Hashemi was not pleased and is considering appealing to a higher court.
At issue is the legal doctrine of sovereign immunity, under which governments are immune from suits in foreign courts. The Islamic Republic asserts that the doctrine is absolute and makes no exceptions. But exceptions have in fact, been made for centuries. For example, when the first US Congress in 1791 approved the first US law on sovereign immunity, it added several exceptions. Periodically, it has added others, including, in 1995, a right of victims of terrorism to sue states that resort to terrorism, an exception carved out specifically to target the Islamic Republic of Iran.
The 32-year-old son of slain photojournalist Kazemi had been seeking the right to sue Iran, Supreme Leader Ali Khamenehi, and two other officials for authorizing and committing the beating and rape that led to Kazemi’s death in July 2003.
Superior Court Justice Robert Mongeon ruled in Montreal that under the Canadian sovereign immunity law Hashemi could sue but Kazemi’s estate would not be allowed to proceed with its own $17-million suit against the Islamic Republic.
Mungeon wrote, “Mr. Hashemi endured this traumatic prejudice while he was residing in Canada, and this is sufficient to trigger the exception [and allow his suit to go forward]. The recourse of the Estate of Zahra Kazemi … cannot be salvaged by application of [the same exception]. All the physical assaults suffered by Zahra Kazemi did not occur in Canada but in Iran.”
“That was really disappointing,” said Hashemi. “What was really motivating for me was that this case could serve as a precedent … so other victims of torture might have legal recourse…. On the other hand, it was good to hear that the judge had left open the option for my [personal] case.”
Iran had argued that under Canada’s State Immunity Act, neither its government nor its officials could be the targets of civil litigation in Canada under any circumstances.
The son’s lawyers argued that the case should be allowed to proceed in Canada because it would be impossible to have fair legal proceedings in the Islamic Republic.
Kazemi, a Canadian citizen, was arrested for taking photographs outside Evin prison during a student protest. She died in prison without a single charge being laid against her, and was buried in Iran without an autopsy, despite her son’s call for the body to be flown to Canada for burial.
In 2005, an Iranian physician who fled the country said he had examined Kazemi when she was brought unconscious to the hospital where he worked and found evidence that she had been brutally beaten and sexually assaulted. Among other things, he reported that some of her fingernails and toenails had been pulled out.
The two sides have been given 30 days to appeal the judge’s ruling, and Hashemi’s lawyer said, “It’s safe to say that both parties are looking at the possibility of appeal.”
That could mean several more years in court for Hashemi, but he said it’s all part of the journey he agreed to undertake following his mother’s death.
“It’s certainly tiring, but at the same time … my mother gave me everything,” he said. “She was everything I had. It’s an honor to assume this responsibility. And I have a responsibility to others—Canadians and Iranians. This is a symbolic case, and could still have a great impact.”
A year ago, Hashemi said of the court case, “From the beginning it was clear to me that my mother was more a symbol. She was a symbol of the oppression that is going on in Iran. She was a symbol of the lack of justice, and a great symbol for the attitude of the government toward its citizens—not only the Canadian government, any government.”
Hashemi said he originally wanted the Canadian government to take the government of Iran to the International Court of Justice in The Hague. “For three years, I tried very hard, but the Government of Canada wasn’t ready to take any kind of action of this nature,” he said.
Noting that as a civilian the maximum period of time he had to launch legal proceedings was three years, Hashemi launched the civil lawsuit in 2006.
Under Canada’s State Immunity Act (SIA), foreign officials and states can be sued for breach of contract and other commercial issues in a civil court. However, they cannot be sued for torture, genocide or war crimes.
Hashemi’s lawyers argued that Iran’s interpretation of the SIA violates the Charter of Rights and Freedoms, Canada’s Bill of Rights. Moreover, it offends the principles of justice, they said.
Jayne Stoyles, executive director of Canadian Centre for International Justice (CCIJ), said, “For many people, for the son of Zahra Kazemi, for example, it’s not about money or the compensation. It’s about the recognition of what happened, getting at the truth, having an acknowledgment, and having a court of law saying that what happened was wrong and was contrary to international law.”
A member of the Canadian Parliament, Irwin Cotler, has introduced a bill to allow Canadian victims to launch civil lawsuits against their foreign torturers in Canadian courts. It would create an exception in the SIA to remove immunity for torture, genocide, war crimes, and crimes against humanity committed by foreign states. It would provide an exception to sovereign immunity similar to the exception in US law since 1995.
The SIA is meant to protect state officials when they carry out official duties, but “violations of human rights, torture, crimes against humanity, these are not really proper acts of state,” said David Matas, a Winnipeg-based international human rights lawyer.
“When officials engage in these acts, they are acting outside the scope of their duties that are set by international law, and the State Immunity Act which presently exists has been interpreted so narrowly that it has not been possible to sue either the state or individuals for these sorts of violations.”