Wednesday, July 28, 2021

Turkish Security Forces Not Immune from Suit for Violence Against Protesters

The U.S. Court of Appeals for the District of Columbia Circuit held in Lusik Usoyan et al v. Republic of Turkey  today that a lawsuit against Turkey may proceed despite Turkey's claims of sovereign immunity. The case stems from a violent clash between Turkish security forces and peaceful protesters outside the Turkish Ambassador's residence in Washington, DC in May 2017. Injured protestors brought suit against the Republic  of Turkey. Turkey moved to dismiss the suit on the grounds of foreign sovereign immunity, the political question doctrine, and international comity. The federal district court rejected all three defenses.

On appeal, the Circuit Court held Turkey is not entitled to foreign sovereign immunity because the violent acts of the security forces fall within the tortious act exception of the Foreign Sovereign Immunities Act (FSIA). Turkey attempted to claim the discretionary act exception to the tortious act exemption. The Court held that Turkey's actions did not meet the requirements for the discretionary act exemption. It found that under customary international law, a sending state has a right to protect its diplomats and other high officials abroad. However, that right does not include the right to commit criminal assault. Noting that fifteen Turkish security officers were indicated for criminal assault, the Court stated that "the nature of the challenged conduct was not plausibly related to protecting President Erdogan, which is the only authority Turkey had to use force against United States citizens and residents." Thus, Turkey's claim to foreign sovereign immunity fails. The appellate court also upheld the district court's conclusion that neither the political question doctrine nor international comity prevent the case from beings justiciable.


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Sounds about right. A foreign entity/country cannot have its agents commit a crime in another state and hide from prosecution under the shield of diplomatic immunity.

But, the U.S. cannot have it both ways. In August 2017, Anne Sacoolas, the American wife of a U.S. diplomat, was driving on the wrong side of the road when she hit 19-year-old Harry Dunn, who was riding a motorbike, on Aug. 27 in Northamptonshire, in central England.

A State Department spokesperson, who called Sacoolas' hit and run, a "tragic" accident, said Sacoolas had "immunity from criminal jurisdiction."

According to the U.S. State Department, "[i]f the United States were to grant the U.K.'s extradition request, it would render the invocation of diplomatic immunity a practical nullity and would set an extraordinarily troubling precedent," the spokesperson said in a statement.

What is good for the gander should be good for the goose. Shouldn't it?

Posted by: Itzchak Kornfeld | Jul 29, 2021 1:30:16 PM

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