Sudan Must Pay Billions to Embassy Bombing Victims: Supreme Court
Thu, April 22, 2021

Sudan Must Pay Billions to Embassy Bombing Victims: Supreme Court


Sudan also provided hundreds of Sudanese passports to al Qaeda and its leader. / Photo by Billion Photos via Shutterstock


In a unanimous ruling, the US Supreme Court recently sided with the families of victims of the 1998 US embassy bombings in Kenya and Tanzania.


The 1998 bombings of US embassies in Kenya and Tanzania

Terrorist group al Qaeda claimed responsibility for the 1998 bombings of US embassies in Kenya and Tanzania that killed 224 people and wounded thousands. Many of the victims and their families sued Sudan, accusing the country of helping al Qaeda in the detonation of truck bombs outside the US embassies.

Although Sudan did not participate in the trial, Judge John D. Bates of the Federal District Court in Washington found in 2011 that Sudan provided “support and protection” to the said terrorist group and its then-leader Osama bin Laden.

According to a report published by the New York Post, citing the 2011 ruling, Judge Bates wrote that “Sudan harbored and provided sanctuary to terrorists and their operational and logistical supply network.” Furthermore, the al Qaeda received crucial assistance from the Sudanese military and intelligence from rival militants and foreign intelligence services. Sudan also provided hundreds of Sudanese passports to al Qaeda and its leader. Through the Sudanese intelligence services, the terrorist group traveled over the border of Sudan-Kenya without restriction.

The plaintiffs in the said case were awarded about $10.2 billion in damages, including $4.3 billion in punitive damages. Ordinarily, foreign nations are immune from suits filed in US courts. However, Congress has made certain exceptions, including the acts of terrorism conducted by countries designated to be state sponsors of terrorism. The said law was passed in 1996 and it enabled plaintiffs to seek compensation for their losses. At that time, punitive damages were not included in the award, which was supposed to deter and punish wrongdoing.

In 2008, Congress amended the law so plaintiffs can seek punitive damages in some settings. The question now faced by the Supreme Court is whether the 2008 amendment will apply retroactively for the 1998 embassy bombings. Retroactive law operates to make the act punishable even if the act or crime was done before the passing of the law.


Retroactive law operates to make the act punishable even if the act or crime was done before the passing of the law. / Photo by Billion Photos via Shutterstock


Awarding punitive damages to the victims and their family

Sudan appealed from the said judgment on various grounds, such as it was improper to award punitive damages.

Justice Neil Gorsuch wrote in the court’s opinion that the “Constitution discourages retroactive lawmaking in so many ways.” The prospective application of the law allows groups and people to be assured that their lawful conduct today will not be second-guessed later on. However, since “foreign sovereign immunity is a gesture of grace and comity, it is also something that may be withdrawn retroactively” without the same risk to equal protection and due process principles that other kinds of backward-looking law pose.

Justice Gorsuch added that if Congress wanted to apply a federal law retroactively, it must say so clearly and this is what happened when it authorized the plaintiffs to win punitive damages for past acts. On the other hand, Sudan argued that the law fails to authorize the retroactive punitive damages “sufficiently clearly” since the law used the word “may.” But Justice Gorsuch wrote that such language vests the district courts with discretion to determine if the punitive damages are appropriate after considering the facts of a certain case.


The 8-0 vote of justices

The Supreme Court justices voted 8-0, reversing the decision of the lower court that concluded Sudan was immune from the litigation because of the Foreign Sovereign Immunities. Justice Brett M. Kavanaugh recused himself from the case, perhaps since he previously considered a part of it when he was on the federal appeals court.



State Sponsor of Terrorism

The State Sponsor of Terrorism is a designation applied by the US Department of State to countries that have “repeatedly provided support for acts of international terrorism.” Currently, the US Department of State designated four countries under these authorities. These include Sudan, Syria, Iran, and the Democratic People’s Republic of Korea (North Korea).

In February, the transitional government of Sudan also paid a settlement of $70 million to the families of victims of the 2000 US Cole, a bombing in Yemen. The USS Cole incident was a suicide attack by the terrorist group against a guided-missile destroyer of the United States Navy while it was refueled in the Yemeni port of Aden.

With the said settlement agreement, Sudan’s Ministry of Justice said that it “explicitly affirmed that the government is not responsible” for the incident and other terrorist acts. It also said that the government entered into settlement out of concern to “settle the historical allegations of terrorism left by the former regime.”

Sudan’s new government is seeking to get it removed from the United States list of state sponsors of terrorism. It also hopes to rebuild its relations with the international community.



Global distribution of terrorism

According to Our World in Data, a scientific online publication that focuses on large global problems, the region that experiences the most terrorism in the world is the Middle East and North Africa, accounting for 10,819 confirmed deaths in 2017, including all victims and attackers who died as a result of the incident. It is followed by South Asia with 7,667 deaths in 2017, Sub-Saharan Africa (6,712), Southeast Asia (811), North America (124), Eastern Europe (101), South America (101), Western Europe (83), East Asia (16), Central Asia (6), Central America and Caribbean (4), and Australasia and Oceania (4).

In 2004, Sudan recorded the highest death rate from conflict and terrorism. It was at 42.91 per 100,000 residents of all ages and both sexes. It went down in 2005 to 6.05. In 2017, the death rate from conflict and terrorism in Sudan was 3.40.

There are economic consequences of terrorism as capital tends to follow to locations without a terrorist threat. Tourism is among the industries most affected if we view it from an economic standpoint. Terrorism also reduces net foreign investment in the economies. Terrorist threats also increase counter-terrorism expenditures, thus, drawing resources from the productive sectors of the country for use in security. These productive resources could have generated valuable goods and services. This is why terrorism can hurt the economic growth of a developing country.