Embassy Law Web Log   
Washington, DC, USA      

SOFA Waiver of Sovereign Immunity?

In the case of James R. Moriarty v. Hashemite Kingdom of Jordan on August 6, 2019, three U.S. Special Forces members were killed while entering a Jordanian air base on November 4, 2016; the Plaintiffs, the surviving family of the service members claim that the Defendant, a service member of the Jordanian Air Force committed an act of terrorism by wrongfully killing the service members, and that the Kingdom aided and abetted the terrorist attack. In the United States District Court for the District of Columbia, the Defendant entered a motion to dismiss, claiming that the court lacks jurisdiction due to Jordan's sovereign immunity.

To establish that defendant Jordan implicitly waived it’s sovereign immunity, the plaintiffs rely on the Status of Forces Agreement between the United States and Jordan; under SOFA, United States military personal are afforded the same status to that of technical and administrative staff of the U.S. Embassy. This is a reference to the Vienna Convention in which technical staff are members of the mission, see Vienna Convention on Diplomatic Relations, art. 1(b) and 1(c), 500 U.N.T.S. 95. Members of the mission are to be given due respect by the receiving state. The plaintiffs argue that the Kingdom did not give them due respect as it did not take all appropriate steps to prevent any attack on their person, freedom or dignity under the admonition of customary international law, Vienna Convention, art. 29.

The plaintiffs offered several arguments to prove Defendant Jordan waived its immunity from suit. However, the arguments failed to prove a waiver of immunity by virtue of SOFA. The court declared that although SOFA sets fourth rules of conduct, how service members are to be treated by the receiving state and defines the status of individuals within the foreign state, SOFA fails to show that violations of these rules result in waived immunity and that suit should be brought in the U.S. -- Thomas Nelson IV, legal assistant, Berliner Corcoran & Rowe LLP, Washington, DC.