Bad Timing: The US, Iran, and the East Africa Embassy Bombing Judgement

Yesterday, a US judge awarded victims of the Embassy bombings in Kenya and Tanzania $622 million in damages against the governments of Sudan and Iran. It is important to see justice served for those injured. However, the timing of the release amid efforts to engage Iran on nuclear policy and the fight against ISIL is unfortunate.

First, a bit of background about the case.

The plaintiffs filed the case, Owens et al. v. Republic of Sudan et al., in the United States District Court for the District of Columbia under the 1996 amendment to the Foreign Sovereign Immunities Act (FSIA) that revoked jurisdictional protection for countries sponsoring terrorist acts. The defendants included the Republic of Sudan, the Republic of Iran, and two of their respective ministries on a theory that they had provided material support to Hezbollah and al Qaeda, both of which were believed to have been responsible for the August 1998 attack. Judge John Bates awarded damages to most of the plaintiffs in March 2014. This week’s order relates to the remaining 12 US citizen plaintiffs, referred to as the “Aliganga plaintiffs” who are named after Jesse Aliganga, an American Marine killed in the Nairobi blast.

FSIA cases usually involve an ex parte trial on liability, but the Republic of Sudan and its Ministry of Interior entered an appearance through counsel in 2003 and filed a motion to dismiss. In 2006, Judge Bates denied that motion. After a tortured procedural history and the D.C. Circuit opinion in Cicippio-Puleo v. Islamic Republic of Iran that denied Congress had created a cause of action against a foreign state under FSIA, Congress explicitly created one in §1083 of the 2008 National Defense Authorization Act. After trial, Judge Bates found Iran and Sudan liable for damages resulting from the Embassy bombings due to material aid and support for Osama bin Laden, al Qaeda, and Hezbollah.

While I am glad to see justice for victims of the bombings, the timing of the damages award could harm several crucial diplomatic efforts involving the US and Iran.

The ruling is unlikely to have any material diplomatic consequences with respect to Sudan in light of our current adverse posture. Reaction in Iran, however, will be much more interesting to watch. Notwithstanding longstanding enmity, the US and Iran are in the midst of delicate negotiations in an effort to reach a nuclear deal before the November deadline. On the same day as Judge Bates’s order, Secretary of State John Kerry was in Vienna for six hours of talks with Iranian Foreign Minister Mohammad Javad Sarif and European Union foreign policy chief Catherine Ashton. The US is also trying to find a way to work constructively with—or at least not against—Iran to fight ISIL. Iranian President Hassan Rouhani told the UN General Assembly on Sept. 25 that Iran’s promises of help to defeat ISIL depend on Western concessions on the nuclear deal. Rouhani has spent significant political capital on reaching a nuclear deal and the timing of this opinion could be seized on by hardliners as evidence of bad faith.

Uncoordinated government action is a consequence of our system of separation of powers but it often looks coordinated and intentional to foreign governments, not to mention their populations. The timing of this judgment is is very likely an unfortunate coincidence. Still, it remains to be seen whether it will have any appreciable effect on nuclear program negotiations and the effort to combat ISIL, either in Iran’s domestic political discourse or at the international bargaining table. 

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About the Author(s)

Andy Wright

Senior Fellow and Founding Editor of Just Security, former Associate Counsel to the President in the White House Counsel’s Office. You can follow him on Twitter @AndyMcCanse.