JASTA: A Tragedy of American Hypocrisy, Sovereign Immunity, and International Relations

In a rare show of bipartisanship on September 28 this year, the United States Congress overwhelmingly overrode President Obama’s veto of the Justice Against Sponsors of Terrorism Act (JASTA). Congress ignored the president’s repeated warning that the bill would set a “dangerous precedent” for individuals and nations across the globe to sue the American government and its employees for overseas actions. US courts will now permit civil claims against foreign nations or officials for acts of terrorism on American soil, consequently dismissing foreign nations’ claims to sovereign immunity. Since fifteen of the nineteen terrorists involved in 9/11 were from Saudi Arabia, JASTA allows families of 9/11 victims to sue the Saudi government for playing an alleged role in the attacks. The claim contains no grounds as the US 9/11 commision found “no evidence that the Saudi government as an institution or senior Saudi officials individually funded the organization.” JASTA reveals the longstanding American hypocrisy concerning sovereign immunity. In addition, it will have grave domestic and worldwide implications, such as potential reciprocal action from other nations, damaging a long-standing US-Saudi relation which has cooled significantly since the Iran Nuclear Deal. Ultimately, JASTA will also likely hinder urgent cooperative efforts against battling ISIS and resolving regional conflicts in the Middle East.

The US has long opposed international courts capable of holding the American military and citizens to a global standard of justice, primarily the International Criminal Court (ICC). In 2002, the Bush Administration passed the American Servicemembers Protection (ASP). This law, commonly labeled as the ‘Hague Invasion Act’ permits the use of military force to liberate American citizens held up by the ICC in The Hague, Netherlands. In addition, ASP threatens the withdrawal of US military forces from any country seeking to ratify the ICC’s treaty, the Roman Statute. The law also prohibits US contribution to UN peacekeeping missions unless the US is granted immunity from any form of prosecution. As other nations seek to “strengthen the rule of law,” the US has long protected itself from international prosecution, strong-arming and sculpting uniform global jurisdictive systems to its own liking. JASTA is just the latest legislation that sheds light on such hypocrisy and the double standard on international criminality the US upholds.

Furthermore, JASTA leaves the US more susceptible to reciprocal action from foreign nations and risks damaging US relations with the world. Repeated use of US drone-strikes in Yemen, Somalia, Libya, Pakistan, and Afghanistan could now result in these nations to consider these American acts of terrorism, subjecting the US to potential liability in foreign courts which often operate under different legal standards. Furthermore, with the enactment of JASTA, the US risks losing billions of dollars in investment from Saudi Arabia, one of its top trading partners. Saudi foreign minister, Adel al-Jubeir threatened to sell up to $750 billion in Saudi treasury securities and other assets. Taking into account the fact that the US has been involved, be it militarily, economically, or politically in numerous countries, such a move by Saudi Arabia would likely diminish overall cooperation and confidence in the US around the globe. Countries may become wary of furthering ties with the US, as JASTA waives their claims to sovereign immunity. Abdullatif al-Zayani, Secretary General of the Gulf Cooperation Council (GCC), condemned JASTA, labelling it “contrary to the foundations and principles of relations between states and the principle of sovereign immunity enjoyed by states.” Even Russia and the European Union (EU) strongly condemned the legislation, with the Russian foreign ministry stating, “The United States, where many politicians have come to believe in their own ‘uniqueness,’ insistently continues along the line of extending its jurisdiction to the entire world, disregarding the notions of state sovereignty and common sense.” A spokesperson of the EU said, “We do not believe the approach set out in the JASTA is in the interest of either the EU and US.” JASTA will most likely set off a reciprocal jurisdiction warfare against the US, putting its employees abroad in positions of vulnerability and damaging its foreign ties, as seen from the swift international denunciation of the legislation.

While JASTA may result in mostly domestic repercussions, it will also have implications for its specifically targeted nations, such as Saudi Arabia. Tensions between the United States and Saudi Arabia have remained high since the signing of the Iran Nuclear Deal, which the Saudis see as an American pivot to its longtime regional nemesis. The enactment of JASTA is very ill-timed for Saudi Arabia, which is currently pursuing its Vision 2030 – an economic blueprint for the nation aimed at decreasing its dependency on oil by increasing non-oil revenue. Vision 2030 has already attracted significant American interest from large corporations, economists, and financiers. Talks earlier this year in June between the American government’s economic team and the Saudi Ministry of Energy and Natural Resources addressed the importance of oil and energy, two resources serving as major cornerstones of bilateral economic relations.

Saudi Arabia currently does not need any hiccups in improving bilateral relations with the US, especially while initiating its national transformation plan that depends significantly on foreign investors. Therefore, with the enactment of JASTA and the Saudi threat to sell billions of dollars in assets in the US, the Arab nation is put in a highly complicated situation. Saudi Arabia is now faced with the choice of continuing its pursuit of open ties with the US, a nation that has waived its sovereign immunity rights through JASTA, and consequently risk domestic and international audience costs, or carrying forth with its threat and risk the loss of major American investors in this critical time. Of course, while Saudi Arabia has numerous business partners in Asia and Europe, the United States still remains one of its top major trading partners. Hence, the passage of JASTA significantly complicates the longstanding question on the table — whether the US needs Saudi Arabia more or the contrary.

Yet, beyond these legal and economic repercussions, the more urgent reality that could be gravely damaged by JASTA is the necessity for Saudi cooperation with the US in resolving regional issues. The US needs Saudi Arabia and its counterterrorism intelligence in combatting the Islamic State, resolving the Syrian and Yemen wars, and bringing about some form of “cold peace” to the region with Saudi Arabia’s regional enemy, Iran. Without Saudi Arabia, the US would face greater challenges from countries with highly differing foreign policies, such as Turkey and Russia, when attempting to resolve these issues on international platforms. JASTA may possibly deliver a major blow to the long-standing US-Saudi alliance, however strained it may already be, thus hindering the two major nations’ overall efforts in seeking solutions to the multitude of issues in the Middle East. Furthermore, as JASTA potentially fuels existing anti-American sentiment in the Arab world, the US must take into account that Saudi Arabia still remains the home of the fundamentalist branch of Islam, Wahhabism, which has cultivated numerous extremists the US desperately tries to defeat. Needless to say, it does not take an expert to comprehend the dangers this may result in.

With its exposure of flagrant American hypocrisy surrounding sovereign immunity, the possibility of putting Americans at home and abroad at risk, and the potential disruptions and tensions in the international community it may cause, JASTA is simply just not the best way at all to stand in solidarity with 9/11 families.