German govarrunent to provide fair •.-eparatlon* to Mr. Hugo Princz.
A siTOiiar resolution passed the Housa of Representatives in late
January of this year.
The Federal Republic of Germany cannot bring back Hugo
Princz 's family or erase the painful memories of the tragic years
he spant in slava labor ciunpa of tlio previous German government.
But, the Federal Republic of Germany can and should acknowledge
Kr. Princz '8 tragic story and provj.de hijn with fair reparationa
which are long overdue .
PLeaea let us know what optlor.fl the Aflmlnl stration intends
to puiaue. to Btove this case along inflight of Chancellor Kohl's
refusal to provide fair repajrationt .' Thank you for your
attention to this matter.
Frank R.\ Lautenberg
Frank Pallona, Jr. *
liy^>>t G . TarrKJalU 1/ Bill Bradley ©
Th« Honorable Warrer Christopher
February 16, 1994
Banjarein *. Giim*n
Daniel Pacrick. MoyCihan
Henry A. Uaxnai*'
THE WHITE HOUSE
January 28, 19$ 4
Deir Joe .-
Thank you for your letter regarding the case
or Hugo prlncz.
I am aware of Mr. Princz's caE« and th«
interest it has generated among those who
seek its satisfactory resolution; I
understand that a legal decision is pending
As you may know, this Administration has had
several discussions with the government of
Germany regarding the case of Mr. Princz.
Most recently. Vice President Gore raised
this issue with Chancellor Kohl during their
December conversaticna Id Germany.
Thanic you tor bringing your Interest in
Mr. Princz's situation to my attention.
The Honorable Joseph I .
United StAteo Senate
Washington, DC 20510
December 27, 1993
The Honorable Bill Clinton
President of the United States
The White House
Washington, D.C. 20500
Dear Mr. President:
In advance of the KATO Summit in Brussels in mid-
January, and your meeting thisre wi-h Chancellor Kelir.ut
Kohl, we wanted to bring to your a-tention the case of
American Holocaust survivor Hugo Princz and to ask that
you raise this natter — of deep concern to the
American Jewish conmunity -- with Chancellor Kohl
Mr. Princz and his family were U.S. citizens residing
in Europe during World War II. In 1942, they were
arrested by the Nazis who, ignoring their valid U.S.
passports on the grounds that they were Jewish
Americans, instead deported them to ccncentration camps
where Mr. Princz's entire family was ir.urdered. Mr.
Princz survived, but only after interrjuent as a slave
laborer at Auschwitz and Dachau. He was ultimately
liberated in 1945 by U.S. Armed Forces while on a train
heading toward certain execution. The Army sent him to
a U.S. military hospital for treatment because it
recognized him as an American by the "USA" stenciled by
the Germans on his camp garb. While that action
probably saved Mr. Princz' life, it had troubling
consequences for his later ability to receive
Mr. Princz, having come to the U.S. in 194 6, made
timely application in 1955 to the reparations program
set up by Germany post-war. However, his claim was
denied, as was his participation in a pension program
for survivors, solely because -- as a U.S. natio.ial
when captured and later rescued who did not go through
a DP Camp — he did not "fit" the German criteris for
The Honorable Bill Clinton
December 27, 199 3
The German Government has steadfastly denied Mr. Princz
his pension in the intervening 40 years, despite the
best efforts of Congress, the Stato Department and
others, and even though he is the only known survivor
in his situation. He was therefore forced to sue
Germany in March, 1992, in Federal Court in Washington.
Germany's motion to dismiss the suit was denied by
the District Court, and its appeal of that decision was
recently heard by the D.C. Circuit.
Mr. President, Germany's failure to accept financial
responsibility to Mr. Princz simply because of his
American citizenship at the time of his capture and
later rescue — when it has distributed billions in
compensation to other Nazi death camp survivors and is
also providing pensions to farmer members of the
Latvian SS — is a serious injustice. Indeed, it
prompted introduction of S. Res. 162 in early Novem.ber
by Senator Lautenberg and Senators Bradley, D'Amato,
Lieberroan, and Kerry, later joined by Senator Dole.
This resolution passed the senate by unanimous consent
on November 20, 1993. It calls upon you and Secretary
of State Christopher to raise the Princz case with the
Chancellor and Foreign Minister of Germany,
respectively, and to take all appropriate steps
necessary to ensure that fair reparations are
expeditiously provided Mr. Princz. H. Res. 323, a
companion resolution, was introduced in the House on
November 21. Congressman Steny Hoyer did raise the
Princz matter with Secretary Christopher at a November
24 breakfast just prior to the Secretary's departure
for Europe, and we understand that it was raised with
German officials by a member of the Secretary's party.
We believe that your personal intervention and that of
Secretary Christopher — in conjunction with Concress
— is essential to produce some tangible measure of
relief for Mr. Princz's suffering, especially in light
of Germany's continuing obduracy on this subject.
The Honorable Bill Clinton
December 27, 1993
In sum, we urge you to seizir. the opportunity presented
by the forthcoming NATO summit personally to press
Chancellor Kohl on the Princz matter, and to right a
terrible wrong inflicted upon an ^jnerican Jew whose
citizenship did not protect him from the Nazis in 1942,
and which perversely continues to be used by GerT.any as
a shield to shirk its respoi-.sibility to him today.
Rabbi Morris Sherer
Agudath Israel of Ajierica
Robert K. Lifton
American Jewish Congress
Alfred H. Moses
American Jewisih Coxnittee
Anti -Defamation League
Jewish Community Centers
of Jewish Lawyers and Jurists
Edward D. Blatt
Jewish War Veterans of the USA
National Coucil of Jewish Women
Maynard I. Wishner
National Jewish Convmunity
Relations Advisory Council
Alexander H. Schindler
Union of American Hebrew
Senator Heflin. Congressman Pallone, you were going to intro-
duce him, but we are well ahead.
Mr. Pallone. Do you want me to just speak?
Senator Heflin. Yes, sir, if you would, just briefly.
STATEME^^^ of HON. FRANK PALLONE, A U.S. REPRESENTA-
TIVE IN CONGRESS FROM THE STATE OF NEW JERSEY
Representative Pallone. Mr. Chairman, when I was here earlier
I was somewhat concerned, and now I am even more concerned
about the fact that Mr. Princz' case really involves a situation of
genocide, as you heard him speak about his being a victim of the
Holocaust. He mentioned the House equivalent of the bill that is
before the subcommittee today and an amendment that was intro-
duced by Mr. Schumer that would basically include his case for vic-
tims of genocide.
My concern is that — and, again, I don't know too much about all
of the individuals here, but my concern is that the way the legisla-
tion is framed now in the Senate version, it would take care of vic-
tims of terrorism, but not necessarily victims of genocide in the
Holocaust situation like Mr. Princz. So I wanted to point that out
to the subcommittee. It may be necessary to change the language
to make sure that his case and those like him who are victims of
genocide are included. I am concerned that the language, the way
it is now, is not exactly the same as the House bill in that respect,
if that could be looked into, with your permission.
Senator Heflin. Well, we appreciate your testimony. Senator
Specter is the author of the bill and he will be the one moving it.
If you want to speak with him, you can do that.
Representative Pallone. OK, I will do that. You should know,
and I will just say this for my last comment, that we really have
had a lot of people from within the administration — even the Presi-
dent has brought this up to the attention of the Chancellor of Ger-
many, and the Secretary of State and also Mr. Bentsen have all
tried through diplomatic channels to try to deal with the situation
and have so far been rebuffed by the German government. So it is
really crucial that we put something in the legislation to take care
of his exception because we have really tried every other diplomatic
or negotiated means to try to deal with Mr. Princz' case, which is
why we are really before the subcommittee today asking that they
do some legislation similar to the House version so that he can
have his day in court.
Senator Heflin. Thank you, sir.
Representative PALLONE. Thank you.
Senator Heflin. Mr. Jacobsen, will you go ahead with your testi-
STATEMENT OF DAVID P. JACOBSEN
Mr. Jacobsen. Yes, Mr. Chairman. Thank you so very much for
allowing me to speak to this group today. Perhaps it is the most
important 5 minutes of my 62 years of life here on this earth.
I was the American chief executive officer of the American Uni-
versity of Beirut in Lebanon. I was kidnaped on May 28, 1985, and
held for 17 months and released on November 2, 1986. I am here
today asking and pleading for justice and closure for all victims
and the families of victims of international terrorism.
I am here asking on behalf of Bill Buckley, with whom I was
held hostage, both of us blindfolded, stripped to our underwear,
chained to the floor. I listened to Bill Buckley die, his last words
saying, I think I will have my hot cakes now with blueberry syrup.
Bill deserves justice.
My friend, David Collett — the last image he had of his father.
Alec, was on a videotape with his dad swinging slowly on the end
of a rope. David and Alec and his sister deserve justice. William
Higgins deserves justice, and that gentle librarian from AUB who
died with a bullet in his forehead — he and his family deserve jus-
tice. So I am here today asking that justice and closure be per-
mitted for all the victims of international terrorism.
Rodney King was guaranteed his legal civil rights when harmed
by agents of our Government, but every American citizen and fam-
ily member victimized by international terrorists or Nations that
sponsor terrorism have been denied the right to seek justice by our
own very Government. That is a violation of our basic civil rights
and the intent of the U.S. Constitution.
In January of 1980, the release of the hostages at the U.S. em-
bassy in Tehran was accomplished by the Iranian acceptance of the
Algerian Accords. Unfortunately, that agreement contained the
seeds of a violent epidemic of bloody international terrorism that
continues to this very day.
The conditions in that agreement for the return of the Iranian
frozen assets permitted legal and procedural delays of nearly 12
years, thus inciting Iranian retaliation bombings and hostage-tak-
ing. The murder of 241 U.S. Marines by Iranian surrogates — a det-
onator smuggled into Lebanon by the Iranian charge d'affaires —
did not encourage an expeditious settlement of the dispute on the
return of the frozen assets.
The Algerian Accords also waived the rights of all hostages in
the Tehran embassy to sue Iran for damages. The Iranians viewed
this concession as an official abdication by the U.S. Government to
protect the legal civil rights of all of its citizens. Thus, Iran and
other Nations involved in terrorism against the United States were
led to believe that they could murder, injure and kidnap American
citizens with impunity, and they have done so. That belief was re-
inforced by our own Foreign Sovereign Immunities Act that in es-
sence says terrorist Nations may harm American citizens at will
and the U.S. Government will not intercede, provide a remedy, or
What were the consequences of the Iranian interpretation? At
the Beirut airport 241 Marines died; 257 passengers blown out of
the sky over Lockerbie, Scotland; 20 Americans kidnapped in Leb-
anon, of which 4 were murdered; 3 American embassies car-
bombed, with many deaths; our post exchange bombed in West
Germany; my friend, Ian Spiro, and his family murdered in San
Diego, CA, by Iranian hit squads; the Marine casualties in Somalia
by Iranian surrogates that were smuggled in from the training
bases in Sudan; and the World Trade Center bombing, with 7
deaths and over 1,000 people injured.
If these violent acts had been conducted by Americans or had
been conducted in this country, we would be allowed to seek justice
in our courts, but when we are harmed overseas we are denied our
basic constitutional rights, and that is wrong.
The scope of international terrorism will expand as advance-
ments in nuclear, chemical and biological warfare become available
to wealthy States with evil motives. We are all fully aware of the
lethal chemicals that are available now out of Russia, and a small
amount put into the air handling system of any major building in
this country, including any building in this city, would murder
thousands upon thousands in a few minutes. Fewer operatives are
now required to carry out massive acts of terrorism.
The Foreign Sovereign Immunities Act must be amended to per-
mit any American, with reasonable cause determined by a Federal
judge, to sue any foreign Nation which is on or has ever been on
the Department of State's Ust of Nations that sponsor and/or con-
duct international terrorism. I throw that in as a compromise be-
cause I recognize the bureaucrats are afraid that we are going to
sue the Irish or sue the French, and so I throw that in as a com-
promise for a Nation that has ever been on the list of terrorism,
as determined by our DOS.
But the most important thing that can be done, and it is crucial
and it is critical, is that the statute of limitations be without time
limits because the covertness of international terrorism does not
readily allow the identification of the terrorists or their sponsors.
In less than 6 weeks, the statute of limitations runs out on the peo-
ple that murdered Colonel Higgins. Since that awful day on July
31, 1989, 5 years have gone by and our bureaucracy has moved
slow, slow, slowly.
The constitutional rights of American citizens should not be
abridged by diplomatic considerations, bureaucratic bias, and par-
tisan politics. The United States of America, as I was taught in ele-
mentary school, is a Nation governed by the rule of law. Congress
must amend the Foreign Sovereign Immunities Act, and they must
also remove restrictions on the statute of limitations. Failure to do
so will only encourage foreign Nations to continue international
terrorism on a larger scale.
Most experienced expatriates recognize the limitations of our bu-
reaucratic institutions and their wilHngness and their ability to
help Americans who get in trouble overseas. The failure of the De-
partment of State's counter-terrorism tactics is well documented. It
is not in their standard of reference to handle those problems.
There are some in the Department of State who support our posi-
tion. There are many who oppose it, but judges, not bureaucrats,
should determine our legal rights.
Congress must act to amend the Foreign Sovereign Immunities
Act, and do it now. Failure to do so will only send a confirmation
to Nations that engage in international terrorism that they may
continue to do so with impunity. Passage of this legislation just
might be the most significant act of counter-terrorism ever imple-
mented by our Government. Please let terrorist Nations know
today that we will no longer tolerate violence against any American
citizen in our country or overseas.
[David P. Jacobsen submitted the following materials:]
Prepared Statement of David P. Jacobsen
Rodney King was guaranteed his legal rights when harmed by agents of our Gov-
ernment; but every American citizen and family member victimized by international
terrorists has been denied the right to seek justice by his own government. That
is a violation of the intent of the United States Constitution.
The January 1980 release of the hostages at the United States Embassy in
Tehran was accomplished by the Iranian acceptance of the "Algerian Accords". Un-
fortunately, that agreement contained the seeds of a violent epidemic of bloody
international terrorism that continues to this day. The conditions in that agreement
for the return of the Iranian frozen assets permitted legal and procedural delays of
nearly twelve years, thus, inciting Iranian retailiation of bombings and hostage tak-
ing. The murder of 241 US Marines by Iranian surrogates did not encourage expedi-
tious settlement of the dispute on our part. The Algerian Accord also waived the
rights of all the hostages to sue Iran for damages. The Iranians viewed this conces-
sion as an official abmcation by the United States Government to protect the legal
rights of its citizens. Thus, Iran and other nations involved in terrorism against the
United States were led to believe that thev could murders injure or kidnap Amer-
ican citizens with impunity and they have done so.
That belief was reinforced by our Foreign Sovereigns Immunity Act that, in es-
sence, says terrorist nations may harm .^Snerican citizens at will and the United
States Government will not retaliate. What were the consequences of this interpre-
tation? 241 Marines dead at the Beirut Airport, 257 passengers blown out of the
sky over Scotland, 20 Americans kidnapped in Lebanon of which four were mur-
dered, three American Embassies car-bomoed with many deaths, one Post Exchange
fatally bombed, my friend Ian Spiro and his family murdered in San Diego in 1992,
the Marine casualties in Somalia and the World Trade Center bombing with 7
deaths and over 1,000 injured. If these violent acts had been conducted by Ameri-
cans, the victims and their families would have been allowed to seek justice in the
The scope of international terrorism will expand as the advancements in nuclear,
chemical and biological warfare become avaiilable to wealthy states with evil mo-
tives. Fewer operatives will be required thus reducing the chances of interception
The Foreign Sovereigns Immunity Act must be amended to permit any American,
with reasonable cause determined by a Federal Judge, to sue any foreign nation
who is on or has ever been on the Department of State's list of nations that sponsor
and/or conduct international terrorism. It is critical that the statutes of limitations
be without time limits because the covertness of international terrorism does not
readily allow identification of the terrorist or their sponsors.
The Constitutional rights of American citizens snould not be abridged by diplo-
matic considerations, bureaucratic bias or partisan politics. The United States of
America is a nation governed by the "Rule of Law". Congress must amend the For-
eign Sovereigns Immunity Act. Failure to do so will only encourage foreign nations
to continue international terrorism on a larger scale.
On the morning of May 28, 1985, while crossing the intersection between the cam-
us of the American University of Beirut where I resided and the University's 241
_ed Medical Center where I was the Chief Executive Officer, I was kidnapped by
members of Islamic Jihad, an Iranian-sponsored terrorist group. I was held for sev-
enteen months and released on November 2, 1994 which was the day that the Soviet
KGB and their Syrian allies leaked the information regarding the sales of arms for
the release of American Hostages. My day of release to freedom was one of great
joy * * * joy that was soon to be diminished by the vicious partisan politics of Iran/
Contra and the creation of a nightmare from knowing that the remaining hostages
would be abandoned for pairtisan political considerations. My friends, Terry Ander-
son, Tom Sutherland and Joe Cicippio, spent another five years in hell because all
efforts to free them were put on hold. Later in my testimony, I will discuss that
situation and how my personal efforts to free those men and the other hostages was
thwarted by the State Department bureaucracy.
Throughout my hostage captivity, I was held in the same room with Bill Buckley,
Terry Anderson, Tom Sutherland, Reverend Ben Weir and Father Lawrence Martin
Jenco. In adjoining rooms were French, English, Irish and South Korean Hostages.
At times, we were joined in the building by the Saudi Arabian hostage and his wife.
Death was a constant ceU mate that sleep never dispatched. I shall never forget
being chained a few feet from Bill Buckley and being unable to comfort him in his
fmai moments of life. His last words, "I think I'll have my hotcakes now, with blue-
berry S3Tup," will never be forgotten.
Our captivity was not a vacation at Club Med. We were totally isolated from the
outside world, constantly living with the threat of death or torture, brutally as-
saulted physically and psychologically, malnourished, chained like animals to the
floor, blmdfolded, denied every voluntary activity of daily living and stripped of
every right to privacy. Everyone conducted themselves with dignity, honor ana great
patriotism throughout the ordeal. We never flinched in loyalty to our moral and eth-
ical principles. Ino one exhibited any signs of the "Stockholm Svndrome." We £ill be-
came men of conviction, not consensus. Our values did not change, but only how
we expressed them. We survived mentally strong. There are no flashbacks, night-
mares or excessive reactions to sudden noises and moments. We are all fairly well
adjusted and able to function as normal human beings.
During this ordeal, most of us learned that Iran had ordered our kidnapping. The
demand by Islamic Jihad to exchange us for the "Dawa Prisoners" held in Kuwait
was a clever smoke screen. None of us will ever forget "Ali" the Iranian liaison offi-
cer to Islamic Jihad. The leadership role of Iran in hostage-taking is irrefutable. Our
government has the evidence. Iran paid millions to their Lebanese surrogate to kid-
nap and hold Americans hostage. They even paid a bonus at the time of release.
In the case of Ben Weir, Martin Jenco and myself, they demanded missiles which
added the new dimension of "commercial terrorism" which is believed by many legal
scholars to be clearly a violation of the Foreign Sovereigns Immunity Act. Iran has
never been punished for their acts of terrorism, and our government forbids the vic-
tims and their families to seek justice in our courts. That injustice must be cor-
What happened to tarnish the joy of being free? I quickly and painfully learned
that our government consists of five, not three, branches. They are the following:
The day of my release was tarnished by the media and political feeding frenzy
of the news of Iran/Contra. The Soviets and the Syrians fully understood the politi-
cal and media response to the news of arms sales to Iran. The media and, perhaps,
most members of Congress did not realize that Iran/Contra put the release of the
remaining hostages on hold for five long torturous years. The deal that resulted in
the freedom of the remaining hostages in December of 1991 could have been made
anytime between the years 1982 and 1991 without political controversy. At the time
of my release, a personal friend in one of the intelligence agencies told me that "it
is going to be a lone time before your friends come home." And he was right, but
I could not accept that statement. It was then that I learned of the independence
of the fifth branch of government * ♦ * the bureaucracy.
Through a representative of a major Christian Church, I was introduced to Ian
Spiro, a contract agent for the CIA. Ian probably was British MI6 and told a con-
vincing story that he had been brought in by our State Department. Certain actions
on his part partially reaffirmed that fact. The project that we worked on was the
IsraeU concept of creating a not-for-profit educational foundation to teach Lebanese
militia men the various artisan tracles. This project involved my soliciting five mil-
lion dollars in seed money from weadthy Lebanese Americans. I had some reserva-
tions regarding this project and knew that it could be a cunning sting operation.
Church officials said that it was legitimate. I asked friends in the CIA and, after
checking, they responded, "He is from deep within the system and has done wonder-
ful things for us in the past. But, Dave, be careful. People do change." The State
Department refused to comment on the project although they had previously issued
a policy statement supporting independent humanitairian efforts. I had gained the
commitment of private money, and the donor wanted confirmation of the Depart-
ment of State's support. It was not immediately forthcoming, and I withdrew from
the project. I will never know if I could have been successful in bringing the hos-
tages home at Christmas of 1987.
I was involved in another personal effort to free the hostages. It involved expand-
ing the number of students in nursing and physician assistants at the American
University of Beirut with the intent of opening medical clinics for the Shi-ite refu-
gees in South Lebanon. Sheik Fadlallah could take credit, and perhaps the hostages
would be released in exchange for this humanitarian aid. Guess who probably dis-
couraged this project? It wasn't the University or the CIA.
Most experienced expatriates recognize the limitations of the Department of
State's willingness or ability to help them if they ever get into trouble overseas.
Some of the Department bureaucrats will oppose the proposed amendments to the
Foreign Sovereigns Immunity Act for philosophical reasons. But we live in the real
world. Judges, not bureaucrats, should determine the legal rights of the citizens of
the United States.
I survived that hostage ordeal only to find that my freedom was filled with pain,
frustration, discouragement and anger. Upon my return to the United States from
Lebanon, I, like other released hostages before and after me, was literally dropped
on the streets of Washington DC without money, credit cards or identification. I
could have been homeless in Washington DC. Like a released felon, all I had was
a new suit given to me by the Department of State. I did not expect a golden para-
chute nor have I ever asked for anything other than justice ana an opportumty to
have a meaningful life. The criminals who harmed me are still unpunished.
Even though I was in relatively good emotional and physical shape, I could not
resume my career for several years. I sent out over three hundred resumes without
a single response and I had to resort to the lecture circuit. My career seemed ru-
ined, retirement plans destroyed and my planned marriage to the love of my life
never to be. I never qmt as a hostage and I never quit as a free man. I have re-
stored my professional life as a hospital administrator, but I paid dearly by using
most of my savings and cash value of various insurance policies.
Iran destroyed my life! I want justice! As an American citizen, I should be entitled
to my day in court. Amending the Foreign Sovereigns Immunity Act will protect the
rights of every American. It will also guarantee that those rights cannot be pre-
vented by the bureaucracy.
Iran has used the Foreign Sovereigns Immunity Act to avoid punishment for the
murder of 241 US Marines, 257 passengers of Pan Am 103, the kidnapping of 20
Americans and the murder of four of them in Lebanon, the bombing of three US
embassies, the November 1992 murder of my friend Ian Spiro and his family in San
Diego, the bombing of the World Trade Center Building that resulted in 7 dead and
over 1,000 injured, the counterfeiting of bogus $100 bills that two years ago totaled
over 2 billion dollars and now is much more, the murders of Bill Buckley, Peter
Kilburn, Alex Collet, Malcolm Kerr, Robert Stethem, Charles Hegna and WilUam
Stanford. The number of victims is increased many fold when you consider all of
the family members who, in their own way, are more traumatized.
The end of this statement contains four documents. Three from USA TODAY and
a letter from Dr. Adnan Mroueh, AUB Dean of Medicine and a close personal friend
of Sheik Fadlallah who is the spiritual leader of all the Lebanese terrorist groups.
The Sheik says, "only the Iranian Charg'es D'affaires can do anything to release the
The Foreign Sovereigns Immunity Act must be amended to permit United States
citizens who are victims of international terrorism to sue the foreign government
that sponsored, directed and/or participated in the act of terrorism. In order to in-
sure the orderly conduct of diplomatic business, only nations that have ever been
or are on the Department of State list of countries that sponsor or participate in
terrorism should be excluded from the protection of the Foreign Sovereigns Immu-
nity Act. In addition, there should be no statute of limitations on starting legal ac-
tions because of the multi-year delays in identifying the terrorist parties.
International terrorism is not over. The war continues and things are only going
to get worse.
Nations that sponsor terrorism do not fear military retaliation or economic sanc-
tions. What they fear is being hit at the bank. Without friends, their civilian popu-
lations grow restless not against us but their own leaders.
With the military budget cut-backs and uncertainties of our own foreign policy,
terrorism will only increase. Experienced expatriates know too well the limitations
of our own State Department and the political considerations of our partisan lead-
I ask you, I plead with you to amend the Foreign Sovereigns Immunity Act to
allow any American with reasonable cause to sue for damages in our FederaJ Courts
the nation that sponsored and/or conducted the act of terrorism. In order to main-
tain the orderly process of diplomacy, only nations identified as ever being, past or
present, on the United States Department of State's list of nations that sponsor ter-
rorism should be sued. The time limitations on the Statute of Limitations must also
be removed in all terrorism cases because covert operations hinder the ability to
readily reveal the identity of the terrorist party.
Congress must act to amend the Foreign Sovereigns Immunity Act. Failure to do
so will only send a confirmation to nations that engage in international terrorism
that they may continue to do so with impunity. Passage of this legislation just
might be the most significant act of counter-terrorism ever implemented by oiir gov-
ernment. Please do not fail in this effort. There are two difficult davs in our week
♦ * * yesterday and tomorrow. Let terrorist nations know today, that we will no
longer tolerate violence against our citizens.
Family members of victims of international terrorism are also victims. Nothing
can more eloquently express this fact more than the following letter sent by my son
to President Clinton.
Eric D. Jacobsen,
P.O. Box 1784,
Lake Arrowhead, CA, May 2, 1994.
The White House,
Dear Mr. President: I am the son of David Jacobsen, one of the Americans held
hostage in Lebanon by Islamic fundamentalists in the 1989's. During the seventeen
months he was imprisoned, I worked diligently on seeking his release through every
conceivable means, including meeting on numerous occasions with US government
officials, lobbying through the national news media, and even involving myself with
"covert" operations outside the normal channels of diplomacy. I would like to take
credit for my father's eventual freedom, but I can't; his release was a result of the
Reagan Administration's sale of T.O.W. missiles to the government of Iran in Octo-
ber 1986. He is alive and free today because ovu- country traded "arms for hostages"
with another nation, Iran, who aft^r receiving the ransom, ordered his release.
Six years have passed since then, and a great deal of healing has occurred, not
only for the families of these victims of international terrorists, but also for our na-
tion. That period of my life seems hke a long time ago, however, for our family, this
crisis has not been resolved fully. We have yet to see a satisfactory close to this hor-
rible, unjust crime committed against my father and other Americans by Lebanese
extremists under the influence and direction of Iran. This is the reason I am writing
you today. I would like to ask for your help in bringing this to a just conclusion.
In 1992 several ex-hostages, my father included, brought civil action against the
nation of Iran in the federal district court of Washington, DC. This case (Docket
#92-2300) was a multi-miUion dollar suit based on the notion of "commercial terror-
ism", that is, terrorist acts in which a nation (Iran) benefits financially; in our situa-
tion, from the kidnapping and imprisonment of my father and others. The judge on
the case felt that commercial t-errorism was valid grounds for a suit, but he denied
jurisdiction, and the case didn't go to trial. He did not rule in favor of the Iranians;
instead, he felt it was advantageous to my father and the other plaintiffs to get a
ruling on "commercial terrorism" from the appellate court first, rather than nile in
favor and then see the case lost for years in the appeal process. This case is cur-
rently before the appellate court (Docket #93-7047) and is scheduled to be heard
shortly, on May 19, 1994.
While visiting with my father last weekend, he mentioned that the Department
of State has not supported us in this effort. Having struggled for nearlv a year and
a half with the State Department during my father's captivity, this doesn't really
surprise me. But it does stir up an old familiar feeling of frustration and aggrava-
tion similar to what I experienced in my dealings with State dvuing the time I was
the son of a hostage.
I am fully aware of the Foreign Sovereign Immunities Act, and can understand
its intent. This is the basis for the State Department's opposition to my father's suit.
Apparently they feel that if my father and the others were successful, it would open
the floodgates for a huge number of American citizens to bring legal action against
numerous forei^ countries. While this may appear sound reasoning, it fails to ad-
dress the positive long-term effects that tnis case could establish. This precedent
would not only be beneficial to our nation, but would serve justice and demand ac-
countability of those nations that support such grievous crimes as terrorism. As it
stands today, they are virtually free irom accountability because of the Foreign Sov-
ereign Immunities Act. It has, in essence backfired on us.
This is not a frivolous lawsuit. Plenty of hard evidence exists to prove that my
father was kidnapped, held hostage, and suffered physical and emotional torture at
the hands of terrorists in Lebanon. Sufficient evidence also exists, including the tes-
timony of US government officials, to establish Iran's link to and influence over
those who held my father. The fact that T.O.W. missiles were delivered to Iran and
my father was released immediately is irrefutable. Was this merely a coincidence?
I think any court of law would find that hard to believe.
True, my father gained his freedom. He is not emotionally or physically disabled
by the experience. He is working again as a hospital administrator and from all ap-
parent indicators survived his ordeal quite well. However, those who perpetrated
this offense against him and his family have, I hate to say it, gotten away with it.
Is that justice?
Once again, I can hear the official State Department response to this, one that
I heard many times eight years ago: "We don't know who was responsible for your
father's kidnapping. They're a mysterious group, with mysterious motives, hving in
a mysterious part of the world." That wasn t true then; it's not true now. As it came
out through the efforts of hostage families, the State Department finally did concede
publicly that it did know who was responsible — not only the group (Hizb'allah) but
the family (Mousawi) and even the individual in charge (Imad Muhgniya). And be-
hind all of those just mentioned was the government of Iran. No matter what the
State Department claimed then, or says today, it is not a mystery, it is a fact. Iran
is responsible to a large degree for the crime against my father, my family, other
Americans and their families.
Are we motivated by vengeance in seeking punitive and compensatory damages
from Iran? No. Surprisingly, we have been able to for^ve those who were respon-
sible. In writing this letter, I am not driven by anger. I am not controlled by a de-
sire to "get the people who did this." But, forgiveness does not dismiss accountabil-
ity for actions. Just the opposite-— justice requires forgiveness but demands account-
ability. Unfortunately, because the individual kidnappers have not been appre-
hended (but thanks to my father's cooperation, they have been identified), we are
not yet able to make them accountable for their criminal actions. However, Iran is
equally identifiable, and to release them of their accountability because of a law in
this country is unfair, morally wrong, and another injustice committed against the
human rights of my father. He deserves to be treated with dignity, and that trans-
lates into punishing those who broke his legal and moral rights.
If the appellate court rules that commercial terrorism is valid grounds for a suit,
my father stands a good chance of winning his case. Being successful not only bene-
fits my father and the others, it sends a clear message to nations around the world
that state-sponsored terrorism will cost them dearly in a way that they will feel and
respect the most — ^money. It wasn't too long ago that the World Trade Center bomb-
ing let us know that terrorist acts aren't confined to the Middle East anymore. The
security of our borders has already been threatened by terrorists who receive fund-
ing from other nations. As someone who has suffered first-hand experience of terror^
ism, I want to see every step taken to prevent others from suffering as I, my family,
my father and other Americans have.
I ask you, Mr. President, I urge you, please support us in our efforts to bring jus-
tice to the hostage crisis. It may be over, but it's not forgotten. I ask that you would
encourage the Department of Justice to continue in any efforts to apprehend the in-
dividuals responsible for my father's kidnapping and imprisonment, and I request
that you instruct the Department of State not to oppose my father's lawsuit against
Iran, but to support it.
The biggest objection I ever heard to negotiating with terrorists for my father's
release was that it would only encourage further acts of terrorism. I don't agree.
I think the greatest encouragement to those considering terrorism as a means of po-
Utical blackmail is the fact that you can do it and get awav with it. Please, Mr.
President, the facts of this case should be determined on the basis of the same laws
that would be applied to anyone accused of such crimes in this country. Let's allow
the courts to determine culpability on the basis of law and evidence, not the State
IDepartment on the basis of diplomatic convenience.
I am hoping and praying that you will support us in this effort. I regret that this
comes to you on such short notice, but I didn't realize the extent of this problem
until only a few days ago.
Eric D. Jacobsen.
American University of Beirut
BEIRUT . LEBANON
^\ /^Ij <__kJl ^K-^\ i-^ ^^
Ollice ol the Vice President lor Health Allairs
Dean. Faculty ol Medicine A Medical Center
L- . ^ i__*--L^ ^ . r- I
Cable Address : Amunob , Beirut
I ' l ' X ' zii^ ih^rrinii' a -^ gO -a«yK
"USA TODA"!' hoivi 10
serve as a foaiin for boi-
ler understanding ano
unJly 10 help make the
USA truly one nation. "
— Allen H. Niuliarili
Foujidcr, Scpl. 15, 19a2
I'clcr S. Pridiard
hduor of Lhc
President and Publisher
Wake up! International ten'orism is here
After a decade of anti-U.S.
assaults, why is there still
no sense of urgency?
"We can gel you an>Tjme" is not an idle
lerrorist boasL The low level of iniema-
tionai terrorism ;n tlic United Slates has
been due lo a combination of good luck
and law enforcement. Eventually, stale-
sponsored fanatics wiil be successful.
Rep. Bill McCo:ium's llouse Republican
Task Force on Terrorism and Unconven-
tional Warfare, which pr::dicted Iraq's in-
vasion of Kuwait, continues to publish re-
ports that are ignored. Sheik Omar Abdel-
Rahman"5 links lo lerrorism were exposed
long ago. Why did we wail so long to act?
Ii is strongly suspected by many special-
ists Ihat Iran is the insugator. Sudan the ex-
ecutor and Iraq a diversion that distracts
our attention from the real source and pur-
pose of anti-U.S. aciivities. It's been widely
reporied that Iran has counierfeiled and
distributed over S2 billion in 5100 bills, and
ihai Sudan now provides a logistical base
for training and exporting terrorism.
There are nearly 3.000 Iranian revolu-
tionary guards in Sudan,
and if you think they're
there as a "peace
corps," you'd beticr
read some of the con-
gressional reports on
the subjecL You might
even care lo visit Afnca
to talk with Sudanese
and Somali refugees. I
Has all-out terrorist
war been declared
against the United
States, and we aren'i be-
ing told? Axe we going
lo delay responding un-
til a smuggled nuclear
bomb is exploded in
Washington:' Do 250 million Americans
deserve as much proieclion as the spotted
owl? Congress eagerly holds hearings on
partisan issues like Iran<ontra; why the
political silence on the quesiion of Iranian.
Syrian and Sudanese involvcmenl in ler-
ronst events, both .currcni and pasP
A bipariisan eflori is needed:
► Hold congressional hearings lo public-
ly identify the stale sponsors and purposes
By David Ja-
cobsen, a hos-
tralor who was
held hostage in
Beirut (or 1 7
► Confiscate all assets of any nation
tdenufied as sponsoring anU-U.S. violence.
► Develop a military reaction plan that,
when iniiiated, won't stop until the total
mission is completed.
► Amend i^e law to make it easier to de-
lain and deport aliens with a terrorist taint
and to remove protection for terrorist ac-
tivmes of foreign embassies and missions.
► Repeal the stanjie of limitabons on ^.
terrorism and mandate federal court juris- ^'v
diction for all claims by victims.
► Return Lhe 300 FBI agents diverted to
urban gang investigations to the FBI's orig-
inal task of fighting terrorists.
► Designate a Defense-Justice-CIA in-
teragency anii-terrorism group, and play
by new rules of counterierrorism.
Humanir>' has many wonderful traits,
but a sense of urgency is not one of them.
Are we ever going to learn that history
prophesies the future? Remember the
deaths of the Marines in Beirut, the Pan
Am 103 passengers and Islamic Jihad hos-
tages Buckley, Kilburn. Collen and Hig-
gins. Wake up. America!
Senator Heflin. Mr. Cicippio?
STATEMENT OF JOSEPH CICIPPIO
Mr. Cicippio. Thank you, Mr. Chairman. In 1986, while I was at
the American University of Beirut working, a group of Islamic fun-
damentalists, under the actual direction and control of the Islamic
Republic of Iran, abducted me while I was at work. I was held for
1,908 days. During those 56 years, I was moved from one area to
the other. I was beaten. They were going to cut my personals off.
I was up against the wall half a dozen times, or more. Guns were
to my head, saying this is your last moment that you have on this
I was also put into automobiles, trunks of cars. The fear at the
beginning was where was this car going? Will I be going off a hill?
Will I be going into the ocean? But then you begin to live with
those fears because there are just too many of them. Days become
longer, and also your mind begins to go and go and go, turn and
turn and turn.
There were many, many times that I actually felt it was my last
moment on earth, but they always used to tell me, no matter where
you are, if we have to go after you, if anything happens, we will
go, no matter where it is in the world. They often while I was held
gave me this information. They had also told me that, you are held
captive because you are an American, because you are very valu-
able to us, and then by holding you we could do the things that
we would not be able to do otherwise.
I come here today and I ask you to work on this new bill to add
those things to it that will also help the American while he is over-
seas so that he has some remedies that he can fall back on, so that
he can come home and then know that he has not been forgotten.
While I was sitting here today, I just happened to be thinking,
it is my turn to come up, and yet I noticed that those who were
here prior who actually represent me in my own Government did
not have the time to hear my remarks. I felt very, very hurt about
that, and if they do it here, what will happen overseas? Will they
also walk out on us overseas? I was very appalled at that. It really
hurt that those who were here to represent the U.S. State Depart-
ment and also the U.S. Justice Department did not have time to
hear us, the Americans, but they had time to let you know that
what happens to us cannot interfere with their relationships to oth-
ers around the world, countries around the world. This is not in my
prepared remarks. I feel very hurt about it.
I put 5 years of my life, 4 of it chained to a wall — my whole life
was just 3 feet for that whole 5 years. I did not see the sun, day-
light. I did not know what was happening in the outside world. I
did not know, also, that my oldest boy died. I was not told any of
these things, but I had been told time and time again, don't worry,
you will be going home if you don't do anything.
We used to ask those who held us, what is happening on the out-
side, what is the American Government doing to protect us or to
talk for us. So they used to come back and say, there is no news,
no one wants to actually talk on your behalf. I would hear this for
month after month, year after year; the Americans will not talk to
us, so you will have to remain here.
Then over the years you begin to reaHze, are we forgotten? Are
we on the back pages? What has happened to those who are in of-
fice to protect us? Your mind begins to wonder and wonder and
wonder. Thank goodness for the American people when I was re-
leased that, you know, we were not forgotten. The whole world
came to me and said, we were with you and we prayed for you ev-
eryday that you were held, and that was such encouragement to
me to know that I had the support at home. Yet, those who could
have helped more were not there to give it.
Thank you, Mr. Chairman.
[The prepared statement of Joseph Cicippio follows:]
On September 12, 1986 a group of Islamic fundamentalists under
the direction and control of the Islaunic Republic of Iron abducted
me £ro«n the American University of Beirut were I had been working
as Deputy controller. My captivity lasted for a period of 1908
days during which time I was subject to continuous beatings,
lnh\iinane treatment as well as medical experiments. During my
captivity I was pziraded In front of the world press and forced to
read prepared statements condemning the very country I call home.
I was not alone. David Dodge, Prank Reiger, Jeremy Lovin, Rev.
Benjamin Weir, Rev. Lawrence M. Jenco, Thoraas Sutherland, Frank
Reed, Bdward Tracy, Robert Polhill, Alann Steen, Jon Turner, and
Charles Glass were all subject to the same fate. I hesitate to
call myself and my brothers lucky however at least we escaped with
our physical well being. Many were not as fortunate. Lt. Col.
William Higgina, William Buckly, Dennis Hill, Peter Kilburn, Leigh
Douglas, Philip Padfield, Alec Collett and Michel Seurat all lost
their lives while being held captive in Beirut, Lebanon.''
The question lingers, why suoh a long list of shattered lives
and who was responsible for these atrocities. The Answer has
become increasingly clear: The Islamic Republic of Iran directed,
financed and controlled the abduction, confinement and torture of
the above men In an effort to coerce the United States Government
into releasing Iranian funds held In United States Banks as well as
to force the Government into the sale of TOW mioles and other
armaments. This io not speculation or fantasy this is the cold
hard truth supported by Special Prosecutor Lawrence Walsh in the
Iran Contra-Hearlngs. To support these facts one need only look to
the flow of money and weapons between this country and Iran and its
relationship to the release of the above individuals.
Despite the grotesque and repugnant character of the Iranian
Governments actions in all likelihood the Foreign Sovereign
1 The author realizes that many of these men ore not American
citizens and would not have standing to sue under the proposed
?hang« to the FSIA however, they can not and will not be
iBmunltiea Act as currently enacted does not allow any type of
recovery for myself and the others who were held captive. 2 we are
here today to persuade the members of the panel that an amendment
to the Foreign Sovereign Immunities Act la necessary in order to
prevent the future abduction and confinement of United States
Citizens who are working abroad.
2 Myself as well as David Jacobaon currently have an Appeal
pending before the United States Court of Appeals for the District
of Columbia Circuit. The main issue is whether the current Foreign
Sovereign Immunities Act permits recovery for confinement ant
torture of myself an Mr. Jacobson.
THB ABDOCTIOM RWP COtFIWKWENT
AS I made my way to work on morning of September 12, 1986 on
the campus of the American University of Beirut three men
approached from the rear, pushed me to the ground, pistol whipped
my 8k\xll zmd threw me into the back seat of an adjacent vehicle.
This was the beginning of five (5) years of cruel confinement,
where the tortures of beating and hunger were secondary to those of
loneliness rage, and bewilderment. Maddening boredom alternated
with stark terror. I would be totally cut off from my loved ones,
never see the sun or the stars, never read a newspaper or receive
a letter. And for four years of my captivity, I would be chained
to a tragic American Hostage, whose rapidly deteriorating mental
condition often made him a burden to reside with.
During my confinement I was subject to the moot inhumane
conditions possible. I was chained to a radiator for the majority
of my confinement and forced to reside on the balcony of a building
were the temperatures often fell below freezing. I was subject to
constzmt Interrogation and the customary beatings that went along
with these sessions.
I became ill in September of 1991, violently and painfully
ill. I was stricken with terrible aibdominal pain that left me weak
and trembling. I couldn't stand or eat or sleep. Eventually my
captors summoned a surgeon who performed an examination. It was
determined that surgery would be necessary and I was immediately
taken in a trunk of a vehicle to the Hospital. Surgery was
performed and I remained in the Hospital for a period of five days.
I mention this experience because it made me realize that the party
responsible for my abduction was no mere rogue organization. They
were part of a vast highly skilled, government supported network.
They had been financially well supported, with excellent
communications and aocesa to anything they pleased.
On November 4, 1991, I was unejqpectedly moved to anobher
location. It vaa a great improvement over the "hate House", where
the walls had been blackened over with what I suspect had been a
stove fire, leaving a lingering atench in the air. On November 25,
1991 I was moved again, my captors had little problem handling m©
as my weight had shrunk to 130 pounds. Finally, upon reaching my
destination I was told that I would be going home, I did not
believe my captors at first as this had been told to me numerous
times in the past only to be rejected. I was permitted to bathe
and was supplied with shoes, slacks and a sweater. Eventually 1
was loaded into a large cardboard appliance box and placed in the
back of a vehicle. I still did not know if I was going to be free
or dumped into the Mediterranean Sea. On a deserted stretch of
road, outside of Beirut, I finally encountered freedom for the
first time. My captors unloaded me from the box and instructed me
not to open my eyes until they left or risk being shot. I complied
with their request. I heard the sound of an approaching automobile
and soon heard an individual call my name. It was an envoy from
the Syrian government who quickly shuttled me away to Damascus.
Freedom had finally come.
The purpose behind recalling these events is to allow the
members of the committee to understand, in a personal and up close
fashion, the pain and suffering all of the Hostages had to endure
at the hands of the Iranian Government. The same feelings of
isolation are being relived once again as we seek reparation for
our years of confinement. I wish to turn the committee's attention
to the following analysis of the current Foreign Sovereign
immunities Act as well as the reasons why it is imperative to amend
THE FQRBIGa 80VERB IGH ITTHUNITIBS ACT
In The Schooner Exohange v. McFaddon , 11 U.S. 116, 136, 3
L.Bd. 287 (1812), the Supreme Court adopted the common law doctrine
of foreign sovereign immunity. As noted in The Schooner Exchzmqe ,
the doctrine of foreign oovereign immunity rests upon comity
between nations, id. at 135-36; Verllnden B.v. v. Central Bank of
Miaaria . 461 U.S. 480, 486, 103 S. Ct. 1962, 1967, 76 L.Ed. 2d 81
This doctrine began to erode when the State Department
declared that matters regarding foreign sovereign immunity were
executive issues best handled by the State Department. In what has
been deemed the now famous "Tate Letter", the Acting Legal Advisor
of the Department of State to the Acting Attorney General stated,
"it will hereafter be the Department's policy to follow the
restrictive theory of sovereign Immunity in consideration of
requests of foreign governments for a grant of sovereign Immunity.
26 Dept. St. Bull. 984, 985 (1952). According to this modem
A state may be held liable in the courts of another
nation if it engages in an industrial, commercial,
financial or other business enterprise in which private
persona may there engage, or does am act there in
connection with such an enterprise wherever conducted,
and the proceeding is based upon the conduct of such
enterprise or upon such act. Article II, Draft
Convention on Competence of Courts in Regard to Foreign
In 1976, Congress codified what was at the essence of the 1952
Tate letter. Congress' efforts led to the creation of the Foreign
Sovereign Immunities Act. The FSIA grants sovereign states
Immunity unless their activities fall under one of the five
exceptions. However, sovereign immunity should be regaxdad as the
exception rather than the rule, and should be confined to a foreign
sovereign 'd truly governmental acts and not e-xtended to strictly
commercial activities. McDonnell Douglas Corp. v. Isla mic Republic
of Iran . 758 F.2d 341 (8th Cir. 1985). Further, a commercial claim
against a foreign state on the merits does not affront the
11315 Before the Subcomm. on Administrative Law and Governmental
Relatione of the House Comm. on the Judiciary, 94th Cong., 2d Sess.
31 (1976) (Testimony of Bruno A. Ristau)].
The Act reflects Congress's solicitude for the "rights of both
foreign states and litigants in United States Courts. 28 U.S.C.
Section 1602. Its history takes note of, among other things, "the
growing number of disputes" between American citizens and foreign
states and "expresses the desire to ensure" that "our citizens will
have access to the courts in order to resolve ordinary legal
disputes ." (emphasis supplied) See H.R, Rep. No. 1487, 94th Cong.,
2d Sess. 6-7 (1976), reprinted in 1976 U.S. Code Cong. & Admin.
News 6604, 6604-06 (hereinafter "House Report").
It is important to note that when the FSIA was enacted United
States Citizens were not being systematically abducted throughout
the world by foreign governments to be used bartering chips. In
1976 Congress and in turn the state Department was dealing with a
much different world than we are faced with today. It was not
until the late 1970*3 early 1980'8 that the middle eastern nations
began fostering aggression towards united States Citizens. Before
thio time the democratic governments of the West as well as Eastern
Block countries of Europe did not engage in the abduction of United
States Citizens. Perhaps the most memorably example of the
changing of the world order came from Iran itself when In 1979 a
militant student coalition under the direction of the Ayatollah
Khomcnl, seized control of the United States Embassy in Tehran.
Clearly these problems were not prevalent or foreseeable when they
act was drafted. It is the intention of the Hostages to persuade
this committee to allow the proposed changes to the Act to prevent
this type of aotivity from occurring again. If the nations of the
World are placed on notice that they will be held financially
accountable for their actions against United States Citizens
traveling abroad it will act as a positive deterrent. I wish now
to turn my analysis towards the benefits to the proposed changed in
AMENDwgrrrs to the fsia
A3 stated previously it has loag since been the concern of law
makers as well as the State Deportroent to persuade private
individuals from suing Foreign Governments when they are acting In
a piirely Sovereign Capacity. As hostages we undersfciind the
reasoning behind that policy and why it is necessary to have
safeguards to that effect in place. However, the proposed changes
to the FSIA will not impede upon that "sacred" area. What we are
looking to do is deter the arbitrary detention, torture and
confinement of United States Citizens abroad. We know of no
government that has an established national policy that allows for
hostage taking. Further, any Nation that does engage in conduct of
this nature surely could not call their actions "sovereign." The
acts which were committed upon us were purely of a private nature
and were not done to protect any national security interest of the
Iranian Government nor to promote an estsiblished national policy.
These were cruel hard acts of terrorism. By allowing the proposed
changes to the FSIA to become law this country will be sending a
clear message to the world community: If you decide to arbitrarily
abduct, confine and torture United States Citizens you will be held
fln^mcially accountable in the courts of this country.
By holding foreign governments financially accountable for
their actions it will in all likelihood deter this type of conduct
from happening again in the future. This committee can not change
what has happened to the Beirut Hostages but it can prevent this
type of conduct from occurring again as well as give those who were
aggrieved an opportunity to be compensated.
With any change in the laws of this country there is an
overriding concern that the new cause of action will create a
"flood of litigation" which will overburden the courts. These
proposed changes will not have that effect. The number of
individuals who would fall into the subject classification would be
limited to U.S. Citizens who were arbitrarily abducted and tortured
wno oppose tnese proposed amendments can not point to an
overwhelming number of individuals who would have standing to
proceed under the Act. Accordingly, we submit the act would bo
confined to those individuals who have a legitimate justiciable
The final area we would like to address deals with the State
Department's potential opposition to the proposed amendments. The
State Department has continuously resisted our efforts to seek
reparation from our captors. As stated previously the State
Department believes that matters dealing with foreign nations
involve national interest and are best handled by the Government
and that our Court system should not become involved. We believe
that when an individual spends five years of his life arbitrarily
confined at the hands of a foreign nation that person has a right
to know the reasons behind his detention. A foreign Sovereign that
engages in the type of conduct as alleged herein should
automatically loose the privilege of Sovereign Immunity. The
determination of what an aggrieved party has the right to know
should not lie in the hands of our State Department but rather In
the capable hands of the Judges of this Country. if a Foreign
Sovereign wants to systeraatioally abduct U.S. Citizens working,
living or traveling abroad they must be held accountable for their
actionfl and no alleged risk of National Security should prevent the
aggrieved party from having their chance at reparation.
In Conclusion the present version of the FSIA does not give us
any chance of reparation against our captors nor does it provide a
deterrent to these men from performing these gross atrocities in
the future. Unless these proposed Amendments become law the
actions of our captors will continue. In recent years we have seen
terrorism first hand in this Country it is time to put an end to
this madness. We urge you to turn the proposed amendments of the
FSIA into law. Joseph Cicippio
Senator Heflin. Mr. Hall?
STATEMENT OF CLINTON A. HALL
Mr. Hall. Thank you, Mr. Chairman. I appreciate having the op-
portunity to be here today. There is little I can add to the testi-
mony that has already been given. I would like to characterize
what happened to me.
My name is Clinton Hall. I am a retired major in the U.S. Army.
What led up to my abduction by the government of Iraq is I was
working in the State of Kuwait helping to clear up the munitions
and things left behind by the coalition forces and by the Iraqis. In
the process, I was abducted at gunpoint by military personnel from
the Iraqi government within the territory of Kuwait.
I was taken to Baghdad, placed in a prison cell, removed of my
clothing, subjected to being in a closed cell, 8-by-8, no lights, no
windows, no facilities of any kind, water or toilet facilities, and ba-
sically deprived of any humane treatment. Although I wasn't phys-
ically injured in any way, I was told in graphic detail of the things
that would happen to me in order to obtain information — removal
of fingernails, cutting off of joints, subjection to electrical shock of
In the process of interrogation, I was asked everything about me
personally that I could possibly be asked, including, you know, who
my relatives were, where they lived, telephone numbers, addresses.
There is not anything about me now that the government of Iraq
does not know. I also am concerned about the long-term effect, as
Mr. Cicippio pointed out, with this information.
I think that the bill that is before the Senate and the one that
has passed in the House subcommittee are very important to Amer-
ican citizens and I urge the Senate and the Congress of the United
States to pass those bills to give Americans their rights.
[The prepared statement of Clinton Hall follows:]
Prepared Statement of Clinton A. Hall
Clinton A. Hall, also known as Chad Hall, is a retired Major in the United States
Army. During his active duty time he worked as an Explosive Ordnance Disposal
Officer. After his retirement from the Army he worked as a General Manager and
Vice President for a General Contractor and was self-employed as owner of a sand
and gravel company.
On June 1991, Mr. Hall traveled to Kuwait to become employed by Environmental
Health Research & Testing. He commenced working in Kuwait desert and did so
until October 8, 1992, at which time he was abducted out of the Kuwait desert by
Iraqi military officers.
Prior to his abduction, Mr. Hall was aware of several "border incidents" involving
citizens of other nations, including Britain, Sweden, Pakistan and the Philippines.
He was aware of two British subiects who were arrested at the Iraq-Kuwait and
Iraq-Turkish borders several months prior to Mr. Hall's abduction. Both British sub-
jects were imprisoned in Baghdad ana only recently released.
On the 8th day of October, Mr. Hall was working in the Demilitarized Zone
(DMZ), approximately one kilometer from the Kuwait-Iraq border and about 1 and
one-half kilometers from the town of Umqsar and about 200 meters from the United
Nations (UN) outpost of Camp Cohr. Mr. Hall had two work crews in that area
which were working in the southern edge of the DMZ removing barb wire entangle-
ments and dismantling trunk lines and bunkers that had been left behind by the
Iraqis during their occupation of Kuwait.
In another area, about a 1000 meters south of Kuwait-Iraq border, Mr. Hall had
a second work force doing very much the same work but included removal of explo-
sive munitions. During the day of 8 0>;tober, Mr. Hall would go back and forth be-
tween these two work elements to supervise their work and check on their progress.
At about 10:00 a.m. in the morning, while returning from visiting his element in
the South of the DMZ, Mr. Hall approached the work crew closest to the border and
found aU of his people and equipment standing idle. Mr. Hall observed an Iraqi Pa-
trol Vehicle. Concerned about the welfare of nis work force, Mr. Hall approached
the group with caution and then noted there was also an U.N. Patrol Vehicle. Pre-
suming tnat, with the presence of the UN representative, there would not be a prob-
lem, Mr. Hall approacned the group, dismounted from his vehicle and introduced
himself as the Proiect Manager and Supervisor for the people that were working in
that area. His work group consisted of nationals from Syria, Nepal, Bangladesh, and
Pakistan; all of which had moderate understanding of English. After introductions,
the senior Iraqi Officer asked Mr. Hall why his work force was inside Iraq and what
authorization ne had to be there. Mr. Hall advised the Iraqi Officer that his people
and equipment were not in Iraq but in Kuwait as verified by the United Nations
Sub-Polar Survey Team and coordinated and verified by independent survey using
the Global Positioning System. The Iraqi Officer did not accept either basis. Mr.
Hall asked verification by the U.N. Officer who concurred that Mr. Hall and his peo-
ple were in fact inside of Kuwait. The Iraqi Officer did not accept this explanation
either and insisted that Mr. Hall accompany him and the other Iraqi Officer to Iraq
to meet with his commanding officer. Mr. Hall advised that he could not do so since
he did not have an entry visa, at which time he was assured that it was not nec-
essary and that would only be gone for a short while and Mr. Hall would be re-
turned immediately thereafter. Mr. Hall refused to go but suggested that possibly
the two Iraqis could accompany himself and the U.N. Officer to the U.N. outpost
on Camp Cohr and seek resolution by the U.N. The Iraqi Officer refused. Mr. Hall
then suggested that possibly their commander would come to the border where he
and Mr. Hall could discuss the problem of location. The Iraqi Officer stated that his
commander would not do that.
With a last hope of negotiation, Mr. Hall stated he would accompany the Iraqis
to see their commander only if the U.N. Officer "a Bangladesh Officer" also go along.
Turning at that moment to talk to the U.N. Officer for approval of his reauest, Mr.
Hall found the U.N. Officer had departed the area. Presuming that the U.N. Officer
had gone for help, Mr. Hall conducted a dialogue with the Iraqi Officers to assure
that nis personnel and construction equipment would not be taken across the bor-
der. This exchange lasted approximately 30 minutes at which time Mr. Hall became
aware that the U.N. Officer was not going to return.
At this point in the conversation, one Iraqi Officer advised Mr. Hall that he was
a Major and the other Officer a Colonel. Mr. Hall's Pakistani Supervisor, that was
working for him, intervened in the conversation and advised that Mr. Hall was a
General. At this point the Iraqi Colonel stepped over to his parked Patrol Vehicle
and removed a 9mm pistol. Standing about three feet from Mr. Hall, he pointed the
pistol at him and stated "you will come with me or I have the authority to shoot
you". At this point. Mr. Hall again entered into negotiations with the Iraqi, under
duress with a pistol being pointed at him, and obtained agreement from the Iraai
that they would let his people and equipment go if he would go with them. Mr. Hall
agreed and got into his vehicle with the Iraqi Colonel. Mr. Hall as driver with the
Iraqi Colonel sitting next to him in the passenger seat with the cocked pistol in his
rib cage. As Mr. Hall started the vehicle he observed the Iraqi Maior directing his
people to get on the equipment and point it north towards Iraq. Mr. Hall turned
to the Iraqi Colonel and asked why the Major was taking that action since they had
agreed to take only him and let his people go. The Iraqi Colonel stated very frankly
"f have changed my mind". At that time Mr. Hall turned off the ignition to his
truck, told the Iraqi Colonel he could not accept that and would not go with them.
As he opened the door to get out of the vehicle, the Iraqi Colonel warned him not
to get out or he would shoot him. As Mr. Hall stepped around the door of the vehicle
the Iraqi Colonel got out of the other side of the truck, laid the weapon across the
hood, told Mr. Hall to get back in the vehicle immediately or he would be dead. At
this point the Iraqi Major observed what was taking place, came forward and asked
the Colonel what was happening. The Colonel appraised him of the situation in Ara-
bic. After a short discussion between the two, the Major turned to Mr. Hall and said
"if we do as we had agreed, would you go with us?" Mr. Hall said "yes,_ but only
after my people have got on the equipment and left the immediate area." The two
Iraqis again consulted and agreed. Mr. Hall called his supervisor over, directed him
to get the men and equipment immediately out of the area and as soon as he ob-
served the Iraqis taking Mr. Hall toward the border that he go immediately to the
U.N. outpost at Camp Cohr and report Mr. Hall's abduction to the U.N.
When Mr. Hall got back in the vehicle again with the Colonel, the Colonel again
placed the cocked pistol in Mr. Hall's side and directed him to drive into Iraqi, ap-
proximately 1 kilometer away. The Iraqi Major followed in their Patrol Vehicle.
After crossing at the border check point the Iraqi Colonel directed Mr. Hall to pixU
over and that the Major would drive Mr. Hall's vehicle. At this point there was a
large group of Iraqi personnel standing around and as the Major exited his Patrol
Vehicle he was asked who had they captured. He responded that they had an Amer-
ican. The group started to approach Mr. Hall's vehicle, all talking very loudly. At
this point Mr. Hall was outsioe his vehicle and became ever more concerned about
his welfare and moved very quickly to the vehicle and got in the passenger side,
closing, locking the door and rolling up the window. At this point tne Colonel had
pushed himself into the back seat of the vehicle directly behind Mr. Hall and as Mr.
Hall sat down in the passenger seat, the Colonel placed the cocked pistol into the
base of his head and advised him not to do anything or he would be shot. Still as-
suming that liiey were just suppose to go to the border and talk with their com-
manding officer, nowever, the two Iraqis continued into Iraq. It soon became evident
to Mr. Hall that their command base was not where the Iraqi Officer said it would
be. This became even more evident as they drove through the town of Umqasr and
continued north. Shortly after crossing the 10 kilometer Line that marked amount
of damage of the DMZ on the Iraq side they proceeded to the town of Basra which
was approximately 90 kilometers north of where Mr. Hall was abducted. The route
along the road was very rugged and uneven caused by the severe damage imposed
by the coalition forces. Mr. Hall was very concerned about the cocked pistol that was
being held on him.
Upon arriving at Basra, Mr. Hall was confined in a small room which had no toi-
let, no water and no bed. He was seated in a chair and told to wait for someone
to speak with him. He was questioned in English by an Iraqi who said he was a
graduate of the University of Illinois. That man said they had made a mistake but
that the decision to release Mr. Hall could only be made in Baghdad. Not withstand-
ing that admission, Mr. Hall was confined for eleven hours without food, water,
bathroom privileges or a bed.
Needing to use bathroom facilities. Mr. Hall cried for help or for the attention of
a guard. No one responded. He tried the door to his room and found it unlocked.
He left the room in search of a bathroom and possible escape. However, he encoun-
tered an Iraqi soldier armed with an AK— 47 who told him to stop in Arabic. The
guard allowed Mr. Hall to use the bathroom and returned him to the room which
was now locked, where he spent the night in a chair. He was confined for a total
of 27 hours without any food or water. The next day he was transported, again at
Tne Iraqis decided to transport Mr. Hall to Baghdad and since air transport could
not be used, he was transported in a civilian car, a small two-door Fiat, and on the
trip was accompanied by three Iraqis. The total trip took approximately 12 hours
and during the trip Mr. Hall was told by these three Iraqis that any information
that they wanted from him he would give them or they would take whatever meas-
ures were necessary to gather that information. Included in their comments were
"removal of fingernails", "cutting off fingers and toes", "peeling his skin off" and the
application of ' electrical shocks to his personal parts". Mr. Hall assured these per-
sons that it was not necessary to torture him. Within the bounds of propriety, he
would provide whatever information was required. Dvuing this period ihe Iraqi also
described what they would do to President Bush if they could get their hands on
him. All during these conversations Mr. Hall tried to engage his captors in talking
about their families, their welfare, general conditions in Iraq, the fact that Iraq and
America had been allies before the war with Kuwait and would probably be alUes
in the not too distant future aft«r the hostilities.
In Baghdad, he was taken to a converted parking garage which was used as a
jail. The floor and walls were concrete. There were no windows and the door was
soUd. There was no electricity, food, water, or toilet facilities in his jail cell. He was
required to strip naked in the presence of five Iraqi officers. He was then given pris-
on striped pajamas to wear. He was confined in total darkness for four days. He
was fed only once a day during his confinement. Upon entering the cell, he was con-
fined from 2:00 p.m. to 9:00 a.m. the next day without bathroom facilities.
During the early part of this stay in the prison in Baghdad, Mr. Hall was blind-
folded and taken from his cell. He was told that he was oeing taken to the interro-
gation room for questioning.
During this interrogation Mr. Hall was questioned extensively daily as to how and
what he was doing in Kuwait; who he worked for; and was he in the military; had
he ever been to Iraq before? They asked about his family to include names, address-
es, and telephone numbers. They asked about the status and conditions of living in
Kuwait and the general feeling of U.S. people about the Iraq-Kuwait conflict. They
stated that on the basis of illegal entry that Mr. Hall could expect up to 20 years
When Mr. Hall was taken to the toilet facilities, he was not given toilet paper and
told to use his hand. After this was done he was denied the right to wash his hands.
Something he was given, presumably the water, caused him to have diarrhea which
made the situation even more uncomfortable.
During Uie time he was in jail he heard other prisoners, including females,
scream as if in pain. From the sounds he heard it sounded as if people were being
tortured. Mr. Hall feared for his life at that point.
On the foiu-th day of his confinement Mr. Hall was told he would be shaved. He
was allowed to wash at a sink and then was seated and a portion of each side of
his face was shaved. He was then taken to a room where an Iraqi in civilian clothes
asked him if he had been mistreated. His response was that it was what he had
expected. Then three people were brought into the room; a Russian Colonel, a Ken-
yan Major and an Australian female civilian. These three United Nations represent-
atives and an Iraqi Colonel flew from Baghdad to Umqasr in a Russian aircraft.
On tiie afternoon that Mr. Hall was turned over to the U.N. in Baghdad, they
were supposed to fly out that afternoon but due to failing light conditions and due
to the fact that there were no lights at the airfield in Umqasr. It was decided that
Mr. Hall would remain overnight again in Baghdad.
The Iragi wanted to take Mr. Hall back into their custody but thanks to the as-
sistance of the Russian Colonel with the U.N., Mr. Hall was placed in accommoda-
tions with other U.N. personnel to be transported the following morning to the Iraq
Apparently, during the evening, the news media was able to locate the hotel
where Mr. Hall was being kept and in the morning prior to his departure the media
occupied the lobby in order to acguire pictiu*es. The U.N. shpped Mr. Hall out the
back door of the hotel into a waiting car but one news team from the BBC had an-
ticipated this and took pictures of Mr. Hall coming out the back of the hotel. This
was the first pictures released that showed he was in good condition and being re-
leased. During Mr. Hall's stey in the hotel the room was guarded bv two Iraqi sol-
diers who accompanied him and stood guard during a dinner which was attended
by the senior U.N. Mission personnel and the Polish Ambassador who was respon-
sible for the U.S. interests in Iraqi.
The following morning the U.N. personnel drove Mr. Hall to Iraqi's airfield, placed
him on a U.N. plane to transport him to Umasar. During this trip and until Mr.
Hall was turned over to the U.N. at Umqasr Mr. Hall was escorted and in custody
of an Iraqi Colonel.
At Umqsar Mr. Hall was officially turned over to the U.N. where he was adminis-
tered a cursory physical, was placed back on the airplane which then transported
him to Kuwait where the U.N. turned him over to the U.N. Ambassador at Kuwait.
After debriefing by the U.S. Embassy security, Mr. Hall was allowed to call his
family and then attend a briefing for newspapers. Later that afternoon Mr. Hall
flew to the U.S. to Washington, D.C.
Since that time a suit has been filed on behalf of Mr. Hall against the Republic
of Iraq in Cause No. 92-2842^HG in the United States District Court for the Dis-
trict of Columbia. The Head of Ministry of Foreign Affairs was served by agents of
the Polish government in Baghdad, thi'ough diplomatic channels required by the
United States Code, Foreign Sovereign Immunities Act. For many months no action
was taken in that suit, it being the advice of Mr. HaU's attorney to wait until the
pending legislation in both the House and the Senate was acted upon to clarify the
issue of foreign sovereign immunity. However, in February 1994, Mr. Hall's attorney
was contacted by an attorney who has been retained by the Republic of Irao to con-
test the jurisdiction of the court. The default of Iraq had been taken in that suit
in as much as the Republic of Iraq had not responded within the requisite sixty
days allowed by United States law.
The Republic of Iraq has now filed a Motion to Set Aside Default, which is pend-
ing in the court and has lodged a Motion to Dismiss for lack of Jurisdiction, which
will be heard in the event the court sets aside the default.
The pending bill introduced by Senator Specter clarifies the issue of jurisdiction
of the court which will allow persons who are mistreated either physically or men-
tally, as was Mr. Hall, to seek redress in the U.S. courts. It further provides for
levy and execution on assets of a foreign country found in the Unites States in order
to satisfy any judgment rendered. The Specter bill is restricted to those specifically
designated terrorist nations, including Iraq and Iran, with whom the United States
does not have diplomatic relations. Passage of the bill will assure Americans who
are mistreated by foreign governments, particularly those which operate outside
their territorial boundaries as have Iraq and Iran, the right to pursue an appro-
priate remedy in the United States Courts and to seek and receive compensation
for their injuries.
Mr. Hall continues to suffer today from the effects of his confinement and the ter-
rorist tactics employed by the Iraqis. He continues to remain under the care of a
physician for the severad symptoms which he experiences now which he did not ex-
perience prior to his abduction and confinement including insomnia, claustrophobia,
and sexual dysfunction. Mr. Hall urges passage of the hill.
Senator Heflin. Mr. Sofaer?
STATEMENT OF ABRAHAM D. SOFAER
Mr. Sofaer. Good morning, Senator. It is a pleasure to be here
with you, sir, and an honor to be at this table with these gentle-
men. Thank you for inviting me to present my views on this bill
and its counterpart in the House of Representatives, H.R. 934,
which would amend the Foreign Sovereign Immunities Act by mak-
ing an exception to that immunity for certain cases in which Amer-
ican citizens are the victims of State-sponsored torture or other
abuse of human rights.
Without such an amendment. Senator Heflin, it is quite clear
that victims such as are at this table today — Mr. Cicippio, Mr. Ja-
cobsen, Mr. Hall, Mr. Princz — and such as the clients of my firm,
Scott Nelson and James Murkowski, and of the firm of Mudge
Rose — and Mr. Garment is here, as well, today, Mr. Heflin — will
never get any kind of relief
It is clear that the act doesn't apply to this sort of conduct when
it occurs overseas. It does apply to the similar torts that are com-
mitted here, so conceptually tnere is no difference in that sense. In
fact, torts committed here can raise the same sensitivities for the
U.S. State Department and our executive branch that torts that
are committed abroad raise, and we have to deal with those sen-
sitivities. We are learning to, but we are not learning very fast.
The Torture Victim Protection Act is limited to individual defend-
ants and you will have lawsuits only when you can get an individ-
ual defendant who committed torture here in the United States,
and then you would be limited in what you could collect.
We know that espousal simply does not work in these cases. Sen-
ator, I was here many times with you as a State Department offi-
cial. We have our duties and we are competent, and the people who
appeared before you today are exceptionally competent, but they
are playing a certain role. Their interests are limited to the office,
as Madison so eloquently wrote in the Federalist Papers. We need
something other than espousal.
Senator Heflin, you would not, and none of us would entrust our
rights, our health, our lives to the hands of individuals such as who
testified here today. Their purpose, their aims are too broad; they
are not directed to the protection of the individual Americans that
are affected. It takes a lot in the State Department, Senator, to
fight for an individual American when a foreign State is involved.
We have been waiting years for a decision on espousal in the Nel-
son case and we have not yet received it.
Of course, there are dangers to amending the Foreign Sovereign
Immunities Act, but those dangers can be overcome by careful
analysis and responsive testimony. The testimony you received
today was not responsive to the relatively few dangers that are in
this legislation. I think that as long as it is limited to American
citizens, I believe it should be amended to eliminate the reference
to international terrorism as a standard and we should include in
that law hostage-taking and other clearly defined acts of inter-
So long as we have an exhaustion requirement — and the one ad-
ditional suggestion I would have, Senator Heflin, is a requirement
that an international tribunal be convened in the event the State
objects to our courts. So long as those changes are made, I simply
don't see any reason why the United States cannot cope with the
resentment that might occur in a foreign country, even a friendly
foreign country. I would not limit this bill to States on the terror-
ism list. I don't think that that is a principled way to go about this.
So having experience with these issues for many, many years, in-
cluding having settled. Senator Heflin, the case of the Letelier
bombing myself — I led the negotiation on that — and having settled
the Starr claim with Iraq and the claims in The Hague with the
Iranians, I can tell you I have no doubt that the United States has
the moral strength and the means to make this kind of a declara-
tion stick so long as it is carefully drafted and implemented with
the sort of commitment to human rights that I have no doubt the
present President of the United States has.
Indeed, I am really surprised that this administration, which
says, and I believe it is true, it is committed to the advancement
of human rights in the world, would not take this bill and use it
as a practical and constructive means for implementing that com-
I thank you, Mr. Chairman, for inviting me to testify here today.
[The prepared statement of Abraham D. Sofaer follows:]
Prepared Statement of Abraham D. Sofaer
Mr. Chairman and members of the Committee: Thank you for inviting me to
present my views on S. 825. Like its counterpart in the House of Representatives,
H.R. 934, this legislation would amend the Foreign Sovereign Immunities Act
("FSIA") by making an exception to sovereign immunity in certain cases in which
American citizens are the victims of state sponsored torture and other egregious vio-
lations of human rights. Legislation is necessary to ensure that when such viola-
tions occur, American citizens are not denied the right to a fair hearing in a neutral
In 1976, Congress enacted the FSIA to ensure that oiu- citizens have access to the
courts in this country to resolve ordinary legal disputes involving foreign states.
While the focus of the FSIA was on commercial disputes, the Act also provided an
important exception to the general principle of immunity in cases involving personal
injury and death as a result of the tortious conduct of a foreign state occurring in
the United States. This "non-commercial tort" exception to sovereign immunity ap-
plies to gross abuses of human rights perpetrated by foreign states on U.S. territory,
as in Letelier v. Republic of Chile, 488 F. Supp. 665 (D.D.C. 1980), and more re-
cently in Liu V. Republic of China, 892 F.2d 1419 (9th Cir. 1989), cert, dismissed,
111 S. Ct. 27 (1990). .
The FSIA did not provide a remedv in U.S. courts, however, for torts committed
outside the United States. In general, this remains sound policy. Foreign states in
which such torts are committed ordinarily provide an adequate and more appro-
priate forum for such cases. Moreover, in the absence of a substantial nexus with
the United States, providing a forum in the United States for such cases could rep-
resent an extra-territorial extension of the jurisdiction of our courts to adjudicate
that is not warranted by international law. The time has come, however, to adopt
a limited exception to this general policy.
The proposed legislation would, in effect, expand the non-commercial tort excep-
tion to certain egregious human rights violations perpetrated against U.S. citizens,
even where the conduct occurs outside U.S. territory. Permitting such cases to be
heard in our courts is justifiable under international law because the prohibition
against torture and similar abuses is so fundamental and so widely accepted among
nations as to render inapplicable the normal rules against extra-territorial asser-
tions of jurisdiction.
The proposed legislation properly incorporates certain safeguards. First, the ex-
ception applies only to American citizens. While it is appropriate that we provide
a forum for our citizens when their most basic human rights are violated and no
other remedy exists, we have neither the duty nor the capability to open our courts
to any person who complains of human rights violations involved anywhere in the
world. Second, the exception in H.R. 934 recognizes that, where the domestic courts
of the foreign state in which a covered injury occurs provide an adequate and effec-
tive remedy, the aggrieved person, although a U.S. citizen, must pursue that rem-
edy. The extension of extraterritorial jurisdiction contemplated should be limited to
cases where a new forum is needed, not merely convenient.
In fact, the coverage attempted by S. 825 is too broad even with these important
limitations, and could undermine its legitimate purposes. The acts that are tne sub-
ject of H.R. 934^torture, extra-judicial Killing and genocide — are clearly defined and
condemned in several international instruments that have nearly universal support
among states. No state claims a right to torture or summarily execute the citizens
of another state. S. 825, however, attempts to provide a forum to American citizens
who are the victims of "international terrorism," a term subject fc intense debate
and conflicting interpretation. In view of the absence of consensus in this area,
international law provides no support for asserting the jurisdiction of U.S. courts
against a foreign state in cases involving allegations of an offense so vague and po-
litically charged as "international terrorism." Moreover, an attempt to assert juris-
diction in such cases could subject the United States to suit in foreign courts for
conduct that it considers to be wholly lawful in character.
No need exists for incorporating so broad and politically charged a basis for juris-
diction. Many of the most serious cases that S. 825 seeks to redress would be cov-
ered by the widely accepted definitions of torture and extra-judicial killing contained
in H.R. 934. The most glaring exception involves acts of hostage-taking, but that
conduct could also be covered in the bill by adding hostage-taking to the hst of inter-
national delicts for which a foreign state could be subjected to suit in U.S. courts.
The statute should be revised accordingly.
Another, even more important revision should be made, in order to enable states
that differ on the adequacy of an existing remedy to agree to an international forum.
It seems safe to predict that no state will accept the proposition that its remedies
are inadequate, and many foreign states will take offense at the proposition that
they must litigate charges against them in the courts of the nation whose citizens
make those charges. The consequences of allowing American citizens to pursue such
claims in U.S. courts without first exhausting more traditional options could ad-
versely affect U.S. foreign poUcy interests.
The way to respond to these concerns is to require the U.S. citizen who sues in
our federal courts to accept adjudication of his or her claim before a neutral and
fair international tribunal, if the other nations involved is prepared to do so. The
International Court of Justice and other existing institutions could readily provide
an adequate international remedy for the internationally recognized offenses to be
covered by appropriate legislation. Where a foreign state is found both to refuse an
adequate domestic remedy, and in addition to refuse to agree to adjudicate or arbi-
trate the dispute in accordance with one of several available forms of dispute resolu-
tion, the U.S. will be in a far stronger position internationally to provide a domestic
remedy, and the foreign state will be in a much weaker position to object.
My experience in the Letelier case is particularly instructive in this regard. After
years of attempting to force Chile to respond to civil suits brought against it in the
U.S., we decided to try to resolve the dispute by proposing an international arbitra-
tion under a treaty we had with Chile that one had to strain to apply. Chile re-
sponded positively to this proposal. While the Chilean Government was unprepared
to subject itself to the jurisdiction of the U.S. courts, it was prepared to accept an
international arbitration with binding results. The U.S. should similarly be pre-
pared to deal with such claims in some recognized tribunal or through some widely
accepted arbitral procedure.
Like the claimants in Letelier, other victims of human rights abuses can, of
course, petition the Department of State to espouse their claims. Unfortunately,
however, for most American citizens whose human rights have been abused by a
foreign state, espousal is an inadequate option. One of the reasons that the FSIA
was enacted in 1976 was that, owing to the diplomatic pressures that are brought
to bear by foreign states, the Department cannot be relied upon to make sovereign
immunity decisions "on purely legal grounds and under procedures that insure due
Erocess." Similarly, the Department's decision with respect to espousal is likely to
e influenced, not only by the merits of the case, but by the Department's concern
for offending a foreign state and creating a potential irritant in its dealings with
that state. This is particularly likely to occur where the claimant alleges that es-
pousal is necessary because local remedies in the state that is alleged to have in-
jured him are ineffective and unavailable. My firm's cUent, Scott J. Nelson, has
waited over nine years for a decision as to the espousal of his claim of tortvu"e
against Saudi Arabia.
Our courts, on the other hand, are not subject to the same pressures as the State
Department. They have long and routinely examined the effectiveness of foreign ju-
dicial remedies in the context of motions to dismiss based on the doctrine of forum
non conveniens. Moreover, the exhaustion of remedies requirement embodied in this
legislation is precisely the same as that which is contained in the Tortvire Victim
Protection Act, which was enacted in 1991 and which provides a remedy against an
individual who commits acts of torture, though not against the foreign state which
may be responsible for the torturer's conduct.
In the past, the Department has objected to legislation giving U.S. citizens a judi-
cial remedy in U.S. courts for essentially three reasons. First, the Department has
asserted that, under the restrictive theory of sovereign immunity, the activities of
government law enforcement agencies and their proxies are always sovereign in na-
ture and, hence, entitled to immunity from suit in our courts. Second, the Depart-
ment has feared that adoption of this legislation would trigger retaliatory lawsuits
in which U.S. law enforcement authorities are hauled into the courts of foreign
states to answer for their activities. Third, the Department has been concerned that
the legislation would lead to unenforceable default judgments against foreign states
that refuse to submit themselves to the U.S. judicial system in cases involving alle-
gations of human rights abuses.
The argument that the activities of government law enforcement agencies are nec-
essarily sovereign" ignores the decisions in Letelier and Liu, which hold that no
state has the discretion to commit acts that violate basic "precepts of humanity as
recognized in both national and international law." These decisions are consistent
with a uniform body of case law holding that torture and other universally recog-
nized abuses of himian rights cannot be characterized as official acts of state in view
of the extraordinary degree of codification and consensus condemning such acts as
violations of international law. The Department has never taken the position that
the decisions in Letelier and Liu are incorrect or that the principles that they
espouse are inconsistent with U.S. obligations under international law. If such acts
are not regarded as protected sovereign acts when committed in the United States,
they cannot consistently be regarded as "sovereign" — and therefore immune — when
The fear that adoption of this legislation would result in U.S. law enforcement
agencies being hauled into foreign covuls to account for their actions is unfounded.
Following the decision in Letelier, foreign states have been subject to suit in the
United States for human rights abuses perpetrated by their intelligence and law en-
forcement agencies in this country. Yet, I am unaware of a single case in which an
action alleging torture, assassination, or any similar abuse has been brought against
the CIA, the DEA, or any other agency of the U.S. Government based on its activi-
ties abroad. Even less reason exists to fear that the U.S. law enforcement agencies
will be hauled into foreign courts based on their maltreatment of foreign nationals
on American soil. Few such cases occur in the U.S., and adequate and effective rem-
edies exist for foreigners who might claim to have suffered such violations. While
the danger of a retaliatory action is real, it seems insubstantial and well worth ac-
cepting as the price for ensuring a fair forum for the egregious acts involved, wheth-
er they occur on foreign or American soil.
The concern that this legislation will result in unenforceable default judgments
is equally unpersuasive. When the FSIA was adopted in 1976, we faced a far more
substantial risk that Soviet bloc and other countries that adhered to the absolute
theory of sovereign immunitv would not appear in our courts. Eventually, however,
we were able to persuade those countries that it was in their interest to appear.
In most instances, therefore, a foreign state will appear and assert its rights, rather
than exposing its property to attachment. Even if a foreign state chooses not to ap-
pear, the imposition of a default judgment will create pressure on it to settle the
dispute. In my experience, while a judgment may be oisregarded when it is ren-
dered, the issue is eventually addressed and some form of relief is obtained.
For the reasons described above, therefore, and with limitations which I believe
are essential, I support the proposed legislation. And I thank you, Mr. Chairman,
and this Committee, for inviting me to testify.
Mr. Sofaer supports legislation that would amend the FSIA by making an excep-
tion to sovereign immunity in certain cases in which torture and other egregious
violations of human rights are perpetrated against American citizens. He believes
that such legislation is necessary to ensure that when such violations occur, Ameri-
cans are not denied the right to a fair hearing. , ■ r
Mr. Sofaer's support for this legislation is premised on the inclusion of certain
safeguards that would ensure its consistency with international standards and mini-
mize the risk of causing offense to foreign states. First, the legislation should apply
only to conduct that is clearly defined and universally condemned by the inter-
national community. He, therefore, opposes inclusion of an offense so vague and po-
litically charged as "international terrorism" and would propose instead that the
amendment cover acts of hostage-taking, in addition to torture, extra-judicial kilhng
and genocide. Second, the legislation should require that an American citizen pur-
sue his claim in the domestic courts of the foreign state in which the injury occurred
whenever those courts provide an adequate and effective remedy. Finally, the legis-
lation should give American citizens a remedy in U.S. courts only when the foreign
state refiises to adjudicate or arbitrate the dispute before a neutral international tri-
In Mr. Sofaer's view, legislation incorporating these safeguards would represent
a prudent expansion of existing law that will safeguard the rights of American citi-
zens. He points out that the FSIA already strips a foreign state of immunity from
suit in cases involving gross abuses of human rights perpetrated on U.S. territory.
If such acts are not regarded as protected sovereign acts when committed in the
United States, they cannot consistently be regarded as "sovereign"— and hence im-
mune — ^when committed abroad. Moreover, in view of the fundamental and univer-
sal nature of the prohibition against torture and similar abuses, the normal rules
against extra-territorial assertions of jurisdiction are not applicable.
Mr. Sofaer also beUeves that the fear that this legislation will result in U.S. law
enforcement agencies being hauled into foreign courts to account for their actions
is unfounded. Though foreign states are currently subject to suit in the United
States for human rights abuses perpetrated by their agents in this country, no ac-
tions alleging torture, assassination or any similar abuse have been brought in for-
eign courts against the CIA, the DEA or any other agency of the U.S. Government
based on their activities abroad. Moreover, allegations by foreign citizens of human
rights abuses perpetrated by U.S. law enforcement agencies on U.S. soil are rare
and adequate and effective remedies are available in this country when such abuses
Senator Heflin. Mr. Sofaer, your recommendation is that the
designation of victims of international terrorism is too subjective
and should be removed and be more specific, like "hostages" and
specific types of terrorism that was inflicted on them. Is that your
Mr. Sofaer. Yes, it is. Chairman Mazzoli testified earlier today,
and his legislation has that in it and I commend him. I commend
Senator Specter and this committee for all the work being done,
but I think on that particular issue the House bill is the better ver-
Senator Heflin. Now, you have also stated that Americans wish-
ing to pursue a claim under this proposal should be required to ex-
haust all forums provided through international channels, such as
the International Court of Justice. How realistic is that proposal?
Moreover, how important is it for the Foreign Sovereign Immuni-
ties Act to be consistent with established international practice,
and if it is important, will the proposed legislation meet this cri-
Mr. Sofaer. No, I don't condition my support on the exhaustion
of international remedies such as the ICJ. I do condition it on a
finding by the Federal court involved or the international tribunal
involved, if one is convened, that there was an exhaustion of an
22-729 - 96 - 4
available and effective remedy in a foreign country, as it now pro-
I would add to that permission, in effect, for the foreign country
involved to say to the United States, to say to the plaintiff, instead
of going to your courts, we will agree to an international hearing
on this matter; each of us will appoint an arbitrator, they will pick
a neutral, and we will agree under the established rules of inter-
national adjudication to have a hearing and to pay any judgment
I think that is how we got — in fact, I have no doubt that is how
we got the Chilean government to agree to adjudicate the Letelier
case. They were not willing to come here and adjudicate that claim
in the Federal courts, but the Chilean government — and not just
the new government. Senator, but the old government — this was
agreed to by the predemocratic government in Chile. As soon as we
came up with the idea of using the 1914 Treaty on the Settlement
of Disputes as a vehicle for doing this, setting up an international
tribunal, they accepted it.
We didn't have to run in their faces the use of the Federal courts
in the United States, and I don't think we have to in this legisla-
tion. If a foreign government is prepared to submit itself to an
international tribunal, I say we ought to be ready to accept that
as well. In fact, this principle undercuts many of the objections
raised by the U.S. Government representatives here because we
would not have to go to a foreign court and subject our people to
an adjudication there. We could insist on an international tribunal,
as well, to have claims lodged against the Government of the Unit-
ed States adjudicated.
So I think it would be a very good way to break this logjam that
is created around the world over these heinous activities. It is in-
credible to me, Senator, that the legal establishment of this world
has gone about its business and established exceptions to foreign
sovereign immunity for commercial activities, which I fully support,
and has been so reluctant and incapable of establishing meaningful
remedies for heinous human rights violations.
I say that because I think it is related to this question of where
will the trial occur. If we come to grips with the need to allow an
international tribunal in cases like this, I think we will have over-
come a large part of the reticence that seems to exist both within
this Government and in foreign governments over this issue.
Senator Heflin. Thank you. We appreciate your testimony. Each
of you gave very moving testimony and our sympathy goes out to
each of you that has suffered, as well as your friends that suffered.
We have a statement from Senator Thurmond that we will in-
clude in the record.
[The prepared statement of Senator Strom Thurmond follows:]
Prepared Statement of Senator Strom Thurmond
Mr. Chairman: The hearing this morning focuses on S. 825, which would amend
the Foreign Sovereign Immunities Act to provide jurisdiction over foreign countries
in certain cases involving acts of international terrorism. Senator Specter is to be
commended for his effort to provide recourse to those who suffer from international
There is no doubt that international terrorism is a scourge of modem society. Ter-
rorism is cowardly conduct which targets innocent civilians for undeserved harm or
death. Clearly, we should give serious consideration to any measure which would
be effective in reducing international terrorism. We should also seek to provide re-
dress whenever possible for Americans who are improperly injured by foreign coun-
On the other hand, we must be prudent and realistic in considering legislation
if it is unlikely to be effective in achieving the desired benefits. We must recognize
that this legislation, even if adopted, cannot force other countries to appear in our
courts. Thus, private actions may not be as effective to provide redress to injured
Americans or to deter international terrorism as we would wish. Further, while this
legislation is aimed at a small number of nations, we also must be cognizant of the
impact it may have on our relations with the rest of the international community.
We live in a world of sovereign nations and any standard of jurisdiction that the
United States applies to foreign countries is likely to be applied to us in return.
Therefore, it may be counterproductive to try to assert our jurisdiction over foreign
nations beyond the limit that we can hope to achieve in practice.
Mr. Chairman, I look forward to hearing from the witnesses this morning to clar-
ify these issues, and thank each of them for their time and effort in being here. In
particular, we should recognize the individuals appearing before us who have suf-
fered at the hands of foreign governments for their bravery.
Senator Heflin. We are adjourned.
[Whereupon, at 11:45 a.m., the subcommittee was adjourned.]
Questions and Answers
Questions From the Subcommittee on Courts and Administrative Practices
TO Jamison Borek
Question 1. Could you both please discuss your views on whether private litigation
as permitted by S. 825 would provide any deterrence to international terrorism?
Would this legislation send a helpful signal to foreign countries which are involved
in international terrorism?
Answer 1. Terrorists and their sponsors are typically motivated by political causes
or a desire for retaliation against their targets. They clearly recognize the possibility
of diplomatic, criminal justice, or even military responses to their actions. Yet they
are still willing to undertake terrorist attacks. Consequently, we are skeptical that
concern about private litigation in the United States would be a meaningful deter-
rent to terrorism.
For the reasons detailed in the testimony, it is the view of the Department of
State that, regardless of any hypothetical effects such legislation might have in se-
lected cases, counterterrorism policy and reactions to international terrorist threats
and incidents are best coordinated in a unified manner by the federal government.
Question 2. Could you both please discuss your views on how effective S. 825
would be, if it became law, in providing actual recoveries to injured American plain-
Answer 2. We do not beUeve that this legislation would provide an effective rem-
edy for American plaintiffs. It is likely that foreign states would refuse to partici-
pate in many such cases, giving rise to default judgments that would be difficult
or impossible to enforce. States that sponsor terrorism are not likely to have signifi-
cant assets in the United States that could be used to satisfy judgments, nor could
it be expected tiiat judgments obtained under such legislation could be enforced
Questions From the Subcommittee on Courts and Administrative Practice to
Abraham D. Sofaer
Question 1. Mr. Sofaer, I understand that you would support a provision which
gives iurisdiction in courts in the United States only when foreign countries do not
proviae adequate remedies for American citizens who have been injured. In your
view, who would determine whether a foreign remedy is adequate?
Answer 1. In my view, the courts of the United States are well equipped to deter-
mine whether the courts of a foreign state provide adequate and available remedies
for American citizens who have been injured in those states. This is an inquiry that
our courts have routinely made in the context of motions to dismiss based on the
doctrine of forum non conveniens. Recognizing the competence of our courts to make
determinations of this nature, the Congress included an exhaustion of remedies pro-
vision when it enacted the Torture Victim Protection Act of 1991 (PL 102-256),
which is identical to that contained in H.R. 934.
While the courts can be counted upon to resolve the adequacy of remedies issue
in a manner that accords with due process. Congress has recognized that the State
Department cannot be trusted to the same degree. The State Department is under
constant pressiire from foreign states and may be reluctant to risk causing any of-
fense by making a determination that it wovild be futile to pursue local remedies
in their coiuls. ft was because of the State Department's inability to make sovereign
immunity determinations "on purely legal grounds and under procedures that in-
sure due process" that Congress transferred the immunity determination to the
courts when it adopted the FSIA in 1976.
Question 2. Mr. Sofaer, in your view is "torture" likely to be a broader category
than "international terrorism. „
Answer 2. "Torture" is a much narrower category than "international terrorism ;
it is also much more easily defined and widely accepted than the latter phrase. The
term "torture" is defined in the Torture Victim Protection Act of 1991 as follows:
[T]orture" means any act, directed against an individual in the offender's
custody or physical control, by which severe pain or suffering (other than
pain or suffering arising only from or inherent in, or incidental to, lawful
sanctions), whetJier physical or mental, is intentionally inflicted on that in-
dividual for such purposes as obtaining from that individual or a third per-
son information or a confession, punishing that individual for an act that
individual or a third person has committed or is suspected of having com-
mitted, intimidating or coercing that individual, or for any reason based on
discrimination of any kind * * *.
This definition of torture derives from the United Nations Torture Convention,
which has received the endorsement of a wide segment of the international commu-
nity. Moreover, the experience of courts both in the United States and abroad has
demonstrated that this definition is manageable and confined. , ^ .
In contrast, the term "international terrorism" is politically charged and its defini-
tion is subject to intense debate and little agreement among states. Admittedly, the
definition of "international terrorism" in S. 825 is reasonably narrow. Nevertheless,
in view of the absence of consensus in this area, if that phrase is inserted in the
legislation being considered, the United States could find itself subject to suit in for-
eign courts for conduct that it considers to be wholly lawful in character.
Question 3. Mr. Sofaer, how effective do you think S. 825 would be, if it became
law, in providing actual recoveries to injured American plaintiffs?
Answer 3. For the reasons specified in my June 21, 1994 testimony, it is essential
that any legislation that seeks to amend the FSIA provide a remedy to American
victims of state sponsored torture and other egregious abuses of human rights incor-
porate adequate safeguards. A carefully drawn amendment would lead to actual re-
coveries in a number of cases for several reasons. First, in most cases foreign states
will agree to international arbitration or to a settlement rather than litigating meri-
torious human rights claims in U.S. courts. Second, experience demonstrates that,
when foreign states do litigate in U.S. courts, they generally_pay the judgments ren-
dered against them. Recovery will, of course, be most difficult in those cases in
which a foreign state defaults. In some such cases, however, the foreign state may
have non-diplomatic assets in the United States against which a plaintiff can exe-
cute. In all cases, the default judgment will be a thorn in the side of the foreign
state that will increase pressure to resolve the matter.
Questions From Senator Thurmond to the U.S. Department of Justice
U.S. Department of Justice,
Office of Legislative Affairs,
Washington, DC, September 30, 1994.
Hon. Howell Heflin,
Chairman, Subcommittee on Courts and Administrative Practice,
Committee on the Judiciary, U.S. Senate,
Dear Mr. Chairman: Thank you for your letter of July 20, 1994, regarding the
testimony of Stuart Schiffer before the Senate Judiciary Subcommittee on Courts
and Administrative Practice regarding S. 825, as introduced, a bill to amend the
Foreign Sovereign Immunities Act. Your letter also requests a response to some ad-
ditional questions submitted by Senator Thurmond. We appreciate this opportunity
to present the views of the Department of Justice on S. 825, as introduced, both at
the Subcommittee hearing and in response to Senator Thurmond's questions.
The Department of Justice is totally committed to the fight against international
terrorism by all effective means. Senator Thurmond's questions go directly to the
core issue of the effectiveness of S. 825 as a remedy to victims of state-sponsored
terrorism. In our view, S. 825, by extending the jurisdiction of U.S. courts over suits
alleging deliberate wrongdoing by foreign states, and by authorizing prejudgment
attachment of foreign state property in such suits, would not be an effective remedy
for state-sponsored terrorism because it goes well beyond the current international
consensus regarding jurisdiction over foreign states in tort suits. In response to
suits proceeding under S. 825, foreign states are likely not to appear in U.S. court,
and not to honor judgments rendered against them. Foreign states which sponsor
international terrorism also are unlikely to have significant assets in the United
States which might be attached. Conversely, we may be exposed to reciprocal treat-
ment by foreign states for our deliberate policies which may be unpalatable abroad.
We wish to respond to Senator Thurmond's questions as follows:
Question 1. Could you please discuss your views on whether private litigation as
permitted by S. 825 would provide any deterrence to international terrorism? Would
this legislation send a helpml signal to foreign countries which are involved in inter-
Answer 1. We believe there are more effective deterrents to international terror-
ism than private litigation. These include criminal prosecution of individuals who
commit acts of terrorism and economic sanctions against countries designated as
state sponsors of terrorism. Moreover, because of the sensitivity of such suits, we
beUeve that foreign states will be reluctant to appear to defend themselves in this
Question 2. Could you please discuss your views on how effective S. 825 would
be if it became law, in providing actual recoveries to injured American plaintiffs?
Answer 2. We do not beUeve that S. 825 would be effective in providing actual
recoveries to American plaintiffs. As noted above, foreign states are reluctant to
enter the courts of other countries to defend themselves against charges of viola-
tions of law stemming from conduct within their own borders. This makes the tort
area one with particularly high potential for default judgments, and the problems
associated with them. In addition, states which sponsor terrorism are unlikelv to
have assets in the United States to satisfy judgments pursuant to S. 825. Further-
more, because S. 825 departs from the current international consensus, it is unlikely
that judgments based on it will be recognized and enforced in foreign jurisdictions,
or that terrorist states would have significant assets in any jurisdiction which might
honor our judgments under S. 825. Thus, we view S. 825 as providing little chance
of realistic relief to U.S. plaintiffs while it exposes the United States to adverse-con-
Question 3. You raise a concern in your written testimony about exercising pre-
judgment attachment on foreign governments' commercial property, because of the
reciprocal exposure of the United States. What alternative provision, if any, would
Answer 3. We do not see any practicable alternatives which fulfill the same func-
tions as prejudgment attachment. As outUned in our testimony, enlarging the pre-
judgment attachment limitations in the Act poses foreign relations concerns and in-
vites reciprocal treatment by foreign states where United States assets are located
abroad. 'Die United States, which has more overseas assets than any other country,
is most exposed in this regard. We are wary that, while well-intentioned, S. 825 will
lead to the entanglement in judicial proceedings of United States property overseas,
while creating little real benefit to U.S. plaintiffs because state sponsors of terror-
ism will have little or no property which might be subject to attachment in this
I hope this letter is responsive to Senator Thurmond's questions. I am happy to
respond further to any additional questions or thoughts that you, or other members
of the Subcommittee, may have on this subject.
Sheila F. Anthony,
Assistant Attorney General.
Additional Submissions for the Record
LAW OFFICES OF
laX) NEW KAMPSHIRE AVENUE. N W
WASHINGTON. OC 20036-6804
June 16, 1994
Senator Howell Heflin
Subcommittee on Courts & Administrative Practice
U.S. Senate Judiciary Committee
223 Hart Senate Office Building
Washington, D.C. 20510
Dear Senator Heflin:
We are grateful for the opportunity to submit our views for the
written record of the Subcommittee on Courts & Administrative
Practice of the Senate Judiciary Committee on the proposed amendments
to the Foreign Sovereign Immunities Act of 1976 (hereinafter "FSIA")/
28 U.S.C. §§ 1602-1611, addressed by S.825 and H.R.934. Our interest
in this matter stems as lawyers for the family of a victim of what
can only be categorized as an atrocious, inhumane act: the terrorist
bombing of Pan Am Flight 103 in which 270 innocent men, women and
children, including 189 Americans, were killed.
International law, as advanced by the United States and the
international community for over thirty years, forbids and condemns
attacks upon, hijacking of, or the deliberate targeting and
destruction of, civilian aircraft, no matter what the underlying
reason.' In order to seek justice and obtain accountability, we
have filed on behalf of our client, Bruce Smith, the first American
civil suit against the government of Libya for the December 21, 1988
bombing of Pan Am Flight 103.^
' For example, see The Convention on Offenses and Certain
Other Acts Committed on Board Aircraft (Tokyo Convention),
20 U.S.T. 2941, T.I.A.S. No. 6768 (1963); The Convention for the
Suppression of Unlawful Acts Against the Safety of Civil
Aviation, (Montreal Convention) 24 U.S.T. 564, T.I.A.S. No. 7570
' Smith v. Libva et al .. Civil Action No. 93-2568 (D.D.C.
December 15, 1993 ) (Sporkin, J.). The action also names as
defendants: the Libyan External Security Organization, Libyan
Arab Airlines, and the two indicted suspects, Abdel Basset Ali
Senator Howell Heflin
Re: S.825 & H.R.934
June 16, 1994
For the benefit of the record. Attachment "A" contains several
newspaper articles pertaining to our case and surrounding issues.
Unfortunately, in pursuing this quest, we are hindered, rather than
helped, by the arcane and anachronistic concepts that predominantly
overwhelm the FSIA.
We, therefore, welcome this opportunity for Congress to revise
the FSIA so that justice can be served in our case and in the cases
of other families affected by the wanton destruction carried out by
state sponsors of terrorism in violation of international law. To go
over basics, because basics are what this revision is all about,
justice requires in cases such as Pan Am Flight 103 the punishment of
the perpetrator. But criminal punishment — assuming it is a
realistic prospect — is by no means the sole remedy. Nor is it, in
this particular case for that matter, a means by which all
responsible individuals could be punished for terrorist acts
committed against Americans and their family members.
One only has to review the captions in the criminal indictments
filed in the United States and United Kingdom to realize that the
only named defendants are two Libyan nationals. Yet, by the factual
allegations outlined in these very same indictments the government of
Libya, and several named high level officials, allegedly employed
these individuals as intelligence agents and purposefully directed
In the case of Pan Am Flight 103 the murder trail, as repeatedly
affirmed by the American and British governments, leads straight to
the Libyan government leadership, including Colonel Mu'ammar
al-Qadhafi himself. But, because it is accepted international
practice that states and their leaders are generally immune from
criminal proceedings in other countries, Libya's leadership has been
able to, and likely will, evade punishment. Justice will not be
accomplished absent a total military defeat of Libya which would then
create an opportunity for a trial such as those held at Nuremburg and
Tokyo following the Second World War. The fact remains that it is
impossible given our current state system to haul a foreign
government or its leaders into a United States court for the purpose
of criminal punishment.
There is, however, an important alternative which can serve as
an effective remedy. In the case of terrorist states, the prospect
of a substantial civil judgment should be seen as a twin pillar to
criminal prosecution. Governments or their officials have, in the
Al-Megrahi and Lamen Khalifa Fhimah. Mr. Smith's wife, Ingrid,
perished in the bombing.
Senator Howell Heflin
Re: S.825 & H.R.934
June 16, 1994
past, been held accountable in our domestic courtrooms for civil
damages resulting from acts of torture or massive deprivation of
human rights.' At least one pending' action seeks civil remedies
based on circumstances that fall within the category of crimes
against humanity.' Still, especially in the area of human rights,
victories under the FSIA have been rare and almost impossible to
obtain due to the increasingly constrictive interpretation of the
FSIA given by the American judiciary.
Thus, for example, in the case of Saudia Arabia v. Nelson ' the
United States Supreme Court held that even though the government of
Saudia Arabia, through its police officials, may have engaged in acts
of torture against an American citizen — after that citizen was
induced to travel to and take employment in Saudia Arabia by virtue
of actions that that government took in recruiting him, through
advertisements in American newspapers — the government of Saudia
Arabia was nevertheless held to be beyond the reach of United States
E^ven in the rare instance where a state could be held
accountable under the present interpretation of the FSIA by a United
' See generally Filartiaa v. Pena-Irala . 630 F.2d 876 (2nd
Cir. 1980) (Paraguayan official can be held liable for deliberate
torture perpetrated under the color of official authority); Forti
v. Suarez-Hason . 672 F.Supp. 1531 (N.D.Cal. 1987) (Allegations of
murder and torture against former Argentinean general allowed to
proceed under Alien Tort Claims Statute); Von Dardel v. Union of
Soviet Socialist Republics . 623 F.Supp. 246 (D.p.C. 1985)(Soviet
Union denied immunity for violation of diplomatic immunity
arising from arrest, imprisonment and possible death of Swedish
diplomat Raoul Wallenberg); Letelier v. Republic of Chile .
488 F.Supp. 665 (D.D.C. 1980 ) (Chilean government does not possess
iauBunity for government executed assassination that occurred in
the United States ) .
• Princz v. The Federal Repu blic of Germanv.813 F.Supp 22
(D.D.C. 1992) (American nazi concentration camp survivor seeking
deuaages for nazi atrocities committed during World War Two) .
'113 S.Ct. 1471 (1993). Although the claim was based on
Nelson's injuries arising from his alleged detention and torture,
due to the restrictive language of the FSIA Nelson was forced to
bring suit under the "commercial activity" exception of § 1605
(a)(2) and not the "non-commercial tort" exception of § 1605
(a)(5). H.R.934 would allow actions such as Nelsons to proceed
to the merits.
Senator Howell Heflin
Re: S.825 & H.R.934
June 16, 1994
States court for an act of state sponsored terrorism, it is difficult
if not unlikely that collection of the judgement will ever occur.
The most telling example is that of "the widow of former Chilean
diplomat Orlando Letelier and her unsuccessful attempt to attach
Chilean state property to satisfy a judgment obtained against Chile
for the 1976 assassination of her husband.' That case amply
demonstrates the dilemma and illustrates the need to adopt the
language proposed by the present amendments with respect to execution
of judgments. After all, what benefit is the prospect of achieving
civil accountability against a state if an aggrieved plaintiff can
not execute upon the verdict?
S.825 and H.R.934 are designed to overcome these and other
problems. Most importantly, they would enable American citizens, or
their survivors, to seek civil damages from states responsible for
the most blatant contravention of internationally guaranteed human
rights — no matter where the act occurred. Furthermore, the
amendments would ensure those rights are more than window dressing
but, in fact, substantive and actionable rights.
The matter of Pan Am Flight 103 is a case in point. Although it
is not essential for the purposes of our suit that the FSIA be
amended, in so far as we allege that Pan Am Flight 103, as an
American flagship aircarrier, was — for all intents and purposes
under American law — part of United States territory (the Congress
may, depending upon the language adopted in its final revision, wish
to avail itself of the opportunity to more clearly define the
definitional parameters as to what constitutes United States
territory under the FSIA'), we nevertheless would welcome the
' Letelier v. The Republic of Chile . 748 F.2d 790 (2nd Cir.
1984) (Plaintiffs not permitted to attach assets of Chilean state
airlines to satisfy judgment obtained against government for
assassination of former Chilean diplomat) . The Court explicitly
recognized the true problem as it opined that "Congress did in
fact create a right without a remedy." Id. at 798.
'It would be helpful if the Congress clarified the meaning
of the phrase "in the United States" as it is used in § 1605
(a) (5) (non-commercial tort exception). The Supreme Court, while
noting the different territorial limitations imposed by
§ 1605 (a)(2) and (a)(5), passed on the opportunity in Argentine
Republic v. Amerada Hess Shipping Corp .. 109 S.Ct. 683 (1989).
For example, at the very least, the FSIA should be made to
comport with the territorial language of the Antiterrorism Act of
1991, 18 U.S.C. §§ 2333 et seg . ■ which was expanded to include
Senator Howell Heflin
Re: S.825 Sr H.R.934
June 16, 1994
proposed amendraents in order to enable ourselves and other families
of victims to have a more clearcut basis for suit. There is no
rational basis for a distinction between a case in which an American
is killed by a terrorist attack while working at his desktop computer
in the World Trade Center from that in which an American is killed
while working on a laptop computer in an American aircraft 31,000
feet above the ground over Europe or elsewhere.
We understand that the Department of State has, as they have in
the past, expressed opposition to these amendments. Their reasoning
stems primarily out of a perceived fear that the dictates of
reciprocity might create a situation whereby American officials would
be increasingly brought to account in foreign courts, including that
of Libya or other terrorist states. There is, of course, much to be
said for symmetry in the law. But it can be taken to an excess.
Here symmetry — and by that we mean the equal application of
the law — is assured in so far as whatever system would bring
officials to account would have to be acknowledged as one capable of
fair, impartial judgments by an independent judiciary. There are
few, if any, jurists in the world today who would be willing to
subscribe to the idea that Libya's courts, or those courts of states
that would be affected by S.825, would meet that standard. For that
reason, the much touted reciprocity arguments pertains more to
abstractions than reality. Its only real effect is to prevent the
achievement of justice — that is, holding the ultimate perpetrator
of atrocities like Pan Am Flight 103 to account by methods that are
within our means, namely civil damages.
The FSIA must also be allowed to evolve with the transformation
of international law and not continue to be interpreted merely by its
legislative history. By its very nature, customary international law
is transitory and the FSIA must be allowed to expand with the
the Special Maritime or Territorial Jurisdiction of the United
States, 18 U.S.C. S 7.
In order to afford greater protection to toerican citizens
overseas, this Congress may also wish to review whether the
grounds of an American Embassy should constitute United States
territory for the basis of a civil action against foreign states
filed under this proposed legislation. The courts have clearly
decided otherwise as illustrated by the string of cases arising
from the Iranian hostage situation of 1979-80. See Persinoer v.
Islamic Republic of Iran . 729 F.2d 835 (D.C.Cir. 1984); HcKee], v.
Islamic Republic of Iran . 722 F.2d 582 (9th Cir. 1983);
Ledoerwood v. Islamic Repu blic of Iran. 617 F.Supp. 311 (D.D.C.
Senator Howell Heflin
Re: S.825 & H.R.934
June 16, 1994
development of the norms of customary international law held to
beoutside the scope of a state's claim of immunity. The Ninth
Circuit stated it aptly: "if violations of ius cogens [i.e.,
slavery, torture, piracy, genocide, attacks on civil aviation]
committed outside the United States are to be exceptions to immunity,
Congress must make them so."*
Since the adoption of the FSIA in 1976, amendments to the FSIA
have been regularly proposed and defeated on the recommendations of
the Department of State. In an era in which innocent Americans are
targeted by terrorists specifically because they are Americans,
Congress must act to afford the victims and their families some
manner of recourse in which justice and accountability can be
achieved. To fail to do so twice punishes those victimized; first by
the terrorists who caused them harm, and secondly by the country
that, after having failed to protect them from harm, precluded them
from the opportunity to seek punishment of the perpetrators, often by
the only means available in these situations: civil damages. Our
views on the general subject of civil remedies against terrorist
states and on the pending bills have been more fully presented in our
speeches and writings, examples of which are submitted herein for
your review as Attachments "B" and "C" respectfully.
We thank you for your attention to this most important subject
and urge you to amend the FSIA to allow Americans or their surviving
family members to hold foreign states civilly liable for their
terrorist acts committed abroad. Should the Committee wish for us to
expound further on any of the views presented in this letter or the
attachments, please do not hesitate to contact us at (202) 785-9281.
Allan Gerson Mark S. Zaod
Professor of International Law Member of the N.Y.,
and Transactions, C.T., and D.C. bars
The George Mason University
•Siderman de Blake v. Rep ublic of Argentina . 965 F.2d 699,
719 (9th Cir. 1992) .
Wednesday. December 15, 1993
■ A victim's husband is
demanding $15 million, to prove
state-sponsored terrorism is "too
By MATTHEW COX
A former Pan Am pilot whost m!e
»-as killed in the bombing of Flight 103
is suing Libya for $15 million for its al-
leged role in the 1988 terrorist attack
over Lockerbie, Scotland.
The lawsuit could result in a civil
trial on many of the same issues
spelled out in a 1991 criminal indict-
"Libya hasn't been penalized for
sponsoring the attack." said Bruce M.
Smith, now a pibt »-ith Delta Airlines.
"This gives us the chance to have a
trial where we can determine, in the
eyes of the world, yes, ihey did it: yes.
Smith's lawsuit, expected to be filed
today in U.S. District Court in Wash
(See MAN, Page B-2)
Man Sues Libya over Bombing
(MAN, from Page B-1)
ingtort, D.C., name* as defendants
the Libyan government; its intelli-
gence agency^ Libyan Arab Air-
lines, the government-run airline
whose offices in Malta allegedly
were used to store the bomb's ex-
plosives: and two Libyan intelli-
gence agents accused of carrying
out the attack.
A spokesman for the Libyan mis-
sion to the United Nations Hid not
immediately return a telephone call
Libya has refused to produce the
two agents for trial, and the UN's
effort to force their surrender
through sanctions has been unsuc-
"We're at an impasse." said
Mark S. Zaid. a Washington. D.C..
lawyer who is handling the case
along with Allan Cerson. former
chief counsel to the U.S. mission to
the UN. "This is one way lo move
fonn'ard. This is one way to achieve
accountability and to receive com-
The Dec. 21. 1988. bombing
killed 270 people, including 35 stu-
dents enrolled in a S>Taajse Uni-
versity study abroad program and
five others with ties to Central
Smith's suit makes many of the
same allegations Outlined in the
U.S. Department of Justice's No-
vember 1991 indictment accusing
Libya of masterminding the attack.
It alleges that Libyan leader Muam-
mar Qaddafi ordered the bombing,
and that two Libyan agents. Abdel
Basset AJi al-Megrahi and Ijmen
tChalifa Fhimah. used their connec-
tions to Libyan Arab Airlines to
carry it out.
Smith filed > similar lawsuit
against Libya in Winburgh. Scol-
bnd, about seven weeks ago. Zaid
Smith. 57, is one of a relatively
small number of family members
who accepted $100,000 from Pan
Am's insurance carrier to settle po-
tential lawsuits against the airline.
Another 225 families sued Pan Am
and won a verdict that said the air-
line's poor security contributed to
the attack. The airline is appealing.
Smith said he used his $100,000
to fund a successful tobbying cam-
paign in Washington. D.C.. aimed at
establishing an anti-terrorism re-
ward program. The program, ad-
ministered by the State Depart-
ment, offers up to $4 million for
information that helps track down
Smith's wife, Ingrid. died while
traveling from the couple's home in
England to New York, where the
31-year-old podiatrist planned lo
meet her husband for Christmas.
Today, Smith lives in a suburb of
Daytona Beach. Fla.
Smith said he hopes to win an
award against Qaddafi's govern-
ment that is large enough lo con-
\Hnce other countries not to engage
in state-sponsored tetrorism.
"I want to teach any country
that uses terrorism as a way of in-
fluencing foreign policy that it's too
expensive." Smith said. "They
might enjoy it. but they can'l afford
B16 THE WALL STREET JOURNAL THURSDAY. DECEMBER 16. 1903
Pan Am Sues Libya
Pan American World Airways Inc. and
a lormcr Pan Am pllol filed spparale civil
siills scpkinf lo hold Ihe eovernmcnl of
Ubya liable tor damaces in connecllon
wilh Ihe I9R8 bomblncol Pan Am niRhl 10.1
over Lockerbie. Scolland.
The lawsulls are Ihe first apilnst Mhya
slemminf from Ihe disaster, which killed
270 people. But ihe Icjal aclinn.s face
enormous legal and polUical hurdles. Some
families of crash victims also said Ihcy
were concerned thai Ihe ca.ses would divert
altcnilon from cfforls to recover damaees
dircclly from Pan Am In suits currenlly
pending In New Vnrk.
Pan Am's sull. which was filed In
Edinhirrph, Scotland, seeks UTS million for
loss of business and for the value of the Inst
aircraft ;n Rocklelgh. N.J., Gregory
Buhler, a l.iwyer tor Pan Am, which ceased
night operations and sought federal bank-
ruptcy-law protection jn 1991, .said the sull
was part of the normal course of winding
up Ihe company's affairs for credllors
Bruce Smith, a former Pan Am pilot
whose wife died In Ihe crash Hied a
separate lawsiul In U.S. District Qiurl In
Wa.shlngtnn, seeking J15 n.llllnn Mr
Smith previously filed a similar scllon In
Under Ihe doctrine of sovereign Immu-
nity, foreign nations generally can'l he
sued In U.S. courts, and the law Is believed
to be only slightly more plalntlfffrlendly
n Scotland. The cases are likely lo require
he cooperallon and support of U.S. and
United Kingdom aulhorllles, who so far
have focused on pursuing sanctions and
criminal charges agaiasl ihe Uhyans
rather than civil relief. "
'This raises more quesllons with me
than It answers," said Ue Krelndler a
lawyer who Is currently suing Pan Am' In
mZT "," l^hA" »f » number of Pan A m
103 victims families, "None of Ihe families
know of anywhere support whal Ihey are
U7 log to do." Mr. Krelndler said of Mr
Smith s sulL Ubya has made a number of
<dcl ms families, but many have rejected
the Idea of accepting any money wlihout a
resolution of the criminal charges.
. rx^l'"!! *?,^™"' " 'S"yfr for M'r. Smith
said he believes foreign nations should not
be Immime from suits In cases of alleged
terrorism, and he said pursirlng damages
was appropri.ite while Ihe criminal ca.se
proceeded. He added, "I believe the Issue
of compensation can stand apart from the
issue of punishment."
PUni.ISHF.D ^VITII THE NF.W YORK TIMT.S AND TIIF. WASIIINOTON rO.S|-
EilKtil In rari> %Vciliit>il»y, January IJ, IW'' rritilril in Nrw Vnrk
LETTERS TO THE EDITOR
Taking L'hya Ip TVinl
I( hw been more Ihsn five yean
since llic lerrorisl bomhing of Pan
Am nighi 103 over LnclcciMc,
Scoll.intl. an ac( of prcnifdilnfetj
nmriler ih.-vi ciujcd (he ile«lhs of
270 ncrsnn.t, T\ui despite eihaus-
live invf,^li(^.Tlioiis we rcniain no
do«r to iolving ihsl crime Ih-in
We were in November 1991. when
llic Uniccd .Sl.ilci and Uriuin an-
nounced the inriiclincnl of l«-fl
Uhynn intcHijencc oflicerx as Ihc
l;il>y« coniiniit^ to de/y Ihe
rdJOhllioni inllinjt'fn: it lo UAiid
over llic iitcnit. And even if prnj.
eoilion of Ihe two l.ihy.-jns in «n
American or Hriiish court were
poisihic, it vcntUl hnrdly provide
• nadcqintefinnic lo this tragedy.
SiirJi 3 iri.ni trmild not be JiVcly to
fcid to inditpiitahlc proof of Ub-
Van complifjiy. Or the two coiil<I
plead jiidty and avert a trisl.
With no proof and no full •€-
oniniin^ xnrKlinni ngiinil IJhyn
would be lifted and nihcr .ttnlc
AM)n5ori of terrorUm would sec
tne ini«ll price they wonid pay
for their lets.
On anything he done to force
"Libya's hand. lo insure acconnt-
ahilily and (he aiciimption of re-
iponjihiliiy? The US. gnvernmcht
JCcmi convinced lHal criminal
^iinix]im^hl Vi the Jofe means of
Abtaining jmlicc. lint there arc
"other paihi to juslice, including
JiviJ darriajrct in a court ot Ut*.
IwjcrH. Dvil damagct. pnrsiiant to
idvil trial on merits, apncant to be
Ihc bcjl way, if not a perfect one. to
A dvil jiiji cloa not ircV to re-
place the pmspcct of criniinal pun-
ishment httt to reenynlT/. in Hmita-
lioris, SovcTcipn nnlions cannot be
niini.thftj n^ if tticy ^«xreindi\idu«lT.
Ibry ^cnn. hon-cvcr, I< dclmrd
from future .VU of i\\rj.n\ conduct
by being held acrmmtahle.
To cn.Mirc arcounl.ibilily (hroticb
A dvil .mil t*'o hurdler mm( oe
overcome. I.ihy.i nerdt to be
Stiippr<I i>f any vrslige of JO'.Trnjtn
immunity that it hmindn U^*^, Inw.
In a crrrmony at Ailinstrtn Nation-
al C'cnv.iery on t>cr. 21. Trc^'dcnt
nill Ointon Mated thai the atlAclc
on r»n Am nithi in.\ wait a df Mkt-
aic niiftcV on iiw. UnilctI Si^in. A:*
nirli.-I ibya drvTiT* n<* ptntc^Un
fmrii I civil siiii in iXjJi. fOtKt. Yet.
in tlic p.vtt Ihe WS. gnvenimenl hai
joined forces «-i(h offendrr jfnie*
to prolfct their right lo intnumity
from civil .tiiit.
Ttie US. go\-crnment «-otdd nUn
nerd lo stop refining to jhare evi-
dcncc implicaiihg 0*bp on the
grour^I that il woidd compromise
the tttr. of jlich evidence in a crinii*
nal prmcoition. Today, the p*os-
p«n of criminal prrLtmilion icenu
■ Altlioiigh the cvidenre prr.tenletl
ifi the U,*;. criminal trvtirJment ij
said to be corvrlinlve. il fnlls to
name the gosTrnmeol ot Ijbya.
Only itj tn-o allrgrtl agcnLt arc
narnrri as defcndanl^ A riWI tri-tl
wmild remetly that by frrmint at-
lenlioo on thego^Tjntnmi of Unya.
And. unlike a crinunal trial, it only
rcrjiiircs ptnftf of a prcpondcranre
of evidence; not Ihc mo»c ezading
lest — "beyond a reasonable
rJoaht" — ittcfl in a criininaJ trial,
MARK ?:. 7Ain.
On Dec. }S. ihe yrriters ftUitsuit
in ihe f/.V. Phln'cJ Cnurl ylv lh(
Dtiin'a a/ Ce/tmtfiLi n^ninst lite
%t7temntrnt of h'hytt, m f^km// af
the htnhn'ui **/ IntriA Smii\ vh^
iTie^an ton Am llij^ht 10}.
rnn Ni-w voff/c tm^/uS EDITORIALS/LETTERS Monday, apuu. m. ^^9^
What Other Choices?
Tn llic F.diior:
"LUiyn niliiks nn l.iK-krrltlr" (r«tl-
Inrlnl. Mnrrh 2R). sup.p.PMlnp, that llw
Unllctl Sl.TlCS and Ilrltntn acrcpl l.lli-
yn'.i offer nf a trial nt llw llitntw of
two Libyan nRcnts susr^-rird of
iHimhinr. Pan Am I'llpjil iu;i p<iluis In
n way out of the hnpassr and llic
piisslIillUy of achirvhif; sonic niras-
nic nf nrcotintal)lliiy.
Unforlunalcly. Ilir plan, whirli w.-is
widely dlscusKcd by tin: .<;rotlisli
piT„« la?;! January. Itns apparcnlly
hern rcjrrteil by nilllsh and Ainrri-
ran nfflciMs as unarrrptalilr, A simi-
lar plan was prrsrntrd by tbe r.p.yp
linn Govprnn^rnl lo every Srrtirily
Council mcmlvr. lurbidinR Ihr Unit
ed Stales, lasi l>cccinl»rr. and was
Does It Indy matter where a rrimi:
nal trial takes place, as Ionf» as tl>c
prcsUllng rotirt cnhtorms to Amci I-
can or nrlli-sh' ktnmiards o( due pro-
cess and evidentiary fnlrnrjs?
Opponmis of Tlin llnp.ne plan ar-
pjic that )( Is iKit consislrni willi llnll
e<i Nations Scnirily Cmincil rcsohi-
linns (hat call for surrender n( Ihe l\"u
named IJhynn iiaiinnals osicnslltlt
rcspnnsildc for Ibc lKimblnp„ even
ihimpb (here is no exlradlilnii treaty
l)riwccn Libya and tiie United Slaicf
nul Justice In such an Iniernatinnal
slaml-nff mnv require uimliflcation nf
pnsiilnn-s nl Ibc Uullr<l Nations.
Should Ihc Clinlnn Administration
continue refusing In endorse sucl|
plans for n criminal trial wiisidr of
Ihe Unilcfl Stales or llrllain. il wmild
l>e placing Its hope.s on less Iban nir-
liRbt snncllnns and Ihe Intp'lril Ibreal
of armed force against Libya. n»ere
Is another option — support of civil
litigation ap.alnst Libya.
Tlial mule might nol carry the
same rlnjt nf vindlcailon as criminal
- convictions, hul h has ibe ndvaninnrs
of iKing In the realm of Ihe possible
and of providing some measure nf re-
lief lo the victims and tlicir families.
Allan gf.hson. mark s. 7aii»
WnslifnRton. April 1. IM4
The wrilerx. Ifm'>*rrs for the fniiUty of
a l*nn Am riiphi lOH virf/m. Iin»«r
filetl suit a^oinat l.ihyn in a rrtlcml
court in Vl'nsiifn/ifon.
Remarks by Dr. Allan Gerson
(Professor of International Law and Transactions at
George Mason University)
Panel on "Sovereign Inununity: A Comparative Perspective"
Delivered at the 88th Annual Meeting of the
American Society of International Law
April 8, 1994
Poetry, wrote Nobel Prize winner Czeslaw Milocz, strives to
instill order, rhythm and form as antidotes to chaos and
nothingness. The Law has no less an aim. In the realm of the law,
order and form has as its hallmark accountability. In criminal
matters, this means punishment of the offender; in civil matters,
it weans compensation to the victim or his family. Like Art, the
law has to work with the materials -- the particular canvas and
paints -- at its disposal. If the artist or the jurist attempts,
for example, a composition larger than the canvas, the likely
result is not order, rhythm and form, but more disorder.
This is a truth which the law has sometimes ignored, not least
in dealing with the subject of war crimes, terrorism and the like.
As Professor Frank Newman, former Justice of the Supreme Court of
California, put in his discussion yesterday on the establishment of
a war crimes tribunal for the former Yugoslavia, "We are witnessing
an addiction to criminal punishment. In fact, civil remedies can
often be the most effective remedy."
I wish to emphatically endorse that view — that we can be
addicted to criminal penalties at the expense of civil remedies —
in the particular context of Pan Am 103, the airplane which
exploded over Lockerbie more than five years ago, the victim of a
terror attack which killed all 279 passengers and crew aboard and
in the process led, or hastened, the death-knell of America's
flagship carrier - Pan American Airlines..
I offer my remarks today not only in my academic capacity, as
one who has pondered about the role of punishment as deterrence, or
in my hat as an ex-U.S. government official who dealt, sometimes
extensively, with international terrorism, but also as an attorney
representing a family of a victim of the Pan Am 103/Lockerbie
bombing. Although December 21st of last year marked the fifth
anniversary of that tragedy, not a single family has, in the
interim, seen a single penny in compensation from the government —
Libya — deemed by the U.S., the U.K., and the U.N. Security
Council as most directly responsible for the bombing.
Unlike the other families of victims of Pan Am Flight 103 who
chose to file suit exclusively against Pan American Airlines for
its gross negligence in bomb detection procedures — a finding
which has recently been affirmed over a strong dissent by the U.S.
Court of Appeals for the 2d Circuit — the family which I represent
viewed and continues to view Pan American Airlines more as victim
than as victimizer. With this in mind, my client chose, instead,
to bring suit against whom it perceived to be the true villain —
the Government of Libya. On December 15, 1993, my client filed
suit in Washington, D.C. against the two alleged Libyan agents
named in the United States indictments of November 13, 1991;
against Libyan Arab Airlines which ostensibly employed them under
cover in Malta where the bomb was allegedly planted, and against
the Government of Libya — their employer.
Obviously, I am not at liberty to discuss any aspects of this
currently pending case, in which I am involved as counsel. But, in
more general terms, I should like to focus my remarks on the need
that this case represents for greater adaptability in permitting
civil suits to become a vehicle — not, surely, an exclusive one —
for addressing state accountability for support of international
First, let me offer some personal perspective on the
difficulties of criminal prosecution of state-sponsored terrorism.
In 1979, while serving as an appellate attorney with the U.S.
Department of Justice, I was recruited to help establish its Office
of Special Investigations (OSI); an office whose mission was to aid
in continuing to bring to justice those deemed responsible for
participation in the most horrific form of terrorism — the
genocide of the Holocaust. Because the U.S. Government had no
basis for assertion of criminal jurisdiction abroad over the
perpetrators, OSI's efforts were tied to civil proceedings aimed at
revoking the citizenship of naturalized Americans suspected of
having collaborated in such actions.
The gravamen of our complaints was fraudulent procurement of
citizenship through misrepresentation of their pasts — a fact
which, if disclosed, would have barred entry into the United
States. As these were civil proceedings, the standard of proof was
not that of a criminal trial — beyond a reasonable doubt.
Perhaps, OSI, the Government of Israel, and the U.S. Government
overlooked or undervalued that fact when, in the case of Ivan
Demjanjuk, it was decided, after having stripped him of his U.S.
citizenship, to deport him to Israel to stand trial on charges of
having run the infamous Treblinka gas chamber. As we know, in the
end Demjanjuk was acquitted — and not out of any lack of zeal by
the Government of Israel to gain his conviction. Meeting the
criminal standard of proof became simply too difficult an obstacle
I dare say that criminal conviction of the two Libyan agents
indicted by the U.S. and U.K. may run into equally-formidable
- 3 -
obstacles. This very possibility demands, if justice be our true
objective, that we consider alternatives.
In this regard, let roe cite a defense similar to that raised
by Nazi collaborators which, should there ever be a criminal trial,
that these Libyan agents would be 'likely to raise in their defense
— namely, that they should not be punished for acts that were the
product of the times, of "a different era" when selective terrorism
appeared to have been condoned by the international community. In
a communique of late 1993 by Libya to the U.N. Secretary General,
Boutros-Boutros Ghali, on the subject of its role in the Pan Am 103
incident, the government of Libya had this telling remark to make
about its support of terrorism: "The role played by the Jamahariya
was necessary and normal at that stage and within the context of
the international and regional circumstances prevailing at that
time. This role was not meant at all to be a departure from the
rules set by the international community to govern its dealings and
At "that stage", Libya meant undoubtedly to encompass the fact
that the international community had voted not long before the
Lockerbie incident to condemn the U.S. legal system for the
audacity of extraditing a purported terrorist — Abu Eain -- to
Israel to stand trial for murder. Terrorism, the UN General
Assembly declared by an overwhelming majority in response to the
U.S. extradition, was to be applauded, not condemned, where
conducted in the name of liberation from "alien, colonial and
Can Libya or its agents contend that, in a criminal
proceeding, they are being judged by an unfair standard, that even
assistance in the destruction of a U.S. civilian airliner was not
improper in the context of the politics of that period and that,
moreover, it was a political crime? Yes, I believe Libya can be
expected to raise this defense directly or indirectly — and to
raise it as much for political as for legal effect.
Surely, Libya could, for example, point to the case of the
PLO. The FLO'S record reveals a long roster — certainly no less
than that of Libya — of terrorist acts, acts deliberately
committed against innocent Americans as well as Israelis. Yet, as
soon as Israel opted for an accommodation with the PLO, the U.S.
Administration adopted an attitude of open embrace. Syndicated
journalist E.J. Dionne, Jr., heralded — not atypically. The
presence of an array of past U.S. Presidents, Secretaries of State
and a good portion of the U.S. Congress to witness the Rabin-Arafat
handshake at the White House as a "triumph of politics over
Libya may, indeed, ask why that triumph of politics over
principle does not apply to Libya as it applied to the PLO. After
- 4 -
all, as far as I know, the U.S. Government's position continues to
be that the PLO was responsible for the assassination of the U.S.
Ambassador to Sudan in 1979, of which it purportedly has a tape
recording of Chairman Arafat congratulating the killers for their
perfornance. Of course, Leon Klinghoffer, the paraplegic who was
pushed off the Achille Lauro in 1985, was an American citizen, and
his death was just one reason why the U.S. Congress repeatedly
deemed the PLO to be a terrorist organization. Yet every statute
condemning the PLO and outlawing any financial assistance has been
quickly repealed and replaced with declarations of support for
massive foreign aid assistance.
Is then state responsibility for terrorism — in the sense of
criminal culpability — a matter to be handled by U.S. courts? Can
one even vaguely speak of a single standard when it comes to such
matters, and is not the application of a single standard the
absence of the rule of law? Surely, the criminal case against the
two indicted Libyan agents is a case against Libya, although Libya
has not been named as a defendant. Libya, on behalf of or through
these agents, would surely argue that we are dealing with a
political question not deserving of a court's consideration. I am
not suggesting that I sympathize with that position. My aim is to
point out that a criminal proceeding may suffer a fate analogous to
that of the Demjanjuk proceeding — going one step forward and two
Let us be clear. International terrorism is the flip side of
aggression. Aggression is directed against states; terrorism is
directed against citizens. In situations like World War II, where
nations decisively and totally defeated another, a trial for
aggression is possible. In all other instances, it has proved an
This brings us to the alternative to criminal prosecution —
civil remedies against the perpetrators of aggression and
terrorism. A civil suit does not seek to replace the prospect of
criminal punishment, but to recognize's its limitations — the
stretch of the canvas, if you will.
In the case of Libya and Pan Am 103, it is the contention of
the American and British governments, as set forth in their
criminal indictments against the two Libyan intelligence officers
alleged to have planted the bombs, that the government of Libya
masterminded the bombing. For over two years now, the U.S. and the
U.K. have sought the surrender of these two Libyans to stand trial
here or in the U.K. Ostensibly, of course, it is not the U.S. and
the U.K. that are making such demands but the "international
community". But, clearly, the U.H. Security Council in passing
resolutions dealing with this issue, were doing so upon the strong
urging of the U.S. and U.K., with little support elsewhere. Yet,
after more than two years, we still seem no closer today to
realization of the goal of a criminal prosecution than we were when
the indictments were handed down. Libya continues to defy U.N.
Security Council resolutions calling for it to surrender the
agents. And, the threat of increased sanctions seems unlikely to
force Libya into a position o£ what it has termed national
humiliation. Moreover, even if surrender of the two Libyans for
trial in an American or British Court occurred, that, in itself,
would hardly provide an adequate accounting. Insofar as such a
trial is likely to lead to Libyan complicity, the two might choose
to plea bargain to avert a trial. Without evidence or a full
accounting, Libya might well escape sanctions and other state
sponsors of terrorism would benefit from the lesson that in the
final analysis they will not be held to account for their deeds.
What remains is the possibility of a different kind of justice
through imposition of civil remedies. Let me make some suggestions
for ways in which this avenue might be pursued.
1. On the macro-side, establishment of a U.N. Claims
Commission to achieve compensation for the victims of international
terrorism by those states determined by the U.N. Security Council
to have played a role in sponsoring terrorism. This would conform
with trends set in motion by the establishment of the U.N. Claims
Commission for claims stemming from the Gulf War with respect to
Iraqi SCUD missile attacks and would give victims of state
terrorism the same new rights as the victims of aggression. Over
100 nations on behalf of thousands of individuals have already
filed for compensation.
2. Amend the United States Foreign Sovereign Immunities Act
of 1976 to clearly allow suits against nations for terrorist acts
committed outside of the United States where Americans are
Should there be a distinction between an American killed while
working at his desktop computer in the World Trade Center from that
of one killed while working on a laptop on an American aircraft
31,000 feet above the ground in Europe or elsewhere? Legislative
efforts are underway, notably by Senator Arlen Specter and
Congressman Romano Mazzoli, to strip immunity from those nations
that support or conduct terrorist activities, and for those that
commit acts of torture or genocide, no matter where the conduct
occurs. Such efforts are to be lauded. In a ceremony at Arlington
Cemetery on December 21st, President Bill Clinton stated that the
attack on Pan Am Flight 103 was a deliberate attack on the United
States. As such, Libya deserves no protection from a civil suit in
a U.S. court.
Indeed, I believe that even without enactment of new
legislation or revision of existing legislation, there exists
sufficient, if not ample, ground for overcoming any sovereign
- 6 -
immunity defenses that may be raised by a state government charged
with complicity in international terrorism. This is based, in
part, on the elevation of state responsibility for terrorist acts
against civilian aviation into a "jus cogens" - a binding norm of
international law which overrides any limiting municipal
legislation. Although the international community has been unable
to arrive at a mutually-agreed-upon definition of "terrorism",
certain acts are so clearly act's of terrorism, no matter what
definition of terrorism one may employ. This certainly includes
the act of aiding or abetting in the destruction of civilian
airliner with passengers on board. A host of international
conventions make this clear.
3. Institutionalize cooperation of government intelligence
and law enforcement agencies, with plaintiffs in civil suits,
especially where the prospect of a criminal suit arising out of the
same facts seems dubious.
Even where sovereign immunity difficulties are surmounted,
failure to obtain governmental cooperation in the sharing of
evidence can be detrimental to successful litigating claims against
governments. Nearly invariably in such instances, significant
evidence is the possession of intelligence law enforcement agencies
that is inaccessible to the public. Moreover, problems involving
the sharing of evidence in terrorism cases with civil plaintiffs
can be fairly easily resolved, where there is a will to do so.
There are, after all, many cases where classified evidence can be
protected as demonstrated, for example, by the U.S. Classified
Information Procedures Act.
The prospect of a substantial civil judgment against a
terrorist state or its agencies should be seen as a twin pillar to
criminal prosecution in the efforts of the law to combatting
terrorism. One canvas is apprehension, trial and conviction of the
perpetrator; the other is compensation of the victim or his family.
These are avenues that should be pursued in tandem, complementing
one another and without one being at the expense of the other.
Fortunately, it appears that we are making progress in this
direction and civil damages against state-sponsored terrorism may
surrender into the realm of the possible to replace the sense of
chaos and nothingness that has prevailed for too long in the law's
effort to address this issue.
INTERNATIONAL ENFORCKMKNT LAW RLPORTLR
approximaiely 14.000 undocumenicd immigrants in stale prisons and 10.00015.000 in country jails, about 75%
A prisoner transfer treaty already exists between the U.S. and Mexico. Indeed a principal cause for the
absence of larger numbers of prisoners to utilize the treaty for transfers is the shortage of personnel to process
the requests^ and the discrcliunary rejection of many requests.
Deportation would be a more expeditious means of disposing with foreign and Mexican persons
convicted of serious crimes. However the expedition would occur at the expense of the civil and due process
rights of foreign prisoners, since their views on whether they want to be deponed and whether they would
suffer hardship would not be considered as it is in the prisoner transfer treaties.
A. Terrorism and Foreign Sovereign Inimunily: The Time lias Come to
Remove the Terrorist's Legal Cloak
Pan I: A Call to Amend the Foreign Sovereign Imniuni..i:s Acl of 1976 to
Permit Civil Suits Against Foreign States for Violations of Jus Cogens and
Certain Acts of Terrorism.
By Mark S. Zaid. Esq.-"
In the field of international commerce the rules are rapidly changing to comport with the new realities
of developing technology in communication and transportation. Not so. however, with regard to international or
American law as it pertains to questions of foreign sovereign immunity. Should it. for example, make a
difference for purpose.' of jurisdiction if one were killed by a bomb while working at a desktop computer in the
World Trade Center or while using a laptop computer on an American airliner at 32.000 feet above the ground?
The recent bombing of the World Trade Center harshly reminded the United States that international
terrorism still continues and Americans are now vulnerable at home. Were it proven that a foreign government
bore responsibility for the bombing a federal coun would likely accept jurisdiction and proceed to the merits of
the claim." Not so in the case of 189 Americans killed above Ixickerbie, Scotland when Pan Am 103 violently
exploijed nearly five years ago. And not so for those persons who have been tortured or held hostage at the
^ For a discussion of the pfoblctn of absence of personnel to pfocess pnsoner innsfer requests and other prot>lems. jer MictucI
Abbcll. Fiopoitil Policy for Unuid Suuts Pnsontr Tramftr Triaiies. 9 IKT'L EwronctMEKT L. REP. 308. 309 (1993t,
- Mark S. Zaid practices law in Washinglon. D C. wtiere he specialues in Porcifn Sovereign Immunity issues and the Fieedum of
t' Set 28 U.S C f t603faH3l. This secfum. cumminly referred to as the non-cofiunercial ton eiception. ot the Futeign Sovetetcn
Immunities Act pcmiitk suits against foreign sutcs tut tons coinmtncd wuhin the United Sutcs.
Intemaiionjl Enforcement Law Reponer. Volume 9. Issue 9. Septemhei 1993. p373
INTERNATIONAI, ENrORCEMKNT LAW REPORI KR , \
hands of a foreign stale. s^
Justice requires (hat the individuals responsible for terrorist acts such as Pan Am 103 be sought out.
captured and punished accordingly. Justice also demands thai the rights of compenMiion by the victims, or
their survivors, be pursued with equal vigor. Yet dcspiic ihc fact ihai scvcrni crimes have been acknowledged
as universal^ and iherefore within the criminal and civil jyrisdictiorf of ever)' nation. American law coiuuiues
to allow terrorist slates to hide behind a cloak of immunity.
Prompted by attacks upon Americans abroad and the Senates ratification of Tlie Convention Against
Tonure and Other Cruel. Inhuman or Degrading Treatment of runishmcnl^. the Congress recently enacted
legislation granting victims or their survivors the right to recover damages through the use of the U.S. jitdicial
system for injuries incurred at the hands of individuals who committed act.'; of terrorism or tonure.^ Yet.
dcspiic attempts to do othcru-'i.ie. ihe sovereignty of offending nations was kcpi intact thereby rendering the
legislation effeciivcly wonhless. After all. notwithstanding the difficulties associated with bringing the
defendants before a civil court or effecting proper service- . what is Ihe likelihood that the responsible
individuals would be in a position lo even compensate ihc claimants?
The current Congress will soon have the opponunity to vault one of the last remaining jurisdictional
hurdles in the race against terrorists: lo permit U.S. courts to adjudicate civil claims against foreign .-Jlatcs for
their terrorist acts committed against Americans abroad.
Two simultaneous efforts are underway lo remove ihc main obstacle by amending the Foreign
f See Nclion «. Saudi Anbu. 113 SCt. 1471 (1993) (American wmticd in Saudi Anhta): l^fcrwood v. Sale of Iran. fil7
F.Supp. 3 1 1 (D.D.C. 1 9851 (American hosu^c taken in Iran); Pcrsinger ». Islamic Repwhlic or Iran. 729 F.Jd 833 (D.C. Or. 1985)
(Aracncan hosuge taken in Iran).
- Thiie include piracy. jlav« trade, ifuckj on nr hijacking of aircraft, gcnncidc. Jnd war crimes. See Rfjtattmfnt (Tintn) OF
HUE Law of FotElCM RFJ^nONS (heretrufter RESTaTEMF^H') f 404 comment a. Torrure Kas alto been recngnized as havmg unrrerul
jurisdictioa. Foni v. Stjjrez-Mason. 672 F.Supp 1331. 1341 (N.D.Csl. t987XorriciaI Innurc is 'univerul. ohIt|ainry. and denruMe').
- *In fcneral. juriidictinn on (he hasis of univenal iniereus has hecneiercivd in ihe fnrm nf criminal law. hut inicmatinnal law
does rKM preclude (he ipptkstion nf non-cnmirul law on this basis, for exarrrple. b^ providing a remedy in ton or resiituitnn for vtciims nf
piracy.* RESTArEWENT. J 404 commem b.
f 39 U.N. G.OA.R. Supp (No. 51). 23 I.L.M. 1027 (1984).
' The Tonure Vktim Piwecbon Act nf 1991. 28 U.S.C. ( 1330. permits luiu against mdividuals Tor the crimes of trniure and
extrajudicial killing, but only if (1) the perpetrator was acting under tcnul or apparcru authoriiy. or coior of law.  the claimam has
eahausted adequate and available local remedies and (3) ctmuncnces the aaton within 10 years after the cause of action arose.
The Antiierroriim Act of 1992. 18 U.S.C. S 2333-2338, allows U.S. nationals » seek treble danuges for acts of inlemarimal
terrorism. The Act is not ivailabte against foreign sates and additionally grants the Anon»ey General the authohry to tmervene m any civil
case and suy the action if it interferes with a criminal prosecution which invotves the same subject matter. Knnwn is the "Pan Am clause.*
Use iusbce Department requested this provision in order to sull any of the family membera from obtaining evidence frrim the U.S.
Covemmcni in a civil action.
• Orte needs orJy examirte (he extreme difTiculties die United Suits aitd Uniled Kingdom continue ro face m their anempts tn bring
to thai the two Libyan ituclligence ofricen ir»diaed on charges of destroying Pan Am 103 on behalf of the Libyan goverrwnem.
Imenational EnfofceiTKnt Law Reporter, Volume 9, Issue 9. September 1993 p374
INTERNATIONAI. ENFORCEMENT I.AVV REPORTER
Sovereign Immuniiies Act of 1976 (FSIAf bui Ihe chances of success are far from guaranleed due lo ilic
likelihood of Slate Department objection*
The key provisions of the bills are listed below.
Imroduccd by Senator Arlen Specter, one of the leading proponents of aniiierrorisi legislation, in April.
1993. the bill would amend sections 1603, 1605(a) and 1610.
- Defines "act of terrorism' in line with that of the Foreign Intelligence Surveillance Act. 50 U.S.C. i 1801. and
the Antiterrorism Act of 1992. 18 U.S.C. § 2331:
- Extends provisions to include both American nationals and permanent resident aliens:
- The act could have occurred within the United Stales or outside the United Slates if money damages are
- Suit must have been brought within six years after the cause of aciion accrued;
- Restricted to those nations designated by the Secretary of Stale as a stale repeatedly providing suppon for acts
of international terrorism under scclion 40(d) of the Arms Export Control Aci^:
- Allows for aiiachmeni of propeny based upon the above guidelines.
11. R. 934
The House version was introduced in February 1993 by Congressman Romano Mazzoli and seeks to
amend sections 1605(a) and 1610.
• Provides recourse only for citizens of the United States;
- Personal injury or death must have occurred in the foreign state named as a dd'endant and as a result of
•torture", -extrajudicial killing" or genocide. U" Officials or employees of the stale must have committed the
act wiihin the scope of employment. The definitions for both terms are directly lifted from TVPA;
■ Claimant must have first exhausted adequate and available remedies in the place in which the conduct
- Action must have been commenced wiihin 10 years after the cause of aciion accnicd:
- Propeny may be attached regardless of whether it was involved in the act upon which the claim is based;
- Amendment is retroactive to any given lime.
f 28 use. Si 1330. 1602161 1. FSIA scti (onh '&x lole ind ciduiivt sandards lo be uitd in rtiolyms quesiionj ot ioverci|n
immuoi^ cjii«l by forc.gn lulti bttorc Fcdctal >nd Sale coum in die Untied Suits.- ll.R. Rep. No H87. 94Ui Conj.. 2iJ Sesi..
repnnied m 1976 US Code Coof. i Ad.News 6604. 6610.
r S825. 103d Coni.. luSeu. (1993) and H.R. 934.. 103d Conj.. In Sen (1993) For an illuuralion of the objeeliorj usually
nbed by die U S. Depanmem of Sale, see Aniiicrronjni Acl of 1990: llearinis on S.2465 Before die Subcomm. on Coum and
Adminijnihve Practice of the Senaie Comm. on die JodicUry. lOIsi Conj. 2d Sesi. 1125 (1990) (leiiiniony of Allan ). Krtczkol
T As of diis wnirng. die lisi included Cuba. Iran. Iraq. Libya. Nonh Korea, die Sudan, and Syna.
11 -Torture" and "exirajudicial kdling" draw dieir definHion from die Torture Vlciim Pmiecnon Acl. Genocide w>j recently added
al die requca of Contieunun Schuniet in response lo penUinj luii>lian wrdiin die Dilirici of Columbia penainmi lo -rar crimes and Nan
Iraenuaoiul Enfoicement Law Reponer. Volume 9, Issue 9. Sepumber 1993. p375
. '. , INTERNATIONAL ENI-ORCKMENT LAW RKPORTER , r ,
Irrespective of ihe many problems that surround the adoption of an airandmcm to FSIA and regardless
of the policy concerns that the Department of State may raise, we should recognize lerrorisis for what Ihey are.
Iwsiis humani generis. Ainerica should no longer permit nations that sponsor terrorist attacks specifically
designed 10 harm innocent civilians to protect themselves on the grounds of sovereign immunity as if they had
the unquestionable discretion to undertake such activities
Throughout the world incidents such as the destruction of Pan Am 103 or the hijacking of the Achillc
Lauro have been condemned. Countless treaties have been adopted by the international community allegedly
seeking to punish those who violate ihc jus cogens norm of international l.iw. Is there no substance underlying
such decisions? When will the United States recognize the responsibilities outlined in the language that it has
adopted and. in many circumstances, fought for?
The Ninth Circuit recently expressed the problem outright: "if violations of;i/5 cogens committed
outside the United States are to be exceptions to immunity. Congress must make Ihcm so."-'
As defined in the Vienna Convention on the Law of Treaties. 3 jus cogens norm, also known .is a
"peremptory norm' of inienialional law. "is a norm accepted and recognized by the international communiiy of
states as a whole as a norm from which no derogation is permitted and which can be modified only by a
subsequent norm of general international law having the same character."- Jus cogens is. of course, related
10 customary international law. Customary intemaiion.il law is defined in the Restatement as the "general and
consistent practice of slates followed by them from a sense of leg.il obligation. "-
Customary international law is ascertained by the courts "by consulting the works of jurists, writing
professedly on public law; or by the general usage and practice of nations; or by judicial decisions recognizing
and enforcing the law.'i^'- |n dciemiining whether a norm of customary international law has risen to the level
o( jus cogens, courts should examine the same sources but must also determine whether the international
community recognizes the norm as one "from which no derogation is permitted. "-
A brief review of some of the international treaties that recognize yi/s cogens which are part of the law
of the United States^ clearly dictates that sovereign immunity should be removed at least in these specific
instances. For example:
!? SidcmunJc Blaltc» Rcpul>lic of Arjcniina. 965 F.2J 699. 719(9111 Clr 1992)
!? Vitmu Conyeiuioii on die Ljw of Treadcs. in. 33. Miy 23. 1%9. 1155 U.N.T.S. 332. S 1 L.M. 679. Srr alsn RFjrrArTMEKT
i 102 Rcponer'j Nole 6.
IT RESTATtWEia J 102(2).
i? Uniicd Sam T. Smilh. IS U.S. (5 Wtiul.) 153. I«0'6I (tS20): FOiniga >. Pemlnti. 630 F.2il 176. 880-81 (2il Cir. 1980).
^ Sidcmundc Blile ». Republic of Argtminj. 965 F.2d699. 7l5(9lliCit. 1992). cKing Coimnintc of U.S Ciliiciu Uvinj in
Nicinpa ». Reagan. 859 F 2d 929. 9<0 (D.D C.Cir. 1988).
*~ S*e T)k Paquete Hatnna. 175 U.S. 677. 700 (1900) Ctntenutioflal taw is pan of our law. and must be ascenained ami
admtniuend by liM couns of jyitice of apfirophale jurisdiction, at often as ()uestiocu of right depending upon it ate duly prewntcd fi>t dwu
Inietiutional EtUnrcemem Ijw Repottet. Volume 9. Issue 9 Septemhet 1993. p37fi
INTERNATIONAL ENFORCIlMENT LAW REPORTER
- The Tolcyo Convention ensures ilie Slate of Registration of an aircraft jurisdiction over any offense commitied
on board regardless of where the acts occurred.—
- The Montreal Convention defines specific offenses declaring, in Anicle 1(1), it unlawful if a person
intentionally 'destroys an aircraft in service ... or places or causes to be placed on an aircraft in service, by any
means whatsoever, a device or substance which is likely to destroy that aircraft. "-'
- Article 14 of The Tonure Convention stipulates thai each state party also must ensure that tonure victims or
their decedents 'obtain... redress and ha(vcl an enforceable right to fair and adequate compensation, includmg
the means for as full rehabilitation as possible . 'S'
- Also noiewonhy is the New York Convention^' and the Hostage Convention." both of which have
relevance to several terrorist incidences that involved Americans.
These Conventions, among others, and existing U.S. law have established the framework for protecting
the rights of victims. Now all that is needed is the legislation to implement those protections rather than merely
symbolize them. For those Americans who have suffered at the hands of torturers, for the family of Leon
Klinghoffcr, and especially for the 189 families of those Amcficans who perished on Pan Am 103, this should
Pan 2 of this article will provide a suggested amendment to FSIA and more fully explore the
application of civil remedies to terrorist attacks.
A. International Criminal Investigations
On October 14, ;993, the American Bar Association's (ABA) Committee on International Criminal
Law, in cooperation with the Committee on International Criminal Ijw of the District of Columbi.i Bar. will
host a brown-bag lunch program from 12:00 to 1:30 pm at the ABA, 1800 M St.. NW. 2d Ploor, Wash.. DC
2(X)36. The panelists will be: Terry F. Lenzner, Esq., Chairman of the Investigative Group. Inc.. Wash., DC;
Michael J. Hershman. Esq., President, The Fairfax Group. Falls Church. VA; and Mr. Donald S. Richards.
President, The Richards Group, Tuxedo Park, NY. Interested persons should contact the ABA, CJS, at
(202)33 1 -2260. There is no charge for attending the program.
il- Tlw Convemion on OrTcnscl and Ccnjin Other Acts Commmcd on Board Ainrnfl (Toltyo Convention), opened tor tisnaniic
Sept 14. 1943. 20 U.S.T. 294t. T.t.A.S. No. 676J1. 704 U.N.T S. 219.
!T Tlw Convention for d»e Suppre«ion of Unlawful Acti Against the Safely of Civil Aviation (Momieal Convemiunl. opened for
sijnanire Sept. 23. 1971. 24 U.S.T. 543. T.I.A.S. No. 7370.
ff The CoDveniion Against Tonure and Odier Cnjet. Inhuman or Degrading Treatment or [*anishmenl (Tomjre ConveniinnJ. 39
U.N. CAOR Supp. iNo. 311, 23 I.L.M. 1027 1 1984) (emphasis added). The section cnnlinuei to state 'hli^ die event of the death of the
victim as a restjll of an act of lonute. his dependents shall be etuuled to compensation.'
^' The Convention on the Prevention and Puntshmenf of Crimes Againn lntemailonalI)f Ptotected Persons, including Diplomatic
Agents, opened for stgnanife Dec. U. 1973. 28 U.S.T. 1975. T.I.A.S. No. 8532.
^ Tile IntemaliOfUt Convention agauut the Tailing of Hostages. U.N. Resolution 34/Mfi. annex
Ituemalionat EnforcetiKnt tjw Reponer. Volume 9. Issue 9. Septemher 1993. p?77
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