Despite the illegality of extraterritorial assassinations under international law, some states continue to use assassinations on their opponents as a tool of foreign policy. Since the unlawful nature of state-ordered killings is unlikely to be addressed in the courts of the state that ordered the murders, survivors and victims must find alternative legal venues for justice.
In the case of killings directed by the leadership of Saudi Arabia, U.S. courts have become a new forum of choice for accountability. Since August, several civil suits against Crown Prince Mohammed bin Salman, known as MBS, have been filed in U.S. federal courts. Two of the suits seek to hold MBS, the de facto head of state of Saudi Arabia, and other Saudi officials accountable for assassination and attempted assassination.
The suit filed by Saad Aljabri—a former top Saudi intelligence official now living in exile in Toronto, who claims that MBS targeted him for assassination because of the weight of his secrets—alleges activities that occurred in Saudi Arabia, the United States and Canada. The choice to file in U.S. court is likely guided in part by political strategy—perhaps to put pressure on the cozy U.S.-Saudi relationship. But the choice may also reflect the limitations of the Canadian courts to address serious international crimes with legal remedies, and offer a path forward to strengthen that framework.
The U.S. complaint
The complaint filed by Aljabri in the U.S. District Court for the District of Columbia alleges claims under the Alien Tort Statute (ATS) and the Torture Victim Protection Act (TVPA). The ATS is a U.S. law that gives federal courts jurisdiction to hear lawsuits filed by non-U.S. citizens for violations of international law, regardless of where in the world the underlying conduct occurred. The TVPA is a statute that allows both U.S. citizens and non-citizens to bring civil-law claims against individuals, acting in an official capacity for any foreign nation, who committed torture and extrajudicial killing outside the United States. Courts have read the TVPA to include attempted extrajudicial killing, as alleged by Aljabri. More about the legal claims in Aljabri's suit can be read here.
Canada has no analog to either of those two American laws. While the Supreme Court of Canada held in February 2020 that Canadian corporations can be sued for human rights abuses committed abroad, responsibility does not extend to individuals or state actors. However, plaintiffs can bring suit in Canadian courts for acts of terrorism committed extraterritorially (more discussion on that below).
Canada's State Immunity Act
Since the plot alleged by Aljabri's U.S. lawsuit occurred in substantial part in Canadian territory—with the defendants allegedly securing Canadian tourist visas for the purpose of killing Aljabri, and some hit squad members traveling to Canada in an attempt to kill him, only to be stopped at the border by customs officials—a Canadian court may not need to rely on the interpretation of laws that cover extraterritorial acts. Yet regardless of where the underlying conduct occurred, immunity laws may still apply to block any suit against MBS in Canada, unless an exception applies.
All civil claims against foreign states in Canadian courts must proceed under the State Immunity Act (SIA). Section 3(1) of the law provides that "a foreign state is immune from the jurisdiction of any court in Canada." Under the SIA, a "foreign state" includes any sovereign or other head of the foreign state, or of any of its political subdivisions, while acting in a public capacity; any government of the foreign state or of any of its political subdivisions, including departments or agencies; and any political subdivision of the foreign state.
The Supreme Court of Canada has held that the meaning of "government" under the SIA includes public officials, who can benefit from state immunity only when acting in their official capacity. MBS and the other defendants named in the Aljabri suit in the Saudi government would therefore be barred from being sued in Canadian courts on Aljabri's claims unless a court determined they were not acting in their official capacity, or that an exception to the State Immunity Act applies.
On the latter, the Supreme Court of Canada has noted that the SIA contains an "exhaustive codification" of exceptions to state immunity and that the court would not place reliance on common law or customary international law norms to liberally interpret those exceptions.
An exception that could apply to Aljabri's case is in Section 6 of the SIA, which curtails the immunity of states in cases of death, personal or bodily injury or loss or damage to property that occurs in Canada. The SIA is silent on whether attempted murder or bodily injury would satisfy this exception, as occurred here with the assassination plot against Aljabri. But there could be an argument advanced about the psychological injury that Aljabri suffered as a result of the assassination attempt, from the fear of knowing the would-be assassins got so close to him, on the other side of the world, in his new adopted home of Canada.
In a case brought by the estate of Zahra Kazemi, an Iranian-Canadian photographer who died as a result of custodial torture in Iran in 2003, to overcome state immunity and sue the Islamic Republic of Iran for torture and murder, the Supreme Court of Canada examined whether psychological distress could trigger the "personal or bodily injury" exception to state immunity. Kazemi's son claimed that he suffered psychological damage as a result of his mother's torture and murder in Iran. The Court held that this did not trigger the immunity exception, on the grounds that the exception "does not apply where the impugned events, or the tort causing the personal injury or death, did not take place in Canada"—and the action in question had occurred in Iran, not Canada. The Court also held that the "personal or bodily injury" exception did not apply where the injury allegedly suffered by the plaintiff did not stem from a "physical breach of personal integrity" and that "[o]nly when psychological distress manifests itself after a physical injury will the exception to state immunity be triggered."
In Aljabri's case, the facts are different. First, the "impugned events" causing his personal injury—the attempted border crossing to assassinate him—did occur in Canada. Second, Aljabri could argue that the physical border crossing was a physical breach of his personal integrity, and the brutality of the motive of that action, which triggered his psychological distress, is enough to meet the four corners of the definition of the Section 6 exception. The contours of the Section 6 exception have not been extensively litigated in Canadian courts, but the existing guidance from the Supreme Court in the Kazemi case does not preclude this interpretation.
Justice for Victims of Terrorism Act
An alternative route to liability could be to litigate the assassination plot against Aljabri as an act of terrorism by a foreign state. Canada has laws to prosecute, punish and remedy acts of terrorism in Canadian courts, even if committed extraterritorially. However, it is unlikely that this claim could advance, again due to state immunity laws.
Under Canada's federal laws, the definition of terrorism includes, among other things, an act or omission in or outside Canada that is committed to compel a person to refrain from doing any act, and that intentionally endangers a person's life. The definition also includes an attempt to commit any such act or omission—such as occurred in the alleged attempt to kill Aljabri.
The U.S. and Canadian legal systems are unique in the world in that there is an exception to traditional state immunity, allowing suits for acts of terrorism. In Canada, the exception is part of legislation called the Justice for Victims of Terrorism Act (JVTA). The JVTA provides that Canadian citizens and permanent residents of Canada who are victims of terrorism, as well as others if the action has a real and substantial connection to Canada, can seek redress through a civil action for terrorist acts committed anywhere in the world on or after Jan. 1, 1985. The JVTA allows victims of terrorism to sue the perpetrators of terrorism and those who support the perpetrators in a Canadian court, including foreign states listed by the government of Canada as supporters of terrorism.
Currently, the only states listed by the Canadian government as supporters of terrorism are Iran and Syria. Saudi Arabia is not listed, and so MBS and other members of the government are immune from suit unless the underlying conduct alleged resulted in "personal or bodily injury" as described above, or unless another exception to state immunity applies.
Amending the SIA
As with Canada, the United States has a terrorism exception and listing scheme—which currently includes three countries as state sponsors of terrorism: Iran, Syria and North Korea, and does not include Saudi Arabia. However, in 2016 Congress enacted the Justice Against Sponsors of Terrorism Act (JASTA), which enabled families of victims of the September 11 attacks to sue the Kingdom of Saudi Arabia for damages (15 of the 19 perpetrators of those attacks were Saudi citizens). JASTA created a civil cause of action against foreign states for injury or death occurring in the United States that resulted from an act of international terrorism that occurred in the United States, and a wrongful act undertaken by a foreign state or any of that state's officials, employees or agents acting in their official capacity. The law also explicitly allowed for aiding-and-abetting liability, and made that provision retroactive.
If Canada were to adopt a JASTA-like amendment to the SIA and JVTA that allowed suits in tort against any foreign state or official committing acts of international terrorism in Canada, that would open a pathway for Aljabri to bring a claim in Canadian court. Still, this would turn on a determination of whether the conduct alleged to have occurred in Canadian territory meets the requirements—that is, whether the definition of acts includes an attempt to commit such an act.
Another pathway to bring a claim against MBS in Canada is to amend the SIA to provide a general exception to the rule of immunity for serious international crimes. The prospect for this exception is already the subject of a long-standing legal debate in Canada, particularly for torture. The definition could include extrajudicial killings—which is an arbitrary deprivation of life, a non-derogable norm (meaning that it cannot be limited) in international law and codified in every major human rights treaty. If such an exception was codified, and attempted extrajudicial killings were included as part of the definition, then Aljabri could seek civil redress in Canadian courts on that legal basis as well.
For decades, the U.S. court system has functioned as the world's premier forum for human rights litigation for foreign plaintiffs and defendants, in large part due to the power of U.S. federal laws with extraterritorial application (for example, the Alien Tort Statute and the Torture Victim Protection Act) and the U.S. court system's plaintiff-friendly features, including class action lawsuits, discovery, jury trials, contingency fees and high damage awards.
While the Canadian court system shares in some of these features, a Canadian court is unlikely to award millions of dollars in punitive damages, in contrast to U.S. court awards. That may deter some plaintiffs in cases involving terrorism or human rights violations who wish to financially penalize a defendant as a pressure point for the perpetrator to cease their activities. But the prospect of pending litigation can also have other effects—such as restricting a defendant's travel to a state to avoid legal process, limiting the defendant's ability to conduct business in that state and embarrassment on the world stage.
As human rights lawyers and advocates around the world seek to hold MBS and his aides and officials accountable for the murder of Jamal Khashoggi, the torture and imprisonment of women's rights activists and other policies of targeted assassinations and repression, exploring the ability of Canada's courts to adjudicate serious international crimes could be a welcome tool in this effort to close the impunity gap.