BY: Taylor Hutchens, Guest Contributor January 14, 2013
Editor’s Note: The Campbell Law Observer has partnered with Judge Paul C. Ridgeway, Resident Superior Court Judge of the 10th Judicial District, to provide students from his International Business Litigation and Arbitration seminar the opportunity to have their research papers published with the CLO. The following article is one of many guest contributions from Campbell Law students to be published over the next two weeks.
The battle against international terrorism is now being fought in American courtrooms. Recently, many individuals who have been affected by international terrorism have begun to fight such groups through civil lawsuits. The victims of terrorist attacks and their families have brought these civil lawsuits against the terrorist groups, as well as individuals, organizations, and nations that support and fund such groups. Pursuing lawsuits against terrorist organizations and the entities that fund them can lead to greater international security and have a substantial impact on international business.
Congress has paved the way for private citizens to aid in the fight against international terrorism.
Victims of international terrorism have utilized numerous federal statutes to obtain relief from terrorist organizations. First, the Antiterrorism Act (“ATA”) allows United States citizens who have been impacted by acts of international terrorism to sue such organizations in the United States and recover threefold damages.
Additionally, the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) waives sovereign immunity under the Foreign Sovereign Immunities Act in cases that seek money damages for acts of terrorism. Furthermore, the Flatow Amendment to the AEDPA creates a cause of action against the officials, employees, and agents of state sponsors of terrorism for money damages, which “may include economic damages, solatium, pain and suffering, and punitive damages.”
Other statutes, such as the Alien Tort Claim Act (“ATCA”) and the Torture Victim Protection Act (“TVPA”) have provided victims with other options for pursuing their battles against international terrorism. The ATCA gives United States District Courts “original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” Originally, the ATCA only provided aliens, not United States citizens, with the ability to bring a cause of action. It largely has been used by foreign plaintiffs, therefore, in humanitarian actions for international human rights violations. The TVPA, however, provides a cause of action for aliens as well as United States citizens injured by acts of torture or illegal killing committed under color of foreign law. Recently, Congress passed the Justice for Victims of Terrorism Act of 2007 (“JVTA”), which amended the Flatow Amendment by allowing victims of state-sponsored terrorism to sue countries that support and promote terrorism.
Common-law tort claims can also be used in conjunction with the above federal statutes to maximize relief for those affected by international terrorism. Examples of such claims include negligent and intentional infliction of emotional distress, battery, assault, wrongful death, survival, false imprisonment, loss of consortium, and solatium. Combining these types of claims with federal statutes provides plaintiffs with a variety of options to use against international terrorist organizations.
By enacting the above federal statutes, Congress has paved the way for private citizens to aid in the fight against international terrorism. Victims of terrorism now can craft complaints that will allow them to receive the amount of relief they deserve, while exacting retribution from the terrorist groups that have caused their suffering.
Civil lawsuits against terrorist organizations can provide victims and their families with avenues to justice and relief.
A major case that was brought under the ATA is Boim v. Quranic Literacy Institute and Holy Land Foundation for Relief and Development. In Boim, the Seventh Circuit Court of Appeals was asked to consider the validity of a claim brought under the ATA. While studying in Israel, David Boim was struck by bullets fired from a passing car as he waited with other students at a bus stop. He was pronounced dead within an hour of the shooting. The two attackers in the car were members of the military wing of Hamas, a designated foreign terrorist organization with a global presence that receives funds and support from organizers throughout the world.
David Boim’s parents brought a civil action against the Quranic Literacy Institute (“QLI”), the Holy Land Foundation for Relief and Development (“HLF”), and several other organizations and individuals pursuant to the ATA. The Boims alleged in their complaint that the QLI and the HLF were some of the main fronts for Hamas in the United States. They further alleged that money raised by these corporations was transferred to Hamas terrorists and was used to pay for the vehicle, machine guns, and ammunition used to kill their son. The Boims sought treble damages and an injunction ordering the QLI ad HLF to stop raising funds for Hamas.7 The Seventh Circuit Court of Appeals upheld the ruling of the District Court and allowed the Boims to continue with their suit against the organizations funding Hamas.
An example illustrating the utilization of the AEDPA can be seen in Flatow v. Islamic Republic of Iran. The Flatow family brought suit against Iran after Alisa Flatow, a college student from New Jersey, was murdered while studying abroad in Israel. She was killed when a suicide bomber drove a van armed with explosives into a bus. The Shaqaqi faction of Palestine Islamic Jihad, a terrorist organization funded by Iran, claimed responsibility for the attack. The Flatow family was awarded a judgment against Iran for $27 million in compensatory damages and $225 million in punitive damages. The Judge held that, “Sponsorship of a terrorist group which causes the personal injury or death of a United States national alone is sufficient to invoke jurisdiction.”
Burnett v. Al Baraka Investment and Development Corporation exemplifies the usage of a combination of federal statutes to punish an international terrorist organization. In this case, more than 2,000 victims and their families brought a civil action against nearly 200 persons and entities that funded Al Qaeda for their attacks on the World Trade Center. The plaintiffs are seeking $100 trillion in damages against all of the organizations that had a hand in orchestrating the attacks. Among other statutes, the plaintiffs brought their suit under the ATA, the TVPA, the ATCA, and the federal common-law tort claims of wrongful death, negligence, survival, negligent and intentional infliction of emotional distress, conspiracy, and aiding and abetting.
As the above cases demonstrate, civil lawsuits against terrorist organizations can provide victims and their families with avenues to justice and relief. As civil lawsuits against terrorist organizations are increasing, however, so are the difficulties plaintiffs are facing in collecting their awarded judgments.
Plaintiffs have faced many obstacles in their attempts to enforce judgments against international terrorist organizations.
In the course of their private battles, plaintiffs have faced many obstacles in their attempts to enforce judgments against international terrorist organizations. First, foreign courts have made it difficult for plaintiffs to enforce their judgments against international terrorist organizations and their supporters. Generally, foreign courts will enforce judgments rendered by United States courts on the basis of reciprocity and comity. Foreign courts have shown an unwillingness to enforce judgments of United States courts, however, “if they view the amount of money awarded to be excessive, if there are punitive or treble damages, or if they think the court extended its net of jurisdiction too widely.”8 In addition, the executive branch has made it difficult for plaintiffs to collect their judgments. More specifically, the executive branch is reluctant to encourage these civil lawsuits because they threaten its control over foreign policy and its own battle against terrorism.9
Congress has responded to this opposition by enacting legislation that will make it easier for plaintiffs to overcome these obstacles. One such piece of legislation is the Terrorism Risk Insurance Act of 2002 (“TRIA”). Under the TRIA, blocked assets of a terrorist party and any agency or instrumentality of that terrorist party are subject to execution or attachment to satisfy a judgment for any claim based on an act of terrorism. Additionally, the JVTA has made it easier for victims to collect their judgments. More specifically, the JVTA allows victims to access the assets of countries that support terrorism that are hidden in the United States by proving a connection between the country and the assets.
Civil lawsuits against terrorist organizations and their supporters have a considerable impact on international business.
Fighting terrorism through civil lawsuits will have a large impact on the economy. In addition to the devastating loss of lives, terrorist attacks result in considerable financial costs. For instance, Al Qaeda spent approximately half a million dollars to carry out the attacks on the World Trade Center and the Pentagon. The attacks have cost the United States nearly $3.3 trillion. By crippling international terrorist organizations through civil lawsuits, less money will be spent on orchestrating these tragic attacks and more money can be used to stimulate the world economy legitimately. Civil lawsuits against terrorist organizations and their supporters, therefore, have a considerable impact on international business.
In addition to private citizens executing substantial judgments against international terrorist organizations, the United States and the international community have begun to launch financial warfare against these organizations. The International Emergency Economic Powers Act (“IEEPA”) gives the President “wide discretion in controlling international financial transactions.” Presidents have used this power “to seize assets of terrorist groups and cut off their funding.”
Additionally, the international community has begun to encourage financial warfare against terrorism. The United Nations, an international organization with 193 member states, has long been committed to maintaining international peace and avoiding physical warfare. As a reflection of this commitment, the United Nations Security Council has begun to favor freezing terrorist assets as an alternative to military action. For example, following the September 11 terrorist attacks, the Security Council issued Resolution 1373 on September 28, 2001. This Resolution requires member states to freeze assets directly or indirectly controlled by the Taliban. Pursuant to the Resolution, member states are also required to freeze the assets of “persons who commit, or attempt to commit, terrorist acts.”
The United States and the international community should honor their commitments to fight terrorism financially by facilitating the collection of judgments awarded to private citizens by United States courts.
Financial weapons such as the IEEPA and Resolution 1373 can be utilized to disable terrorist organizations when combined with civil lawsuits instigated by victims. Furthermore, the United States and the international community should honor their commitments to financially fight terrorism by facilitating the collection of judgments awarded to private citizens by United States courts. Paving the way for the victims of terrorism to sue such organizations and collect their awarded judgments successfully will provide them with some sense of justice and allow the international community to weaken terrorist organizations in courtrooms, instead of on battlefields.
Taylor Hutchens is a 2L student at Campbell Law School. Taylor may be reached via email at firstname.lastname@example.org.