on the DPRK to permit those who have been taken to return home and to account for captives who have died in detention. These are outlined in the next Chapter. Americans Can Pursue Legal Remedies Against State Sponsors of Terrorism In the United States, victims of terrorism, kidnapping and torture and their families who are U.S. citizens or permanent residents may bring civil actions against sovereign states that are listed as state sponsors of terror by the U.S. State Department. 6XFK D ULJKW DW Ă€UVW JODQFH VHHPV WR EH DW RGGV ZLWK WKH )RUHLJQ 6RYHUHLJQ Immunities Act of 1976 (FSIA), which provides for sovereign immunity under which foreign states are generally immune from the jurisdiction of courts of the 8QLWHG 6WDWHV VXEMHFW WR VSHFLĂ€F H[FHSWLRQV 66 As originally enacted, the exceptions to immunity under the FSIA included cases in which a foreign state had waived its immunity and those involving commercial activities of a foreign state with a nexus to the United States.67 7KH )6,$ ZDV WKH $PHULFDQ FRGLĂ€FDWLRQ RI WKH 8 1 Convention on sovereign immunity and is based upon the “restrictive theoryâ€? of state immunity which holds that foreign states are immune from jurisdiction relating to their “public actsâ€? (DFWD MXUH LPSHULL) but were not immune from jurisdiction for their “private actsâ€? (DFWD MXUH JHVWLRQLV).68 However, in 1996, following the infamous Achille Lauro cruise ship hijacking in which an American citizen was brutally murdered by Palestinian gunmen on the high seas, Congress enacted an additional “terrorism exceptionâ€? to the FSIA, whereby it lifted the sovereign immunity of designated foreign state sponsors of terrorism in civil actions brought by American citizen victims and their families for terrorist attacks carried out by such foreign states or for which the foreign state had provided material support and resources.69 The act, known as the Antiterrorism and Effective Death Penalty Act of 1996, allowed for lawsuits WR EH EURXJKW IRU WHUURULVP DJDLQVW RIĂ€FLDOV HPSOR\HHV DQG DJHQWV RI VXFK 6WDWH Department designated foreign states.70 The operatives and agents must, however, EH DFWLQJ ZLWKLQ WKHLU RIĂ€FLDO FDSDFLW\ DQG SXUVXDQW WR D UHJLPH¡V IRUPDO SROLF\ LQ order for an American citizen to prove his claims against them. Initially, the law was viewed by the courts as merely a jurisdictional device allowing American citizens to bring lawsuits in federal courts for attacks and acts of torture which occurred outside the U.S. and plaintiffs had to allege common-law causes of action such 66
See id. at § 1605. See, United Nations Convention on Jurisdictional Immunities of States and Their Property, Dec. 2, 2004, G.A. Res. 59/38, 59th Sess., Supp. No. 49, U.N. Doc. A/59/49, (2004). 68 See 28 U.S.C. § 1605A 69 28 U.S.C. § 2244(d) (2008). 70 28 U.S.C. § 1605A(a)(1). 67
113