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.