Events - Future Lecture.
Repercussions of JASTA for Middle East States
Thursday, December 08, 2016
Potential implications of the Justice Against Sponsors of Terrorism Act (JASTA) on the relations between Middle East states, and the United States' relations with the Middle East, were the focus of a lecture delivered by Dr. Samuel Greene, Visiting Assistant Professor at the National Defense College in the UAE, at a workshop hosted by Future for Advanced Research and Studies (FARAS) on November 9, 2016. The lecturer focused on the domestic motives behind the law and the political and legal repercussions of passing the new bill in September by the US Congress to allow legal action against states depicted as playing a role in the 9/11 attacks.
The passing of JASTA has raised controversy about its potential legality and political consequences as it allows families of victims of terrorist acts to sue the countries of individuals involved in such acts. The lawsuits can be filed against Middle Eastern states even if they are not linked to the terrorist acts. The general line of the controversy about the issuing of this law features the following repercussions:
- Receding Influence of the US President: The US Congress succeeded in overriding the veto imposed by President Barack Obama to block the passing of the law, after the House of Representatives voted 338-74, and the Senate voted 97-1 in favor of the overriding- which was more than two-thirds majority necessary to revoke Obama’s veto of the bill before the end of his presidency. The override revealed a broader consensus among the majority of Congress members from both the Republican and the Democratic Parties over passing the drafted bill into law.
- Shaking Fundamental Principles of International Law: JASTA represents a critical development in rules governing international relations because the new law violates Vienna Convention on Diplomatic Relations of 1961 and the closely related treaty, the Vienna Convention on Consular Relations of 1963, which state that states are not allowed resort to their domestic judicial institutions to file legal suits against other countries. Moreover, the law violates the firm principle of state sovereignty that is guaranteed by the Treaty of Westphalia signed in 1648.
- Multiple Actors in Foreign Policy: Nowadays, foreign policy is no longer the exclusive arena of the executive authority of states, because a large number of actors can now influence this policy due to the expansion of foreign jurisdiction of judicial institutions, individuals' possession of tools that have multiple impacts on the trajectory of international interactions, such as social media, cross-border networks and even resorting to domestic law to sue foreign states.
- Increasing Reliance on Domestic Law: The passing of JASTA represents the most significant indicator of a regressing trend of reliance on international law and institutions to settle issues between states. The wave of international optimism that swept the world after the Cold War has receded due to the rise of anti-globalization sentiments and their repercussions, and states' endeavors to impose restrictions to impede the free flow of capital and individuals to reduce the compound effects emanating from the external surroundings of these countries. This is linked to the diminishing international agreement on the role of the International Criminal Court and the intention of some states to withdraw from the Rome Statute of the International Criminal Court.
Motives behind Congressional Support
During the workshop, Dr. Samuel Greene opposed the beliefs dominating the public debate over the reasons for passing JASTA and presented a different view that the law is only a reflection of domestic interactions taking place in the United States meaning it should not be regarded as something directed at the rest of the world, despite its widening consequences and the controversy it has created across the world. The following stand out as key motives behind passing:
- Midterm Congressional Elections: The passing of JASTA is linked with the complications of the election year, and the members of Congress are working to secure the confidence of voters ahead of the midterm elections. That is, political rivals can exploit the rejection of a bill backed by the families of victims of the 9/11 attacks in the midst of elections campaigns, which prompted Congressmen from the Republican Party and the Democratic Party to back the bill despite the opposition from Obama’s Administration.
- Nature of the Electoral System: Under the single-member district electoral system, every member of Congress should manifest their achievements to the legislature every two years in order to be able to be re-elected as per the immediate relationship between voters and the members, as compared to the proportional representation system under which parties act as mediators between voters and members of Congress where voters select from a list of candidates of a certain party. Moreover, the single-member district system enhances the motives of members to show achievements and project their personal and not partisan image, and even prompts some members to violate their partisan obligations to increase their popularity among voters of their constituency.
- Centrality of Symbolic Politics: JASTA can be classified as part of symbolic politics which is based on taking certain positions with the aim of making use of the symbolic significance of these positions. Hence, the members of Congress voted for passing JASTA designed to showcase their support for the families of victims of the 9/11 attacks and seeking justice within the context of countering terrorism.
- Increased Media Pressure: JASTA would not have gained all this political momentum or even have been passed through Congress with support from a majority of members if those influencers for it had not leaked the text to the media creating public controversy over it. This is exactly what increased pressure on members of Congress to vote for JASTA ignoring opposition from Obama’s Administration.
Multiple Complex Consequences
The passing of JASTA has exacerbated the already tense relations between the US and Middle Eastern states. The passing of the law came after a series of events that further aggravated the divergence of positions including the conclusion of the nuclear deal between Iran and the P5+1 group of world powers without taking into account threats posed by Iran to stability and peace in the Middle East, and the fact that the Obama’s Administration had broken its promises to counter the violations of the Assad’s regime in Syria and maintain the US policy of distancing itself from involvement in Middle East crises. Within this context, the repercussions of JASTA caused a debate among participants in the workshop.
Some participants focused on the United States being faced with potential reciprocal treatment by foreign governments and the possibility of filing legal suits against the United States over violations against prisoners at Guantanamo Bay and Iraq's Abu Gharib prison, as well as over victims of the US wars in Iraq and Afghanistan and its bombing of civilian areas in Afghanistan and Pakistan. Moreover, the new law will further strain relations between the United States and its traditional Middle East allies.
Others focused on potential preemptive policies that some Middle East states may pursue to counter JASTA, such as Saudi Arabia who could withdraw its investments and assets from the United States, a procedure that would damage foreign investor confidence in US economy. However, most of the participants ruled out the possible implementation of this scenario due to the potential financial losses and economic hardships that can result from such measures. Another main line of discussion at the workshop highlighted a different perspective is downplaying the significance of JASTA for the development of United States' relations with Middle East states.
Those for this view believe that the new law is no more than a marginal event that should not impact ties between both sides. They argued that the articles of the law make it unenforceable because it requires individuals filing legal suits to prove direct involvement of concerned states in terrorist attacks, which is practically not possible. Moreover, the law does not include an executive mechanism through which assets of involved states can be seized, or the means for possible compensation ordered by relevant courts for the families of victims can be collected.
According to the law, those affected by terrorist acts can sue Syria over crimes perpetrated by ISIS against civilians. They can also sue Afghanistan for terrorist attacks carried out by al-Qaeda, or Pakistan for harboring al-Qaeda leaders. Such legal suits can result in judgments of conviction against these states. However, the implementation of punishment and collection of compensation remain unenforceable because the law itself does not include an executive mechanism to freeze the assets of these states in the United States or collect payment.
Regarding the potential impact of JASTA on US relations with Saudi Arabia, the participants generally stressed that these relations are vital, irreplaceable and indispensable based on the fact that they are founded upon mutual agreement between the two sides over the definition of regional threats, especially those posed by Iran to regional security and the common interests of the two states, i.e. the United States and Saudi Arabia, in restoring stability in the Middle East and countering terrorist threats.
Moreover, conflict of interest between Russia and Saudi Arabia would hinder rapprochement between the two states due to Russia's propping up of Iran and the Assad regime. The same applies to China which considers Iran as a vital state in its New Silk Road and seeks to integrate it into its regional surroundings. China further aims to focus on enhancing its economic relations with Arab countries while it does not prioritize developing its military relations with Middle East countries.
The workshop was concluded by emphasizing that US ties with Middle East countries will be under comprehensive review in the aftermath of the US elections and the congressional midterm elections to end a phase of stalemate during Obama's presidency, despite the fact that the trajectory of these relations will remain unpredictable until the new US administration is formed and the President-elect begins to draw the broad outlines of US foreign policy concerning the Middle East.