There’s a game I play at the start of each Supreme Court term. Considering the bitter partisanship and irresoluble polarization gripping the country – and by extension our ever-more deeply divided Supreme Court – I try to identify the case that seems most likely to lead to a unanimous decision. It’s a tradition you can attribute to my longing, as singer Bill Monroe or newly confirmed Supreme Court Justice Brett Kavanaugh might put it, to “live on the sunny side of the mountain.”
I thought I had the case for the Court’s 2018-2019 term. Sudan v. Harrison, set for oral argument on November 7, had everything going for it. That is, everything seemed to point towards an unproblematic, unanimous resolution until Saudi Arabia lured Jamal Khashoggi, a journalist and recent resident of Virginia, into its consulate in Istanbul in order to torture and murder him. Now, I wonder whether that grisly tragedy on the west bank of the Bosporus mighty muddy the result in Sudan v. Harrison.
Without that dreadful turn of events, it might have been a straightforward case.
The survivors of the devastating attack on the U.S.S. Cole in 2000 recently obtained a $314 million judgement against Sudan on the theory that the perpetually troubled and tumultuous North African country had provided material support to the al-Qaeda terrorists who attacked the naval destroyer while it was refueling in Yemen. Among the damning bits of evidence incriminating Sudan was the fact that the country tolerated Osama bin Laden’s residence in the country in the years leading up to the bombing of the Cole and the 9/11 attacks shortly thereafter. Sudan unsuccessfully challenged the district court orders securing Sudanese assets for the satisfaction of the judgement. It then sought and was granted certiorari review from the Supreme Court when the Second Circuit refused to overturn those orders.
It could have been a straightforward case for the Supremes, but it wasn’t going to end well for the American sailors. Instead, despite the heartrending facts, I expected Sudan to walk away with a unanimous Supreme Court victory. That’s because the survivors had been awarded damages on the basis of a default judgment granted to them when Sudan failed to appear in the case following the plaintiffs’ problematic – and now, intensely contested – service of the summons and complaint.
In a Foreign Sovereign Immunities Act case, like the Cole survivors’ suit against Sudan, if other statutory means aren’t viable, then § 1608(a)(3) of the Act permits service “by sending a copy of the summons and complaint and a notice of suit, […] by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the head of the ministry of foreign affairs of the foreign state concerned.” The Cole plaintiffs, relying on this provision, addressed the complaint to the Sudanese foreign minister and directed the delivery of the documents to Sudan’s embassy in Washington, D.C. In its challenge to the district court’s asset seizure orders, Sudan argued that the delivery of the complaint at the Sudanese embassy wasn’t compatible with § 1608(a)(3) and constituted a violation of Article 22 of the Vienna Convention on Diplomatic Relations. The latter provides that “the premises of the mission shall be inviolable.” The Second Circuit disagreed, noting that the plaintiffs had not served the complaint on the embassy, which everyone agrees would be impermissible. Instead, the Circuit Court reasoned that the plaintiffs had correctly addressed the suit to the Sudanese foreign minister (as § 1608(a)(3) requires) and only sought delivery to him through or via the embassy. Through, not on, the embassy? Surely the Supreme Court would make quick, unspectacular work of this dispute over prepositions on which the essence of a state’s international sovereignty depended.
There were a number of reasons for thinking this would be a slam dunk for Sudan. First, the Second Circuit’s decision could be characterized as being in conflict with rulings on § 1608(a)(3) from the D.C., Fifth, and Seventh Circuits – even if the plaintiffs can subtly distinguish their case from the others. Second, the Circuit Court itself seemed to demur in its judgment, acknowledging that the “statutory interpretation question presents a close call,” and that the language of § 1608(a)(3) “is not completely clear.” Was this a concession to what Sudan and others referred to as the “dubious semantics” of the Circuit Court’s reasoning? Third, the Second Circuit’s shaky reasoning runs headlong into seemingly rock-solid international law doctrine. The inviolability of states’ diplomatic missions is widely treated as a foundation of the international order. It shows the necessary respect for the sovereignty states enjoy and exercise over their diplomatic missions. It facilitates the kind of direct diplomacy that helps to maintain the fragile peace of the state system. Fourth, the United States joined the case, offering vigorous and unqualified support for Sudan’s positions, even though taking that stance pitted the American government against its wounded veterans and aligned it with a designated “state sponsor of terrorism.” Those unseemly circumstances suggest that the U.S. government has more than a casual interest in the legal principles in the case. Indeed, the U.S. government insists in its brief that the Supreme Court should defer to the executive branch’s interpretation of the statutory and treaty-based rules in the case. Fifth, the Supreme Court could be reassured that, by handing Sudan a victory, it would not be delivering a fatal blow to the sailors’ case. A reversal of the Second Circuit’s judgement would lead to a remand to the district court which would finally consider the merits of the plaintiffs’ Foreign Sovereign Immunities Act claims.
But, Khashoggi’s murder changes that calculus and it could complicate the Harrison case. The central logic of a ruling in favor of Sudan is the need to ensure diplomatic missions’ inviolability, even from the seemingly mundane service of the papers that initiate a lawsuit. That absolutist approach to the inviolability of a diplomatic mission is secured by the Vienna Convention and, in the case of the United States, it is implemented by provisions of the Foreign Sovereign Immunities Act. But should the Supreme Court unquestioningly embrace that rule after Saudi Arabia’s grotesque, and cynical reliance on the principle of inviolability for the use of its consulate in Istanbul as a black-site to torture and kill Khashoggi? Sure, evading service of process is a far cry from impunity to commit murder. But the logic of the asserted privilege of inviolability supports both acts.
In their briefs, Sudan and the United States insist that the inviolability of diplomatic missions secured by Article 22 of the Vienna Convention (a guarantee applicable to consular facilities pursuant to Article 31(1) and (2) of the Vienna Convention on Consular Relations) is so absolute that it must preclude the service of process on an embassy by post. The absolutist view is strongly endorsed by a group of respected international law professors who submitted an amicus curiae brief in support of Sudan. They argue that any form of service of process – whether on or through the embassy – runs the risk of impairing diplomatic functions and impinging upon the dignity of foreign embassies. In their briefs, Sudan, the United States, and others, illustrate the unqualified nature of mission inviolability with the claim that the receiving state is prevented from sending fire crews onto embassy grounds in order to put out a fire, unless it has consent to battle the flames from the head of the diplomatic mission. Inviolable is inviolable. No exceptions. Not even if it enables Saudi Arabia to murder and dismemberment of a dissident journalist.
Must we – must the Supreme Court – endorse this absolutist interpretation of Article 22? At least as the justices consider what might have been a straightforward case, the Khashoggi murder might persuade one or two to of the justices to dissent from the prevailing approach. After all, this “fundamental and longstanding principle of international law” has a history of evolution and adaptation that is not acknowledged by the petitioner and others. Eileen Denza’s frequently cited, definitive commentary on the Vienna Convention relates a more nuanced background, one that involved exceptions to the rule for many centuries. As recently as the early 20th Century, commentary and diplomatic practice recognized the need for some departures from the principle of inviolability, especially for the purpose of disrupting or investigating crimes. Denza cites a Dutch deviation from the rule for those purposes in 1966. Even if the negotiations leading to the promulgation of the Vienna Convention in 1961 confirm that the parties sought to codify the absolutist position advanced by Sudan and the United States, it nevertheless should be forcefully remarked that this treaty commitment cannot be offered as a justification for the violation of jus cogens norms such as prohibitions on crimes against humanity and on torture.
In any case, an absolute understanding of mission inviolability invokes an archaic assertion of sovereignty that no longer fits our times. Globalization and the burgeoning system of international human rights law, as they strain to expand markets and impose accountability, long ago disposed of absolutist notions of sovereignty. The theory justifying an emerging “responsibility to protect” surely must apply to a sovereign’s diplomatic holdings every bit as much as it applies to the sovereign’s homeland. Within the substantive and procedural boundaries it establishes, the Foreign Sovereign Immunities Act itself participates in this historic shift away from absolutist notions of sovereign inviolability. The absolutist understanding of mission inviolability also embraces an outdated, romantic vision of diplomacy that imagines trained consuls meeting in-person at elegant bars and ferrying secretive information about in diplomatic pouches. The reality couldn’t be more different, as even some diplomatic heavyweights have begun to close their embassies and consulates in the last years. Cost-savings have driven that trend. But so has the growing interest in so-called “virtual diplomacy.” Increasingly, a lot of the work of a foreign mission – including citizen services and providing information to the government and public in the receiving state – can be accomplished through new technologies. The “U.S. Virtual Embassy in Iran” is a dramatic example. Some argue that, in our warp-speed world, the delays associated with the old brick-and-mortar version of diplomacy now pose as many risks as advantages.
As the justices debate the limits of mission inviolability in Sudan v. Harrison, I hope some of them will be troubled as much as I am by these lines: “There is no more fundamental prerequisite for the conduct of relations between states than the inviolability of diplomatic envoys and missions.” Yes. That’s from the amicus brief Saudi Arabia submitted in support of Sudan’s case. Maybe Sudan v. Harrison won’t be the term’s slam-dunk unanimous case after all.