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D.C. District Court Enters Over $300 Million Default Judgment Award Against Syria for the Death of Marie Colvin

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On February 1, 2019, the United States District Court for the District of Columbia granted a motion for default judgment and entered a $302,511,836.00 award against the Syrian Arab Republic (“Syria”). The court found the Syrian government liable for the death of Marie Colvin, who died in an artillery shelling on February 22, 2012, at a media center in the city of Homs. Colvin was a heralded war correspondent who had previously “cover[ed] conflict zones in Iraq, Chechnya, the Balkans, East Timor, Sri Lanka, Sierra Leone, and Libya.” Colvin's heirs brought suit, claiming that because Syria had been designated a “state sponsor of terrorism,” it could be held liable for an extrajudicial killing of a U.S. national under the Foreign Sovereign Immunities Act (FSIA). Judge Amy Berman Jackson concluded that the plaintiffs met the evidentiary burden required to support their claim after finding personal and subject matter jurisdiction.

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1 Colvin v. Syrian Arab Republic, 363 F. Supp. 3d 141, 146 (D.D.C. 2019).

2 Id. at 149.

3 Id. at 146 & nn. 1–2, 153; see also Complaint at 28–30, Colvin v. Syrian Arab Republic, 363 F. Supp. 3d 141 (D.D.C. 2019) (No. 16-1423).

4 Colvin, 363 F. Supp. 3d at 146.

5 Id. at 146–47 & nn. 3–4. The court drew upon expert reports and upon declarations provided by Syrian government defectors and by individuals present at the events. The expert reports were authored by Ewan Brown (a consultant for the Commission for International Justice and Accountability); David Kaye (the UN special rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression); and Robert Ford (the U.S. ambassador to Syria at the time of the events in question). Id. at n. 3.

6 Id. at 148 (quoting the expert report of Ewan Brown).

7 Id. at 148–150.

8 Id. at 150–51.

9 Id.

10 Id. at 151 (noting that Syrian military officials later gathered and “drank to a successful operation” in “locating and attacking the Media Center” and that the commander of the assault received “a new car as a reward for the successful attack” from a higher-ranked military official who was also President Assad's brother).

11 Id.

12 Complaint at 28, 30–31, Colvin v. Syrian Arab Republic, 363 F. Supp. 3d 141 (D.D.C. 2019) (No. 16-1423).

13 Colvin, 363 F. Supp. 3d at 152; 28 U.S.C. § 1608.

14 28 U.S.C. § 1608(a)(1)–(4); see also Republic of Sudan v. Harrison, 139 U.S. 1048 (2019) (interpreting one aspect of the statutory requirement for service of process).

15 Colvin, 363 F. Supp. 3d at 146, 154–55 (noting that the U.S. State Department sent these documents to the Czech Embassy in Syria, which in turn provided them to the Syrian Ministry of Foreign Affairs).

16 Plaintiffs' Motion for Default Judgment, Colvin v. Syrian Arab Republic, 363 F. Supp. 3d 141 (D.D.C. 2019) (No. 16-1423). “Federal Rule of Civil Procedure 55(a) provides that the Clerk of the Court must enter a party's default ‘[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise.’” Colvin, 363 F. Supp. 3d at 152 (quotations omitted).

17 Colvin, 363 F. Supp. 3d at 152. Further, “[u]nder the Foreign Sovereign Immunities Act, a court may not enter default judgment against a foreign state ‘unless the claimant establishes his claim or right to relief by evidence satisfactory to the court.’” Id. (citing 28 U.S.C. § 1608(e); Han Kim v. Democratic People's Republic of Korea, 774 F.3d 1044, 1047 (D.C. Cir. 2014)) (quotations omitted).

18 Id. at 152–53 (citing 28 U.S.C. § 1605A(a)(1)). The court did not discuss the extent to which this FSIA exception is consistent with customary international law. See, e.g., Restatement (Fourth) of Foreign Relations: Selected Topics in Treaties, Jurisdiction, and Sovereign Immunity § 460 rep. note 11 (2018) (stating that “it is not clear that § 1605A contravenes any presumptive jurisdictional constraint under international law”); Finke, Jasper, Sovereign Immunity: Rule, Comity or Something Else?, 21 Eur. J. Int'l L. 853, 863–64 (2010) (discussing the extent to which customary international law recognizes exceptions to state sovereign immunity); cf. Jurisdictional Immunities of the State (Ger. v. It.: Greece intervening), Judgment, 2012 ICJ Rep. 1031, para. 78 (“[T]he Court considers that customary international law continues to require that a State be accorded immunity in proceedings for torts allegedly committed on the territory of another State by its armed forces and other organs of State in the course of conducting an armed conflict”).

19 28 U.S.C. § 1605A(a)(1) –(2); § 1605A(h)(6).

20 Id., § 1605A(a)(2)(ii).

21 Id., § 1605A(a)(2)(iii).

22 Colvin, 363 F. Supp. 3d at 154 (citing 15 C.F.R. § 742.9(a)(2) (2013)). Syria is the longest listed member on the State Department's current roster of state sponsors of terrorism. See U.S. Dep't of State, State Sponsors of Terrorism at https://www.state.gov/j/ct/list/c14151.htm [https://perma.cc/6NCL-M9PK]. With respect to Syria's continuing designation, the State Department has noted Syria's support of Lebanese Hizballah, the support Syria has received from “Shia militia groups, some of which are U.S.-designated Foreign Terrorist Organizations aligned with Iran,” and more generally “the Assad regime's permissive attitude towards al-Qa'ida and other terrorist groups' foreign terrorist fighter facilitation efforts during the Iraq conflict.” Chapter 2: State Sponsors of Terrorism, in U.S. Dep't of State, Country Reports on Terrorism 2017, at https://www.state.gov/j/ct/rls/crt/2017/282847.htm [https://perma.cc/EW93-CVJV].

23 Colvin, 363 F. Supp. 3d at 154 (citing 8 U.S.C. § 1101(22); § 1605A(h)(5); 28 U.S.C. § 1605A(a)(2)) (quotation omitted).

24 Id. at 153–54. In finding that the plaintiffs presented sufficient evidence to show that the Syrian government “caused” the extrajudicial killing of Marie Colvin, the court noted that the D.C. Circuit has interpreted the FSIA to only require “a showing of proximate cause.” Id. at 153. A showing of proximate cause is met “so long as there is some reasonable connection between the act or omission of the defendant and the damages which the plaintiff has suffered.” Id. (citations and quotations omitted). Declarations submitted to the court provided that the Syrian government knew foreign journalists were broadcasting somewhere within Baba Amr. Id. The Syrian government then “uncovered the location of the Media Center through informants and launched an artillery attack at a time foreign journalists were inside, thereby causing Colvin's death.” Id.

25 Id. at 154–55. U.S. courts have personal jurisdiction over foreign states for claims of relief in which service is made pursuant to 28 U.S.C. § 1608. 28 U.S.C. § 1330(b).

26 Colvin, 363 F. Supp. 3d at 155 (citing 28 U.S.C. §§ 1605A(c), (a)(1)).

27 Id. at 156. With respect to the first element, the court noted that, like Colvin herself, the plaintiffs have U.S. citizenship. Id.

28 Id. (quotations and citation omitted). The FSIA only provides that in an action for personal injury or death caused by a foreign state, “damages may include economic damages, solatium, pain and suffering, and punitive damages.” 28 U.S.C. § 1605A(c).

29 Complaint at 30–31, Colvin v. Syrian Arab Republic, 363 F. Supp. 3d 141 (D.D.C. 2019) (No. 16-1423).

30 Colvin, 363 F. Supp. 3d at 156 (citing Shoham v. Islamic Republic of Iran, No. 12-cv-508 (RCL), 2017 WL 2399454, at *18 (D.D.C. June 1, 2017)).

31 Id. at 157 (citing Restatement (Second) of Torts § 46(1)).

32 Id.

33 Id.

34 Id. at 158; cf. Republic of Sudan v. Owens, 194 A.3d 38 (D.C. 2018) (concluding with respect to a question certified to it by the D.C. Circuit that, as a matter of D.C. tort law, family members do not need to be physically present to assert IIED claims regarding harms to their relatives during terrorist attacks).

35 28 U.S.C. § 1605A(h)(7).

36 Torture Victim Protection Act 1991, Pub. L. No. 102–256, § 3(a), 106 Stat. 73, 73 (1992).

37 Colvin, 363 F. Supp. 3d at 158–59.

38 Id. at 161. The court did not assign a specific damages amount for lost income in this opinion, as it wished to delay doing so until receiving “an updated [expert] report … that accounts for Colvin's consumption costs.” Id.

39 Id. at 161–63.

40 Id. at 163 (citation omitted).

41 Id.

42 Id.

43 Id.

44 Id. at 164.

45 Id. at 164–65. For a critique of this award, see Haim Abraham, Awarding Punitive Damages Against Foreign States Is Dangerous and Counterproductive, Lawfare (Mar. 1, 2019), at https://www.lawfareblog.com/awarding-punitive-damages-against-foreign-states-dangerous-and-counterproductive (arguing that large punitive damages awards against foreign states are problematic because they impede “the ability of individuals to enforce awards of compensation against foreign states within the United States,” and that punitive damages pose a risk to “the peaceful international order” by placing the court “in a position of authority over the defendant”); see also Bissell, E. Perot & Schottenfeld, Joseph R., Comment, Exceptional Judgments: Revising the Terrorism Exception to the Foreign Sovereign Immunities Act, 127 Yale L.J. 1890 (2018) (arguing for a more restrictive approach to the use of punitive damages in FSIA cases involving state sponsors of terror).

46 Affidavit Requesting Foreign Mailing on April 8, 2019 at Ex. 4, Colvin v. Syrian Arab Republic, 363 F. Supp. 3d 141 (D.D.C. 2019) (No. 16-1423). Cf. Bissell & Schottenfeld, supra note 45, at 1897–98 (noting the difficulties in enforcing judgments under the FSIA's terrorism exception and describing the establishment of various victim compensation funds).

47 U.S. Dep't of State Press Release, Marie Colvin Civil Suit Against the Syrian Regime (Feb. 1, 2019), at https://www.state.gov/r/pa/prs/ps/2019/02/288720.htm [https://perma.cc/8W9G-PT4T]. This press release came as the Trump administration began winding down the U.S. presence in Syria by withdrawing U.S. forces. Jean Galbraith, Contemporary Practice of the United States, 113 AJIL 394 (2019).

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