   Availability of the Judgment Fund for Settlements
                 with Foreign Countries

If the United States enters into appropriate settlement agreements with foreign countries
    whose nationals were victims of the 1988 Iran Air incident, the Attorney General would have
    the authority to certify such settlements for payment from the Judgment Fund, subject to
    approval by the Comptroller General. The Comptroller General’s role is ministerial.

                                                                                          July 10, 1989

                   M e m o r a n d u m O p i n i o n f o r t h e L e g a l A d v is e r
                                     D e pa r tm e n t o f State


   This is in response to your letter o f June 12, 1989, to Stuart E. Schiffer,
Acting Assistant Attorney General for the Civil Division, seeking advice
regarding the availability o f the Judgment Fund for settlements with for­
eign countries whose nationals were victims o f the 1988 Iran Air Incident.
Based on the relevant statutes and this Department’s experience with
payment o f settlements from the Judgment Fund, we have concluded
that, under the circumstances described below, the Judgment Fund could
be used for this purpose. The Civil Division concurs in this view.
   Your letter explains that on July 3, 1988, the USS Vincennes, while
involved in actions against hostile Iranian vessels in the Persian Gulf,
shot down Iran Air Flight 655. Nationals o f several countries, including
Iran, Italy, Yugoslavia, the United Arab Emirates, India and Pakistan were
aboard the flight; all aboard were killed. On May 17, 1989, the Gov­
ernment o f Iran commenced suit against the United States in the
International Court o f Justice ( “ICJ”), alleging that the Vincennes’ actions
violated the 1944 Chicago Convention on International Civil Aviation and
the 1971 Montreal Convention for the Suppression o f Unlawful Acts
Against the Safety o f Civil Aviation. Iran has demanded compensation for
the families o f its nationals who were killed. The other governments
whose nationals were aboard have also requested compensation but have
not yet commenced an action in the ICJ.
   The President has announced that, for humanitarian reasons, the
United States is prepared to offer ex gratia payments to the families o f
the victims.1 You have asked our advice regarding the availability o f the

  1 The ex gratia payments would not represent a complete disposition o f all possible claims arising out
of the incident For example, we understand that Iran may present a claim relating to the loss of the plane

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Judgment Fund to make such payments, as settlement o f pending or
imminent litigation. We assume that, in order to make such settlements,
the United States would enter into appropriate agreements with the
affected countries, disposing o f pending and threatened suits before the
ICJ. We also assume that it is likely that the countries other than Iran will
shortly seek redress through the ICJ.
   The Judgment Fund Appropriation, 31 U.S.C. § 1304(a), appropriates
funds necessary to pay “final judgments, awards [and] compromise set­
tlements” when “(1) payment is not otherwise provided for; (2) payment
is certified by the Comptroller General; and (3) the judgment, award, or
settlement is payable — (A ) under section 2414 ... o f title 28.” Section
2414 o f title 28 provides that:

          Payment o f final judgments rendered by a State or for­
       eign court or tribunal against the United States ... shall be
       made on settlements by the General Accounting Office
       after certification by the Attorney General that it is in the
       interest o f the United States to pay the same....

          ... [C]ompromise settlements o f claims referred to the
       Attorney General for defense o f imminent litigation or suits
       against the United States ... made by the Attorney General
       ... shall be settled and paid in a manner similar to judg­
       ments in like causes and appropriations or funds available
       for the payment of such judgments are hereby made avail­
       able for the payment o f such compromise settlements.

Thus, the Attorney General can settle actual or imminent litigation if a
judgment in that litigation would be payable.
   As w e noted above, Iran has initiated litigation against the United
States before the ICJ. We assume that, because the other countries
involved are likely to commence such proceedings soon, suits by them
can be regarded as imminent. Under these circumstances, the availabili­
ty o f the Judgment Fund to pay settlements o f these ICJ proceedings
depends on whether (1) the ICJ is a “foreign court or tribunal” within the
meaning o f 28 U.S.C. § 2414; (2 ) payment is provided for other than by 31
U.S.C. § 1304; and (3 ) the Attorney General could determine that the set­
tlements are in the interests o f the United States.
   We believe that the ICJ is a “foreign court or tribunal” for purposes of
28 U.S.C. § 2414. While this question is not free from doubt, it is clear that
the ICJ is authorized to decide cases between States, and, as your letter
points out, the United States has accepted its jurisdiction in numerous
treaties.2 Given its permanent existence and judicial function, the ICJ
appears to be a court or tribunal in the ordinary sense o f those words. It
is also foreign, not American.3

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  As to the second question, we are aware o f no statute other than the
Judgment Fund Appropriation that authorizes payment o f ICJ judgments
against the United States. In particular, you have advised us that the
Department o f State foreign claims statute, 22 U.S.C. § 2669(f), covers
only settlements arising out o f activities o f the Department o f State, not
military operations. Similarly, the Department o f Defense claims-settle-
ment provisions, 10 U.S.C. §§ 2733(a), 2734(a), do not apply to claims
arising out o f combat.4
  Finally, it is clear that the Attorney General could readily find that pay­
ment is in the interests o f the United States, because the President
already has determined that prompt compensation to the victims would
serve our foreign policy goals.5
   In sum, if the United States enters into appropriate settlement agree­
ments with the affected governments, the Attorney General would have
the authority to certify those settlements for payment from the Judgment
Fund, subject to approval by the Comptroller General.6

                                                                   WILLIAM P. BARR
                                                            Assistant Attorney General
                                                              Office o f Legal Counsel




  2This O ffice has previously opined that the Iran-Umted States Claims Tribunal “falls within the reach
o f foreign tribunals as that term appears m section 2414.” Memorandum fo r D Lowell Jensen, Acting
Deputy Attorney General, from Larry L. Simms, Deputy Assistant Attorney General, O ffice o f Legal
Counsel (Feb. 24, 1984)
  3 We recognize that judgments o f the ICJ are enforceable in United States courts only as a matter o f
comity, and that the United States is not necessarily bound under international law by all judgments
issued against it by the ICJ. We do not think that this keeps the ICJ from qualifying as a court or tribunal.
  4The Secretary o f the Navy has authority to enter into pre-litigation settlements o f “admiralty claim s”
o f up to $1,000,000 for “damage caused by a vessel in the naval service.” 10 U S C § 7622(a) As w e read
the statute, however, the category o f admiralty claims includes only suits within the admiralty jurisdic­
tion o f United States courts, and therefore does not extend to suits before the ICJ
  5The Department believes that consideration should be given, in setting overall policy on this question,
to consider obtaining releases from the families o f victims, as w ell as the countries involved. While only
States may bring actions before the ICJ, it is possible that an individual claimant would be able to sue in
United States court under the Public Vessels Act, 46 U S.C. §§ 781-790, which provides an action against
the government fo r wrongs committed by public vessels, in circumstances where a private person would
be liable; this action, however, is available to foreign nationals only insofar as the laws o f their country
permit recovery by United States nationals under similar circumstances Moreover, a foreign national
might be able to bring an action in foreign court, notwithstanding his country’s waiver o f its claim on his
behalf. The extent to which individual waivers should be required in order to foreclose the possibility o f
such litigation is a question o f policy concerning the interests o f the United States.
 6 The Judgment Fund Appropriation states that payment will be made only when authorized by the
Com ptroller General It is our view that the Comptroller General’s role in this process is ministerial, so
that his certification simply follow s from satisfaction o f the other requirements and completion o f the
necessary paperwork. Indeed, w e believe that were the requirement o f certification to be other than a
nurustenal function it would raise senous questions under the Supreme Court’s holding in Bowsher v
Synar, 478 U S 714 (1986) (Congress cannot constitutionally assign to the Comptroller General, an arm
o f Congress, the duty o f executing the laws).


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