State Immunity, Torture, and Impunity

Today, justice was denied to Zahra Kazemi and her family. After an eight year struggle, the Supreme Court of Canada released the decision many of us feared: Iran and its functionaries are immune from the civil jurisdiction of the Canadian courts for having arrested, tortured and murdered Ms. Kazemi, a Canadian journalist.

There will be time to pick apart the decision over the coming months, and years. Right now, though, I can’t do much more than shake with frustration and grief. In my 2009 comment on this case, when it was still pending before the Quebec Superior Court, I was hopeful that the law was rapidly moving towards holding states, and individuals acting under colour of state authority, accountable for breaches of jus cogens norms. We are not there yet. But one day, we will be.

Let me pay tribute to, and give thanks for, the extraordinary efforts and courage of Stephan Kazemi, son of Ms. Kazemi, and the many, many people who worked with him in this struggle. I know some of the lawyers involved in this case – indeed, several are my close friends. They are a truly remarkable group, and have done immense credit to the Canadian bar. I know that they share my view that we have not lost, so long as we continue to fight.

Human beings suffer,
They torture one another,
They get hurt and get hard.
No poem or play or song
Can fully right a wrong
Inflicted and endured.

The innocent in gaols
Beat on their bars together.
A hunger-striker’s father
Stands in the graveyard dumb.
The police widow in veils
Faints at the funeral home.

History says, Don’t hope
On this side of the grave.
But then, once in a lifetime
The longed-for tidal wave
Of justice can rise up.
And hope and history rhyme.

So hope for a great sea-change
On the far side of revenge.
Believe that a further shore
Is reachable from here.
Believe in miracles
And cures and healing wells.

Call miracle self-healing:
The utter, self-revealing
Double-take of feeling.
If there’s fire on the mountain

Or lightning and storm
And a god speaks from the sky

That means someone is hearing
The outcry and the birth-cry
Of new life at its term.

from Seamus Heaney, “The Cure at Troy: A Version of Sophocles’ Philoctetes”


  1. Alejandro,

    Isn’t there a deeply problematic potential that comes with using international norms to work around the State Immunity Act, namely that individual states can use or even identify international norms, despite being debatable, to then assert foreign jurisdiction over others states? In a case like this, no issue – “everyone agrees” that torture is wrong. But what about in others in which one state takes another to task for not complying with an international norm to which the second state may, for very legitimate reasons, not adhere? Adjudging another state’s compliance or lack thereof with international law – which is, even at the best of times, is often uncertain – as a basis for asserting jurisdiction over it seems dangerous, if not impossible. Even Abella J., with whom the facts would have resonated more than any other of the justices, wasn’t willing to go so far.