A. Factual Background
1 On 21 September 1976, Orlando Letelier del Solar, former Chilean Foreign Minister and Ambassador to the US, and his associate, the US citizen Ronni Karpen Moffitt, were killed in a car bomb explosion in Washington, DC. Letelier was an effective opponent of the junta on the international scene. The bomb was planted and detonated by Cuban-Americans hired by the Chilean secret police agency Dirección de Inteligencia Nacional (‘DINA’).
2 Shortly after the assassination, eight Cuban-Americans and Michael Townley, an American collaborating with DINA, were prosecuted, and, after they had entered into a plea bargaining arrangement, three of them were convicted for conspiracy to murder (see United States v Sepulveda (1981); United States v Sampol (1980) 682). Two Cuban nationals each received 12-year sentences; Townley received a 10-year sentence but was released after five-and-a-half years and subsequently entered the US Federal Witness Protection Program. As part of the plea-bargaining arrangement, Townley implicated General Contreras and Brigadier Espinoza as the agents of DINA directly responsible for orchestrating the murders of Letelier and Moffitt. Attempts by the US Department of Justice to have Contreras and Espinoza extradited to face trial in the US failed because the Chilean courts did not recognize plea bargaining as a legitimate legal tool (Singer (1986) 61–62; Letelier (1995) para. 40; Extradition).
B. Proceedings and Decisions
1. The US Courts’ Decisions
3 On 8 August 1978, one week after the end of the criminal proceedings against those individuals who had carried out the assassination, the relatives of Letelier and Moffitt instituted a civil tort action in the US District Court for the District of Columbia against the Republic of Chile. The plaintiffs set forth five tortious causes of action that they contended gave rise to civil liability. The claim was based on section 1605(a)(5) United States Foreign Sovereign Immunities Act of 1976 (‘FSIA’), according to which ‘a foreign state shall not be immune from the jurisdiction of courts of the United States … in any case … in which money damages are sought against a foreign state for personal injury or death … occurring in the United States and caused by the tortious act or omission of that foreign state’. In contrast to the rules of customary international law on State immunity which distinguish between a state’s public actions (acta iure imperii) and its private or commercial activities (acta iure gestionis), only the first being subject to immunity, section 1605(a) FSIA applies to all tortious action of a foreign state committed in US territory, regardless of whether it is of a public or of a commercial character.
4 Although the District Court conceded by decision (Letelier v Republic of Chile (11 March 1980)) that the actions of the Chilean government in refusing to enter a formal appearance through counsel, or to communicate with the Court other than by diplomatic notes were not in conformance with jurisdiction proceedings (see also Diplomatic Communications, Forms of), it considered Chile’s objections. By notes of protest, Chile had vigorously contended that it was in no way involved in the events that resulted in the two deaths, and had further asserted that, even if it were, the Court had no subject-matter jurisdiction in that Chile was entitled to immunity under the FSIA, which does not cover political assassinations because of their public, governmental character. The Court dismissed the Chilean argument and held that neither the FSIA nor the act of state doctrine precluded the exercise of jurisdiction over a foreign sovereign state for a purported violation of both national and international law occurring in the US. By granting a default judgment, the Court ruled that, as the activity complained of was tortious in character, Chile was not immune from legal suit. The unambiguous language of section 1605(a) FSIA as well as the legislative history of the Act (cf. Congressional Committee Report on the Jurisdiction of United States Courts in Suits against Foreign States (1976) 1409) clearly provided for the lifting of immunity regardless of whether the tort was of a public nature or not.
5 Having secured the right to sue for both compensatory and punitive damages totaling more than US $5 million, including counsel fees and out-of-pocket expenses, in the District Court for the District of Columbia (Letelier v Republic of Chile (5 November 1980)), the families of Letelier and Moffitt filed for execution to satisfy the default judgment against Chile in the Southern District of New York. This action was taken to obtain damages from the Chilean national airline, Línea Aerea Nacional (‘LAN’), in which the Republic of Chile had property interests. The Court held that, as the activity of the airline was a commercial activity that had resulted in a gross abuse of the corporate form—the carrying of assassins—‘equitable principles’ dictated that LAN could not be considered a separate juridical entity from the government of Chile. Consequently, the airline was not immune from attachment of the execution judgment. The wording of section 1610(a)(2) FSIA did not limit execution only to commercial assets used for commercial purposes but also permitted execution to satisfy tort judgments as long as the assets on which the judgment creditor sought to execute were also used commercially in the activity giving rise to the claim (Letelier v Republic of Chile (28 July 1983); Letelier v Republic of Chile (21 December 1983)).
6 On appeal, however, the US Court of Appeals for the Second Circuit (Letelier v Republic of Chile (20 November 1984)) ruled that LAN could not be subject to execution against its assets to satisfy the default judgment. The Court held that the lower court had erred in ignoring LAN’s separate juridical status from the Republic of Chile and further found that the activity complained of was not a commercial activity. According to the Court it would be inconsistent to lift immunity in enforcement jurisdiction based on a finding that the activities were commercial whereas the adjudicative procedure had previously lifted jurisdictional immunity based precisely on the argument that the activities complained of were tortious, not commercial. The court stated further that the background of the FSIA strongly indicated that Congress had intended merely to allow commercial creditors to execute their judgments, and that in other cases no specific remedy had been prescribed (see also Remedies). When drafting the FSIA, Congress only intended to eliminate in part the absolute immunity of foreign states to judgment execution; acts of political terrorism were not the kind of commercial activities that Congress had contemplated. In order to support its conclusion, the Court referred to similar aspects laid down in the European Convention on State Immunity (1972) which did—and does—not ensure that a party may execute a judgment against a foreign state by attaching property, even if it may validly assert adjudicative jurisdiction over that foreign state (see also United Nations Convention on Jurisdictional Immunities of States and Their Property (2004)).
3. The Chilean Supreme Court Decision
8 Whereas attempts to obtain compensation from Chile thus finally proved successful, the criminal prosecution of those responsible for masterminding the assassination remained, for a long time, a remote prospect. After the conviction of Townley in 1978, it soon became apparent that any trial of those who had set the killing in motion would have to take place in Chile. The composition of the Chilean government, however, remained unchanged for another 12 years. Hence, there was no progress in the case until the installation of Patricio Aylwin’s democratic government when decades of judicial appeasement of the former military regime were reversed (Military Government). On 12 November 1993, Supreme Court Judge Bañados found General Contreras and Brigadier Espinoza guilty of being co-authors of Letelier’s assassination by directly inducing another to commit a crime. That decision was appealed to the court of last resort, the Chilean Supreme Court, which handed down its decision on 30 May 1995 (Letelier (30 May 1995)). In dismissing the appeal against conviction, the Court unanimously upheld the sentences imposed by the court of first instance, on Contreras and Espinoza as the intellectual authors of that assassination.
C. Evaluation
9 The Letelier and Moffitt claim has various important implications for today’s international law. Firstly, the rulings of the US courts may be seen as groundbreaking decisions on state liability for acts of terrorism conducted against political opponents. In particular, the judgment of the District Court for the District of Columbia can be considered as one of the first milestones of an arguably changing concept of jurisdictional immunity in international law. In deviation from former opinio iuris, it has now become a widely accepted rule that anyone suffering injury (death, personal injuries or damage to or loss of tangible property) in the venue state caused by a foreign state’s tortious act or omission may sue that foreign state for monetary compensation. This concept is determined by a variety of national codes, obviously influenced by section 1605(a)(5) FSIA (cf United Kingdom State Immunity Act (1978); Canada State Immunity Act (1982); Australia Foreign States Immunities Act (1985)), as well as by international treaties, notably Article 11 European Convention on State Immunity (1972) and Article 12 United Nations Convention on Jurisdictional Immunities of States and Their Property (2004) (‘UN Convention on Jurisdictional Immunities’). The primary object of these provisions is to enable victims of traffic accidents, which have been caused by officials of the defendant state, to bring a lawsuit at home. In practice, however, the adjudicative jurisdiction immunity exception has been applied, since the Letelier case, to a much wider range of tort situations, including intentional assault, homicide and political assassination (cf Liu v China (1986) 305; Liu v China (1989); Distomo Case (Germany v Autonomous Prefecture of Voiotia) (2000); on the other hand see Germany v Margellos and 18 Natural and Legal Persons (2002) 203). The 1996 amendment to FSIA even created, with section 1605(a)(7), an additional category of non-immune conduct as to a limited range of acts committed by states designated as ‘state sponsors of terrorism’ (cf Flatow v Iran (11 March 1998); Certain Iranian Assets (Islamic Republic of Iran v United States) (30 March 2023)). Both several national legislations and the UN Convention on Jurisdictional Immunities thus deny the acta iure imperii/iure gestionis dichotomy in the tort exception by pointing out that the basis for the assumption and exercise of jurisdiction is the principle of territoriality. The lex locus delicti commissi offers substantial territorial connection regardless of the motivation of the act or omission and irrespective of the nature of the activities involved. This marks a considerable improvement in the legal position of victims of state terrorism, who are no longer dependent solely on the guarantee of diplomatic protection by their home country and can now bring actions themselves. However, diplomatic protection is still the overriding mechanism; Article 12 UN Convention on Jurisdictional Immunities expressly gives priority to agreements between the states concerned. Furthermore, the tort immunity exception only applies where the place of action and occurrence lie in the forum state; border-crossing torts or torts committed exclusively on the territory of the defendant state are not covered either by the relevant national or by international codes (cf Argentina v Amerada Hess Shipping Corporation (1989); further Princz v Germany (1 July 1994)). Hence, the current controversial issue of the relationship between the international rule on foreign state immunity and human rights norms having the character of ius cogens is not primarily touched by the Letelier findings, unless there is a connecting link to the forum state (see also Al-Adsani Case).
10 The decision of the Court of Appeals for the Second Circuit discloses that the lifting of adjudicative jurisdictional immunity in tort actions has to be clearly distinguished from the question of how far there can be execution on property of a foreign state. Even though the victims’ families in Letelier (1995) had been victorious in all court proceedings, they were unable to seek an order of execution against any assets that the Chilean government itself had in the US. Such an order would have obviated the need to enter into the complexities of the nexus requirement pursuant to section 1610(a)(2) FSIA by establishing whether a national entity was, or had become, an instrumentality of the state. However, there were good reasons for the Court of Appeals to maintain the principle of relative state immunity in enforcement procedures: the forced sale of state assets leads to particularly intensive interference with the sovereign interests of the defendant state (Sovereignty), since it may hamper its functional capacity. Judicial practice has accordingly admitted exceptions to enforcement immunity only reluctantly, the focus is mostly on whether the objects of enforcement serve sovereign or commercial purposes (cf NV Cabolent v National Iranian Oil Company (1968); Anonymous Landlord v Philippines (1977); National Iranian Oil Company (1983); Jurisdictional Immunities of the State (Germany v Italy) (3 February 2012); Kenyan Diplomatic Residence Case (2003); Case No VII ZB 8/05 (2005); Waiver of Diplomatic Immunity (2006) 242, para. 39), or at least whether there is a nexus between the ground of action and the object of enforcement. The recent codes on jurisdictional immunity generally contain similar provisions; also Article 19(c) and Article 21 UN Convention on Jurisdictional Immunities largely keep to these models.
11 Secondly, the panel decision of the Chile–United States Commission shows that any award of punitive damages, despite their availability under US law, is excluded under the international rules on state liability. With regard to the loss of life, international law allows only for the compensation of moral suffering and reasonably foreseeable economic loss of income of the victim’s family, while requiring at the same time the test of proximity and excluding remote damages. The commentaries of the International Law Commission (ILC) to the Articles on Responsibility of States for Internationally Wrongful Acts ((2001) 59) expressly rely on the Letelier case when considering the function of Article 36 as being purely compensatory. Compensation on the international plane is, thus, not aimed at punishing the responsible State, nor does it have an expressive or exemplary character.
12 The ruling of the Chilean Supreme Court is, thirdly, significant in that it confirms criminal convictions of military officers, whose activities had hitherto been viewed in Chile as above the law. Furthermore, the decision serves—even in view of the indispensable work of the International Criminal Court (ICC)—as a reminder of the undiminished importance of domestic courts and legislation in the prosecution of those responsible for serious abuses of basic human rights. Finally, the Letelier case has presumably acted as a catalyst in the quest for a more open accounting of Chile’s recent past and played a major incentive role in the criminal proceedings against General Pinochet (Pinochet Cases) and the related question whether (former) state officials still enjoy functional immunity when committing serious violations of fundamental human rights norms.
![Max Planck Encyclopedia of Public International Law [MPEPIL]](/view/covers/epil.jpg)
