In a surprise development
breaking with past practices,
the Islamic Republic has hired a lawyer and gone to court to fight a terrorism suit against it.
This case, however, is not one of the many against Iran in the United States, but a new one filed in Canada by the Stephan Hachemi, the son of Zahra Kazemi, the free lance Iranian-Canadian photographer beaten to death six years ago in Iran.
Rather than ignore Hachemi’s $17-million dollar civil lawsuit in Quebec, Iran hired a lawyer to appear in court and fight the civil action.
Stephan Hachemi, 32, sued Iran, Supreme Leader Ali Khamenehi and two prosecutors—Saeed Mortazavi and Mohammad Bakhshi—for the death of his mother.
Montreal lawyer James Woods, representing Iran, told the packed Quebec Superior Court room that under Canada’s State Immunity Act, neither Iran nor its officials could be sued.
The United States changed its immunity law in 1995 to allow suits against countries determined to be state sponsors of terrorism. Canada is considering such a change.
Woods told Justice Robert Mongeon that Iran “objects to a Canadian court deciding whether torture was used or not.”
“Would Canadians accept that Polish citizens be allowed to take legal action against the Canadian government for the death of Robert Dziekanski?” he asked in reference to the case where a Polish immigrant died in October 2007 after he was tasered by police officers at Vancouver International Airport.
A lawyer for the federal attorney general, Bernard Letarte, agreed with Woods and Iran on the legal principle: each and every country enjoys immunity from civil prosecution for events that occur outside Canada, he said.
“The Attorney-General of Canada is only intervening in this case for the end of defending the constitutionality of the State Immunity Act,” he said. “Canada is against all forms of torture and supports the efforts of the international community to ban and eliminate the tactic.”
The Attorney-General of Canada acted under the conception that Canadian law eliminates an individual’s ability to sue a state. A Liberal member of Canada’s Parliament, Irwin Cotler, has proposed an amendment to the State Immunity Act that would allow lawsuits in cases of torture, murder, crimes against humanity and war crimes—a broader exemption than that in the United States.
“I find it absurd that the State Immunity Act has an exception for commercial activity but not for torture or international crime,” he said in an interview with The Globe and Mail. “It’s morally and legally absurd.”
Canadian courts have turned away lawsuits similar to Hachemi’s. Maher Arar unsuccessfully tried to sue Syria for the torture he allegedly suffered there. Houshang Bouzari faced the same fate when he tried to sue Iran for torture he allegedly suffered before he immigrated to Canada in the 1990s. The Ontario Court of Appeal ruled that the state immunity law guarded Iran, and the Supreme Court of Canada refused to hear his appeal.
Hachemi’s lawyer, Kurt Johnson, said, “The Iranian justice system is incapable of hearing the case. If we can’t do it here, we’re in a legal black hole and that can’t be an acceptable result in a country where we have a protected right to a fair hearing.”
Johnson argued that Kazemi’s case has never been brought to trial in Iran. This case would never receive a fair trial in Iran, he said, so Canada must intervene. He agreed that Canada’s State Immunity Act of 1985 bars Hachemi’s suit; however, he said Canada’s Charter of Rights overrules the law by guaranteeing Canadians have a right to a fair hearing. He says the Charter should guarantee Kazemi, posthumously, her right to a fair hearing and her right not to be arbitrarily imprisoned.
Dr. Kaveh Moussauvi, an expert on Iranian law and a fellow at the University of Oxford Centre for Socio-Legal Studies, flew in for the trial to act as an expert witness for the plaintiffs. He said in an interview that “there is no such thing as a recognizable justice system” in Iran.
He added that Iran usually ignores civil lawsuits in other countries. In the United States, Iran has never answered any terrorism suit against it and has now seen judgments totaling $18 billion racked up against it. In the Hachemi case, however, Iran has hired an experienced lawyer.
“They never do that. I take it the reality of the law is starting to catch up with the leadership of the Islamic Republic of Iran,” Moussauvi said.
The case was heard in Montreal last month. A decision is expected in the new year.
