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Condemned by Law: Assassination of Political Dissidents Abroad

Since Letelier, numerous other U.S. federal courts have imputed responsibility to states for the assassination of political dissidents carried out by the officials or agents of that state.213 In Liu v.Republic of China, the court applied a combination of international and domestic laws to hold the government of Taiwan responsible for the assassination of a political dissident.214 Taiwan was held liable despite evidence suggesting that the perpetrators of the murder held a personal grudge against the victim, and notwithstanding the government’s investigation, prosecution, and conviction of high ranking officials involved in the assassination.215 Essential to the court’s holding was its reasoning that for purposes of immunity analysis, there is a distinct difference between an extrajudicial killing perpetrated inside a nation (which amounts to murder) and one committed on foreign soil.216 The latter act violates the sovereignty of another state, and is therefore exempt from traditional notions of immunity recognized under international law.217

Victims of Iran’s campaign of political associations and other forms of violence perpetrated on foreign soil have employed various civil remedies, particularly in U.S. courts. In recent years, a majority of these plaintiffs have relied on a combination of statutes including the Antiterrorism and Effective Death Penalty Act (AEDPA), the Torture Victims Protection Act (TVPA) and the ATS.218 Compensatory and punitive judgments awarded as a result of these suits have run into the millions, with more than $400 million actually paid out.219 Many of these cases implicate the regime’s sponsoring of terrorism through proxies such as Lebanese Hezbollah and Palestinian Islamic Jihad, while others are directed against the officials and agents of the Islamic Republic itself. An example is the civil case brought by the family of Cyrus Elahi against the Islamic Republic and its Ministry of Intelligence in U.S. courts in 2000.220 Before awarding the plaintiffs damages amounting to more than $310 million, the Elahi court noted that “every instrument and agreement that has attempted to define the scope of human rights has recognized a right to life coupled with a right to due process to protect that right.”221 It noted that the Iranian government had “sought to eliminate any effective opposition to the clerical regime by engaging in the widespread assassination of dissidents both within Iran and abroad.”222

5.4. Crimes Against Humanity

Recent developments in the field of international criminal law have widened the legal avenues available to those seeking to hold violators of fundamental rights guaranteed under international human rights and humanitarian law to account for their actions. The establishment of the ad hoc criminal tribunals for the former Yugoslavia and Rwanda, set up in 1993 and 1994 respectively, contributed significantly to these developments because criminal prosecutions were no longer strictly tied to or limited by the will of individual states to prosecute offenders pursuant to international treaties such as the Geneva Convention or the Convention Against Torture.223 The codification of many of the rules of criminal accountability pursuant to the Rome Statute, which established the ICC, provides further evidence of a shift away from traditional notions of state sovereignty and diplomatic immunity shielding alleged violators of human rights and towards a truly international system of individual accountability.224

[213]See, e.g., Bakhtiar v. Islamic Rep. of Iran, 571 F.Supp.2d 27 (D.D.C. 2008) (holding that Shapour Bakhtiar’s assassination by agents of the Islamic Republic constituted an “extrajudicial killing” and fell within the Foreign Sovereign Immunity Act’s state-sponsored terrorism exception, and that Bakhtiar’s widow should be awarded $12 million in compensatory damages pursuant to California’s intentional infliction of emotional distress laws). In its decision, the Bakhtiar court also noted that the Foreign Sovereign Immunities Act “adopts the definition of ‘extrajudicial killing’ used in section 3 of the Torture Victims Protection Act” (see infra note 218), and that that Act “defines extrajudicial killing as ‘a deliberated killing not authorized by a previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.’” Id. para. 24. The court then cited the Elahi court, noting that “assassination is clearly contrary to the precepts of humanity as recognized in both national and international law.” Id.
[214]Liu, 892 F.2d 1419.
[215]Id. at 1431-33.
[216]Id. at 1431-33.
[217]Id.
[218]For example, the Alien Tort Statute, 28 U.S.C. § 1350, and the Torture Victims Protection Act, 28 U.S.C. § 1350 (note), require proof of state action to state a claim. See, e.g., Khulumani v. Barclay Bank, 504 F.3d 254 (2d Cir. 2007) (holding that absent state action, plaintiffs failed to state a claim under the TVPA but could allege aiding and abetting liability under the ATS). See also supra note 200 and accompanying text for a discussion of AEDPA.
[219]See AMERICAN LAW DIVISION, CRS REPORT FOR CONGRESS: SUITS AGAINST TERRORIST STATES BY VICTIMS OF TERRORISM (2008), available at http://www.fas.org/sgp/crs/terror/RL31258.pdf (last visited Oct. 31, 2008); see also CRS REPORT FOR CONGRESS: LAWSUITS AGAINST STATE SUPPORTERS OF TERRORISM: AN OVERVIEW (2005), available at http://www.fas.org/sgp/crs/terror/RS22094.pdf (last visited Oct. 31, 2008).
[220]See Elahi, 124 F. Supp. 2d 97; see also NO SAFE HAVEN, supra note 25, at 37-38.
[221]Elahi, 124 F.Supp. 2d at 107 (quoting Xuncax v. Gramajo, 886 F.Supp. 162, 185 (D.Mass. 1995); see also NO SAFE HAVEN, supra note 25, at 38.
[222]Elahi, 124 F.Supp. 2d at 101-02 (citing with approval, the testimony of Dr. Patrick Clawson, an expert on Iran’s campaign of global assassinations). In a subsequent case brought by Dariush Elahi, the victim’s brother, who attempted to collect on the damages awarded by the D.C. district court, the 9th Circuit Court of Appeals held that Dariush Elahi could recover part of the damages by going after the proceeds of an arbitration award given the to Iranian Ministry of Defense back in the 1970s. See Ministry of Defense and Support for the Armed Forces of the Islamic Rep. of Iran v. Elahi, 495 F.3d 1024 (9th Cir. 2007); see also NO SAFE HAVEN, supra note 25, at 38. The decision was, however, ultimately overturned by the United States Supreme Court, which held that the 9th Circuit had incorrectly defined the defendants as an “agent or instrumentality” of the state of Iran “rather than an integral part of the state itself,” thereby defeating applicability of the Foreign Sovereign Immunities Act. Ministry of Defense and Support for the Armed Forces of the Islamic Rep. of Iran v. Elahi, 546 U.S. 450, 453 (2006) (per curiam); see also NO SAFE HAVEN, supra note 25, at 38.
[223]See Payam Akhavan, Beyond Impunity: Can International Criminal Law Prevent Future Atrocities?, 95 AM. J. INT’L
L. 7 (2001) (providing a detailed account of the development of a truly international criminal justice system charged
with prosecuting international crimes such as war crimes, torture, crimes against humanity and genocide).

[224]See Lindsay Zelniker, Towards a Functional International Criminal Court: An Argument in Favor of a Strong Privileges and Immunities Agreement, 24 FORDHAM INT’L L.J. 988 (2001).

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Political Killings, Assassinations, Political Freedom