Awarding Punitive Damages Against Foreign States Is Dangerous and Counterproductive

from Lawfare

The U.S. District Court for the District of Columbia held recently that Syria is liable for the death of American war correspondent Marie Colvin and awarded Colvin’s family $302.5 million—$2.5 million in compensatory damages and $300 million in punitive damages. Colvin was killed in Syria when President Bashar Assad’s forces bombed the Baba Amr Media Center in Homs while she was in the facility. Judge Amy Berman Jackson found that the bombardment amounted to Syria’s engaging in extrajudicial killing and, therefore, the Syrian regime could and should be liable under the terrorism exception to the Foreign Sovereign Immunities Act, or FSIA, for Colvin’s wrongful death. But by holding Syria accountable in this way, Jackson has followed a dangerous precedent, which could result in the denial of compensation to victims of war crimes and other tortious acts and poses a threat to the peaceful international legal order.

Understanding the risks in Jackson’s award requires a better understanding of the exceptional circumstances under which states can be held liable. As a general rule, states cannot be subjected to each other’s jurisdiction without their consent. This familiar principle in international law is known as the state immunity doctrine, and it is an expression of states’ equal status and independence from one another as well as the need to maintain peaceful international relations. From 1812 through the mid-20th century, the state immunity doctrine was interpreted in accordance with the Supreme Court case Schooner Exchange v. McFaddon, in which Chief Justice John Marshall held that the doctrine grants foreign states absolute immunity from U.S. jurisdiction absent their implied or explicit consent. However, the absolute immunity approach was abandoned in 1952, when acting legal adviser to the State Department, Jack Tate, sent a letter (which became known as the “Tate Letter”) to the acting attorney general, in which he announced that the department would not be asserting immunity for friendly nations in matters arising from private or commercial activities. Thus, the U.S. adopted a restrictive interpretation of the state immunity doctrine.

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3 Responses to Awarding Punitive Damages Against Foreign States Is Dangerous and Counterproductive

  1. Jack F Comfort March 7, 2019 at 9:08 pm #

    Holding other nation’s liable for wrongful death’s could be very dangerous for the U.S. This creates a large political issue for us considering the world we live in today, the more we try to intervene in other countries the more we are hated throughout the globe. For example in the middle east, there is a large resentment for the U.S and how we tried to change how we live. By holding a country (who’s already engaged in a civil war and violated many war crimes) responsible for a wrongful death might garner the wrong reaction. With an unstable state like Syria, accusing them might not get us what we want. On the other hand it’s very unfair to Marie Colvin and her family and they’re going to want reparation’s for her wrongful death. Hopefully the two nations can come together to find some way to payback the Colvin family

  2. Joseph Oates March 12, 2019 at 6:09 pm #

    Halm Abraham brings up a very interesting and confusing topic in his article, Awarding Punitive Damages Against Foreign States Is Dangerous and Counterproductive. This article brings up an interesting topic that can be very confusing and interesting to everyone involved. For a court in the United States to sue another country for punitive damages and remedies. The idea of a United States court to tell another country that they have to pay any form of money for an event that might not even have occurred in their nation. To me this concept is just like playing pickup basketball with your friends on the weekend. Having to call fouls on the game yourself as the game is going on. While the game is going on, you might call fouls that are real. Then as the game goes on and the fouls start to be too much, you might not play or will give some back talk to a player that is over doing it. This idea is the same towards the concept of suing another country for damages. At first if the amount is small, the country might listen to the demands of the courts and pay them. However, as they get more extreme, they will start to ignore them. This happened in 2017 when the courts tried to sue Iran for one tenth of their estimated gross domestic product for that year as Halm explains. The idea of a country paying one tenth of that years GDP is not feasible for any country to listen too. If they did listen to the US courts, then their economy would have collapsed. This happened in 1918 when the first world war when Germany surrendered to the Allies. They forced them to pay for all the damages that they forced on the world. This collapsed Germany’s already bad economy thanks to the world. With this, the whole world’s economy suffered thanks to this choice. If the United States were to voice Iran to pay for these, they could have the same situation happen against.
    The idea of being able to claim that damages are part of a terrorist attack is something that could be considered subjective. What would the difference between a terrorist organization and a country if the organization is in control of the nation? Before the government forces of both Iran and Iraq took back most of their nations. ISIS had control of much of both nations in the north. Their size with both parts of the two countries equaled to about what Iran and Iraq had under their control. With them governing over those areas could they be considered their own nation. This idea could be brought up with North Korea, with the nation being at war with the US allied nation of South Korea, could you consider them a terrorist organization. They threaten to hurt cities and civilians of different nations. This idea could be argued that those they have killed and are being held prisoner in their camps could be sued for damages. Section 1606 of the FISA said that you could go after a nation if a terrorist attack occurred. The idea of terrorism could be argued depending on who is making the argument. With the United Nations now a major part of world, courts might be able to bring this up to them and ask them to deal with the matters of law suits. Appointing a judge to handle them equally. However this will always be a tricky subject no matter who handles this.

  3. Jake Moore March 25, 2019 at 1:54 pm #

    Awarding Punitive Damages against Foreign States is a very interesting and controversial topic. In the article “Awarding Punitive Damages Against Foreign States Is Dangerous and Counterproductive” by Haim Abraham, he brings up many interesting and thought full ideas. When trying to figure out how much damage was caused and putting a price to that, is a very challenging and dangerous duty. Of course, the Foreign State will be angry and will have back lash on your Country, but in some cases the price has to be paid. But with the more extreme demands, the more likely they will not happen. This happened after the first World War when Germany surrendered to the Allies. The Allies wanted Germany to pay for all War damages. But this was decided at one of the most important peace treaties, the Paris Peace Conference also known as the Treaty of Versailles. Each of the defeated powers which included Germany, Austria-Hungary, the Ottoman Empire and Bulgaria were required to make payments in either cash or compensation. At the time the German economy was already hurt from the productions for the war, with them having to pay millions upon millions of dollars absolutely crushed their economy. The inflation rate was rising and doubling each and every year after the war. Germany then thought they could just print more and more money to be able to repay some of the reparations, which only made the problem a lot worse. This resulted in a loaf of bread in Germany to go from the cost of 13 cents to over $100 billion in a matter of a few years at which point the German mark completely collapsed. People were burning money to stay warm because it was cheaper than wood and some even used it as wall paper in their homes that’s how useless their money became. With all this being said, I believe that sometimes awarding punitive damages can do more harm than good. It is a very serious matter, and every situation that involves awarding punitive damages needs to be analyzed and thought out a great deal.

    https://www.businessinsider.com/hyperinflation-bread-costs-3b-2012-10

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