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(Source picture: US Defense Dept./Wikipedia)

(Source picture: US Defense Dept./Wikipedia)

El-Shifa Pharmaceutical Industries Company and Salah El Din Ahmed Mohammed Idris v. The United States of America

Court United States Court of Federal Claims, United States
Case number 00-443L
Decision title Opinion
Decision date 14 March 2003
Parties
  • El-Shifa Pharmaceutical Industries Company
  • Salah El Din Ahmed Mohammed Idris
  • The United States of America
Other names
  • El-Shifa I
Categories Terrorism
Keywords Fifth Amendment, motion to dismiss, non-justiciable, political question doctrine, Terrorism
Links
Other countries involved
  • Sudan
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Summary

In August 1998, the US embassies in Kenya and Tanzania were bombed by terrorists loyal to Osama bin Laden. In retaliation, President Clinton ordered a missile strike on the El-Shifa pharmaceutical plant in Khartoum, Sudan, arguing that it was a base for terrorism. Later, it was proven that the plant had no ties to terrorists. Therefore, El-Shifa Pharmaceutical Industries brought complaints against the United States in the US Court of Federal Claims.

In March 2003, the US Court of Federal Claims dismissed the complaints as non-justiciable based on the ‘political question doctrine’ (which foresees that courts have no authority to hear or adjudge on matters that raise political, rather than legal, questions). Accordingly, the Court found that it did not have jurisdiction, even if the complaints raised issues under the Fifth Amendment to the US Constitution. Therefore, El-Shifa’s complaints were dismissed.

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Procedural history

The plaintiffs in El-Shifa Pharmaceutical Industries Company v. United States of America filed a number of complaints before the US Court of Federal Claims against the United States for damages incurred by a missile strike against the El-Shifa Pharmaceutical plant in Sudan (p. 4).

The United States Government moved to dismiss the case for lack of personal and subject matter jurisdiction and standing (pp. 6-7).

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Related developments

On 11 August 2004, the Federal Circuit Court of Appeals affirmed the lower court’s decision.

Another claim was filed seeking damages for negligence and trespass. On 29 November 2005, the District Court of Colombia granted the government’s motion to dismiss the claim based on lack of subject matter jurisdiction. The Court found that sovereign immunity barred the claims.

The plaintiff’s motion to alter the judgment regarding their equitable relief was later denied as well.

On 27 March 2009, the Court of Appeals held that “courts are not a forum for second-guessing the merits of foreign policy and national security decisions” (p. 8), and upheld the District Court’s decision.

On 3 August 2009, the Court of Appeals ordered that its previous judgment be vacated and the case be re-heard by the Court sitting en banc.

On 8 June 2010, the US Court of Appeal (sitting en banc) affirmed the decision of the District Court once again.

In January 2011, the US Supreme Court refused to reconsider the dismissal. See 'Court Won’t Reconsider Sudan Lawsuit Dismissal', CBS News, 18 January 2011.

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Legally relevant facts

In August 1998, the US embassies in Kenya and Tanzania were bombed by terrorists loyal to Osama bin Laden. In retaliation, President Clinton ordered a missile strike on the El-Shifa Pharmaceutical plant in Khartoum, Sudan. The attack was justified by the claim that the plant was a base for terrorism. US officials also claimed that the plant was used in the manufacture of chemical weapons. The plaintiffs denied the accusations.

It was later proved that the plant had no ties to bin Laden and that only medical products were manufactured at the plant. Having learnt that their initial justifications were false, officials in the Clinton Administration offered new explanations, claiming that the plant owners supported terrorism (pp. 2-4).

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Core legal questions

  • Can the Court grant the US’ motion to dismiss for lack of jurisdiction?

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Specific legal rules and provisions

  • Fifth Amendment to the US Constitution.
  • Section 2502 of Title 28 of the US Code.
  • Rule 12(b)(2) of the Rules of the US Court of Federal Claims (RCFC).

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Court's holding and analysis

The Court concluded that “[b]ecause we find that the U.S. Constitution’s Fifth Amendment “just compensation” clause does not extend to claims arising out of the destruction of a purported enemy war-making instrumentality through American military action, we GRANT the Defendant’s motion and dismiss the Complaint” (p. 2).

On the basis of the political question doctrine, the Court found that “[q]uestioning the authority for the action [to strike El-Shifa] admittedly lies outside the Fifth Amendment and thus this Court’s jurisdiction. In any context, even a tort action, the Plaintiffs face obstacles in a challenge to the exercise of discretionary authority, especially in a military operational context” (p. 26).

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Instruments cited

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Related cases

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Additional materials