On November 24, 2000, just three months after their first meeting, Arnold filed Bouzari’s lawsuit with the Ontario Court of Justice. It consisted of a statement of claim for $3,250,000 in return of monies, plus $5 million in punitive damages on behalf of Bouzari, his wife, Fereshteh Yousefi, and their two (now adult) children. The Islamic Republic of Iran was served the suit via Gaetan Lavertu, Canada’s Deputy Minister of Foreign Affairs, who forwarded the documents via a Canadian official in Iran.

Getting to this point had not been easy. Inevitably, after approaching Arnold, Bouzari couldn’t help having second thoughts. Fereshteh was against the lawsuit: they had made it to Canada, they should sit tight and count their blessings. The Iranian response, Bouzari believed, would be “a campaign in the newspapers to discredit me, and then I would be killed.” He had no illusion that he could escape an assassin even in a suburb of Toronto. Struggling with his dilemma, he called Mark Arnold a number of times, asking, “Can we just stop this?” Arnold told him they could, at any time, adding, “But you have to overcome this.” In the end, Bouzari kept coming back to one thought: he had promised himself when he got out of Iran that “if I can tell my story, I will devote my entire life that this kind of thing never happens to anyone.”

In May, 2002, Madam Justice Katherine Swinton, after listening to their arguments, pointed out what might have seemed obvious: it was a long shot for an Ontario court to assume jurisdiction over an action that had taken place in Iran and had been done to an Iranian citizen. To no one’s great surprise, she dismissed the case. By this time, Arnold had a co-counsel, David Matas, a Winnipeg-based refugee lawyer who is well-known for his work in international law and human rights. They recommended an appeal; Bouzari agreed. Arnold and Matas presented their arguments to the Court of Appeal for Ontario this past December.

The case created something of a legal conundrum: the lawsuit was filed against the state of Iran. Yet when they went to court, the lawyers facing Arnold, Matas, and Bouzari were Canadians, from the federal Department of Justice. The Islamic Republic of Iran had completely ignored them; paradoxically, the government of Canada was intervening. The short explanation is that presently it is almost impossible to sue a foreign state, here or anywhere else. Globalization notwithstanding, governments operate under an almost seamless umbrella of immunity from the legal actions of other countries and, equally important, from private citizens in other countries’ courts. As a matter of custom, this dates back hundreds of years to monarchs helping each other fend off the rabble. More recently, the principle of state immunity, along with its close relative, diplomatic immunity, has become a foundation of international statecraft, a small price to pay (in the opinions of foreign offices) for good relations. To understand how this works in practice, one need only note the impunity with which cars with diplomatic licence plates cruise around national capitals, parking wherever they please.

The state immunity principle is that sovereign states interact on an international plane, and if one of them wants to complain about another, they should do so at an international forum, not through lawsuits in domestic courts. Moreover, a number of countries, including Canada, have enacted legislation further delineating this. Canada’s State Immunity Act, which was passed in 1982, states in part: “Except as provided by this Act, a foreign state is immune from the jurisdiction of any court in Canada.” And: “In any proceedings before a court, the court shall give effect to the immunity conferred on a foreign state by subsection (1) notwithstanding that the state has failed to take any step in the proceedings.” The Justice Department lawyer who handled Bouzari’s case, Peter Southey, told me that the government of Canada had no choice but to step in because, “in as much as Canada is opposed to torture, the rule of international law prevents us from judging the actions of foreign states in their own territories.” Mark Arnold has argued that defending torturers is no better than being one, but it does no good. Southey, further, had to defend the constitutionality of the Act; Arnold and Matas, among other things, were challenging the State Immunity Act under section 7 of the Charter of Rights and Freedoms, a section that deals with the right to protection of personal safety.

Yet, though it remains a functioning principle, broad state immunity is, little by little, coming under assault. Canada’s State Immunity Act itself chips away at it. In the late 1960s, a Canadian architect, stiffed by the Congo for his design fee for their Expo pavilion, had filed a lawsuit which he took all the way to the Supreme Court. He lost, but his case was part of what ultimately led Canada to create a small but important exception in its statute: immunity could be waived for commercial actions. Other countries, such as Britain and the United States, while still supporting the principle of immunity, provide their own exceptions. Successful actions, however, have proven rare.

Still, all movements toward international law render the principle of immunity more vulnerable. A few years ago General Augusto Pinochet, the former dictator of Chile, discovered the fragility of his immunity when he was detained in Britain at the request of Spain on charges of crimes against humanity; only a combination of British uncertainties about the force of emerging international law and, one might argue, Pinochet’s precarious health, prevented him from being extradited. Slobodan Milosevic, the former Yugoslav leader now on trial in The Hague, was not so fortunate. Concepts of human rights and democracy, as they expand the rights of citizens, correspondingly shrink the immunity — and impunity — of states, governments, and governors. Even if this is not always the case in fact, it certainly is so in public opinion, as was emphasized dramatically for both Canadian and Russian governments three years ago when a Russian diplomat, Andrei Knyazev, driving drunk, struck and killed a pedestrian, Catherine MacLean, in Ottawa. While diplomats on both sides scrambled, the magnitude of public outrage expressed in no uncertain terms what most people thought of state immunity.

In his lawsuit, quixotic as it might seem, Houshang Bouzari has taken a run at this seemingly impenetrable wall of state immunity. Has his run damaged it? Will a second run go through? Will more lawsuits now being filed become a tide that can’t be turned back? Legally, constitutionally, and in the context of evolving morals and ethics in a globalizing world, this case and others open a host of interesting and necessary questions for jurists and politicians alike.

On February 7, Bouzari flew to London to meet William Sampson, the Canadian who had been imprisoned and tortured in Saudi Arabia last year, and whose case has had much more public attention than his own. Bouzari wanted to talk about his experiences before the Canadian courts and encourage Sampson in a lawsuit of his own. At minimum, Bouzari believed they ought to support one another and make common cause. Sampson replied that he was going to try a lawsuit (which was filed a couple of weeks later), but would do so in the U.K. along with the British co-detainees who had shared his ordeal in Saudi Arabia. Part of their consideration, he said, was that if they lost they would be in a position to appeal their case to the European Court of Human Rights.

Though they tend to be lumped together, the cases of Bouzari, Sampson, and Maher Arar — whose experience of being sent to Syria by the U.S. government almost explicitly, it seemed, to be tortured has provoked a Canadian government inquiry — have as much separating them as linking them together. Sampson was a Canadian citizen on a work visa in Saudi Arabia when he was arrested with several British nationals and charged for a local murder. Arar was a naturalized Canadian citizen of Syrian birth, detained by U.S. authorities at JFK airport in New York, accused of having Al Qaeda connections, and sent via Jordan to Syria. Houshang Bouzari, by contrast, moved to Canada and became a Canadian citizen years after being kidnapped and tortured in Iran.

What they do have in common, aside from the fact that they were all held, mistreated, and tortured in Middle Eastern countries, is the fact that they are each seeking redress for their suffering using the courts, Arar having now filed in the United States against Syria, Jordan, and the U.S. government. Following fast behind them are others: three Iranian sisters tortured in Tehran while they waited for their immigration visas to Canada have launched a lawsuit against Canada; Muayyed Nureddin, an Iraqi-Canadian tortured in Syria, is at the moment asking only for an inquiry, though a lawsuit may follow. These connections are compelling on their own, but what they may also do is inspire the many others who have experienced torture in distant lands prior to their arriving in Canada.

Ed Morgan, associate professor of international law at the University of Toronto, is watching the Bouzari lawsuit closely. “Bouzari’s case,” he told me in February, “is premised on the issue that if we remove immunity to criminal liability of sovereigns, as in [the case of] Pinochet, then we should remove their immunity from civil liability. It is the next logical step.” Ultimately, Morgan doesn’t consider Judge Swinton’s decision as negative at all because “it says, in effect, we’re not yet there but the implication is that it’s just a matter of time.”

It is legitimate to ask whether Bouzari and his lawyers are following the right strategy in bringing suit against a state. Some armchair quarterbacks say they would do better finding a way to have Canada deal with Iran on their behalf, state to state. Or they would have a better chance suing not the state, but the individuals in Iran who were responsible for the torture. Bouzari retorts that it would be impossible to identify his individual torturers: he was blindfolded; they were anonymous. Arnold adds that they would also be unable to force them to come to Canada. “It would be different,” he says, “if the torturers were in Ontario.”