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Legislation
Alien Tort Statute (ATS), 28 U.S.C. § 1350
Torture Victim Protection Act (TVPA), 28 U.S.C. § 1350 notes
Anti Terrorism Act (ATA), 18 U.S.C. § 2333
Foreign Sovereign Immunity (FSIA) Terrorism Exception, 28 U.S.C. § 1605A
Israeli Causes-of-Action in U.S. Courts
Alien Tort Statute (ATS), 28 U.S.C. § 1350
The Alien Tort Statute (ATS), which is also commonly known as the Alien Tort Claims Act (ATCA), was originally enacted by Congress as part of the Judiciary Act of 1789. The ATS states:
The district courts shall have 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.
The ATS was rarely applied by U.S. courts until the 1970s when a few creative lawyers at the Center for Constitutional Rights (CCR) decided to utilize it against a former Paraguayan police officer who was living in New York City that they discovered had tortured and killed an innocent Paraguayan citizen. The lawyers argued on behalf of the family of the murder victim that torture was a violation of the law of nations, i.e., international law, and that the U.S. federal courts had jurisdiction over the former police officer’s acts of torture that occurred in Paraguay. In a landmark decision, the U.S. Court of Appeals for the Second Circuit in New York upheld this legal theory and ruled that U.S. federal courts had jurisdiction over violations of international law that were committed abroad against aliens. See Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980).
As a result of the Filártiga decision, numerous other cases involving novel violations of international law have been filed in federal courts, including, for example, international environmental and workers’ rights claims. This led to criticism by some federal judges that they were being flooded with cases that did not involve U.S. citizens and which had no apparent relationship to the United States. In Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) the U.S. Supreme Court decided that it needed to limit the jurisdictional scope of the ATS, and it ruled that only international legal claims that are clearly accepted by the international legal community can be filed in federal court pursuant to the ATS. As examples of such well established international legal claims, the Supreme Court noted violations of safe conduct, infringement of the rights of ambassadors, and piracy.
The Supreme Court’s decision to limit the applicability of the ATS to clearly accepted violations of international law led to the immediate question of whether acts of terrorism after 9/11were sufficiently condemned by the international community so as to meet the requirements set forth in the Sosa decision. In Almog v. Arab Bank, PLC, 471 F. Supp. 2d 257 (E.D.N.Y. 2007) a federal court in New York ruled that acts of terrorism and terrorism financing were sufficient to meet the Supreme Court’s requirements and that terrorism was now a clear violation of international law such that Israeli victims of Palestinian terrorism were justified in filing a lawsuit under the ATS against anyone who helped finance terrorism.
Torture Victim Protection Act (TVPA), 28 U.S.C. § 1350 notes
In 1991 Congress enacted the TVPA to show its support for the decision in Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980) and to grant non-American citizens the explicit right to sue in federal courts for acts of torture. The TVPA supplemented the ATS by providing clear statutory guidelines for claims involving either torture or extrajudicial killings and the new law also granted American citizens the right to sue for acts of torture that occurred outside of the United States. Because Congress granted American citizens the right to sue for acts of torture, the family of a murdered Palestinian American was able to sue the Palestinian Authority for allowing PA police officers to engage in acts of torture and extrajudicial killing.
Anti Terrorism Act (ATA), 18 U.S.C. § 2333
The ATA was passed by Congress in the early 1990s as a result of the legal difficulties experienced by the family of Leon Klinghoffer, a U.S. citizen, who was murdered abroad the Italian Achille Lauro cruise ship by PLO terrorists. The Klinghoffer family had attempted to sue the PLO in federal court for terrorism, but there was no law that explicitly permitted federal courts to assert civil jurisdiction over acts of murder and terrorism that occurred outside the United States. Only after the lawyers for the Klinghoffer family asserted federal maritime jurisdiction was the case permitted to proceed. See Klinghoffer v. S.N.C. Achille Lauro, 937 F.2d 44 (2d Cir.1991).
To prevent the type of jurisdictional problems that the Klinghoffer family faced Congress decided to provide federal courts with an explicit grant of jurisdiction over international terrorism. Congress chose to model this new antiterrorism law after the civil liability provisions in the federal Racketeer Influenced and Corrupt Organizations (RICO) Act that had been used successfully by victims of the mafia to sue for damages. See 18 U.S.C. § 1964. As currently enacted, the ATA states:
(a) Action and Jurisdiction.— Any national of the United States injured in his or her person, property, or business by reason of an act of international terrorism, or his or her estate, survivors, or heirs, may sue therefor in any appropriate district court of the United States and shall recover threefold the damages he or she sustains and the cost of the suit, including attorney’s fees.
In summary, the ATA grants U.S. citizens the right to sue anyone responsible for causing an act of international terrorism and to recover triple damages plus attorney’s fees. Moreover, because the legislative history of the ATA stated that Congress intended liability to be imposed “at any point along the causal chain of terrorism,” courts are permitted to interpret the ATA as authorizing civil liability against anyone who supports terrorist organizations.
The first terrorism case under the ATA led to a successful judgment for $116 million against the PLO and Palestinian Authority on behalf of the family of an American citizen who was murdered by terrorists in Israel. See Ungar v. Palestine Liberation Organization, 402 F.3d 274 (1st Cir. 2005). Numerous other ATA cases have been subsequently won including, for example, Boim v. Quranic Literacy Institute and Holy Land Foundation For Relief and Development, 291 F.3d 1000 (7th Cir. 2002) where the American family of a murdered teenager sued Islamic charities in Chicago that had provided financial support to Hamas. Additionally, several ATA cases have sought to hold banks civilly liable for violating the U.S. criminal law provisions that prohibit financial transactions with terrorists. See, e.g., Linde v. Arab Bank PLC, 384 F. Supp. 2d 571 (E.D.N.Y. 2005); Weiss v. National Westminster Bank PLC, 453 F. Supp. 2d 609 (E.D.N.Y. 2006); and Strauss v. Credit Lyonnais, S.A., 2006 WL 2862704 (E.D.N.Y. Oct. 5, 2006); see also 18 U.S.C. §§ 2339A, 2339B, & 2339C (prohibiting the provision of support to terrorists).
Foreign Sovereign Immunities Act (FSIA) Terrorism Exception, 28 U.S.C. § 1605A
In 1976 Congress passed the Foreign Sovereign Immunities Act (FSIA) to permit lawsuits against foreign states under limited circumstances. The U.S. Supreme Court ruled that unless an exception was specified in the FSIA it was impossible to sue a foreign state in federal court. See Argentine Republic v. Amerada Hess Shipping Corporation, 488 U.S. 428 (1989). Consequently, American victims of international terrorism had no way to sue state sponsors of terrorism that supported the terrorist organizations that were responsible for causing their injuries.
In 1996, as part of the Anti-Terrorism and Effective Death Penalty Act, Congress decided to pass a terrorism exception to the FSIA that would grant American citizens the right to sue the limited number of foreign states that the U.S. State Department designated as “State Sponsors of Terrorism.” In addition, to supplement this new exception, in 1997 Congress passed a specific cause of action against the officials, employees, and agents of State Sponsors of Terrorism that was codified as 28 U.S.C. § 1605 note and became known as the “Flatow Amendment.” This provision, among other things, granted plaintiffs the right to obtain punitive damages.
As a result of these new laws, the families of victims of State Sponsored Terrorism were able to obtain numerous multimillion dollar judgments against countries such as Iran and Libya. See, e.g., Flatow v. Islamic Republic of Iran, 999 F. Supp. 1 (D.D.C. 1998) (awarding compensatory and punitive damages against Iran to the family of Alisa Flatow, a college student killed in an Islamic Jihad bombing in Gaza).
Despite the successful application of the FSIA terrorism exception, the federal appeals court in Washington D.C., where most such cases were usually brought because of federal venue rules, began to limit the power of the FSIA terrorism exception. For example, the appeals court ruled that the terrorism exception did not actually provide a cause-of-action against State Sponsors of Terrorism. Instead, the exception that was then codified as 28 U.S.C. § 1605(a)(7) was held to be only a waiver of immunity and some other source of law was required to bring a claim against a foreign state. See Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024 (D.C. Cir. 2004). Consequently, after the decision in Cicippio-Puleo plaintiffs were forced to inconveniently apply state law claims like wrongful death and battery for acts of terrorism. In addition, the appeals court in Roeder v. Islamic Republic of Iran, 333 F.3d 228 (D.C. Cir. 2003) held that the Flatow Amendment, including its punitive damages provision, was inapplicable to the sovereign entities of foreign states.
To correct these problems, in 2008 Congress repealed the language in 28 U.S.C. § 1605(a)(7) and enacted a comprehensive terrorism exception to the FSIA as part of the National Defense Authorization Act for Fiscal Year 2008. The new law codified as 28 U.S.C. § 1605A creates an explicit federal cause of action against State Sponsors of Terrorism so that plaintiffs no longer needed to allege state law claims, and it also explicitly grants plaintiffs the right to punitive damages against foreign states. In short, the new terrorism exception to the FSIA has provided much needed clarification to U.S. federal law and greatly expanded the rights of victims of State Sponsored Terrorism.
Israeli Causes-of-Action in U.S. Courts
In addition to the above American laws, victims of terrorism have also been able to apply standard Israeli causes of action against those who support terrorism. For instance, in Licci v. American Express Bank and Zahavi v. Bank of China victims of terrorism in Israel asserted Israeli causes of action in American courts for negligence, breach of statutory obligation, and vicarious liability. This was possible because under traditional American choice-of-law theories, a court can apply the law where the harm occurred and because the harm in these cases occurred in Israel the court can apply Israeli law.
Causes of action in tort in Israeli law are codified in the Civil Wrongs Ordinance (New Version) - 1968, (hereinafter “CWO”). The CWO provides that any person injured or harmed by the civil wrongs enumerated in the CWO is entitled to relief from the person liable or responsible for the wrong.
CWO § 35 creates a civil wrong of Negligence.
CWO § 35 provides that a person is liable for the civil wrong of Negligence when he commits an act which a reasonable and prudent person would not have committed under the same circumstances; or refrains from committing an act which a reasonable and prudent person would have committed under the same circumstances; or, in the performance of his occupation, does not use the skill or exercise the degree of caution which a reasonable person qualified to act in that occupation would have used or exercised under the same circumstances, and thereby causes damage to another person toward whom, under those circumstances he is obligated not to act as he did.
CWO § 36 provides that the obligation stated in the last sentence of § 35 is toward all persons, to the extent that a reasonable person would have under the same circumstances foreseen that, in the ordinary course of events, they were liable to be injured by the act or omission. Under binding precedent of the Israeli Supreme Court, the tort of Negligence also includes intentional and/or reckless conduct.
CWO § 63 creates a civil wrong of Breach of Statutory Duty defined as the failure to comply with an obligation imposed under any legal statute, if the legal statute is intended for the benefit or protection of another person, and if the breach of the statute caused that person damage of the kind or nature intended to be prevent by the statute.
CWO § 63(b) provides that for the purpose of CWO § 63, a statute is deemed to have been enacted for the benefit or protection of a specific person, if it is intended for the benefit or protection of that person, or for the benefit or protection of persons in general, or of persons of a category or definition to which that specific person belongs.
CWO § 12 recognizes vicarious liability principles. CWO § 12 provides that a person who participates in, assists, advises or solicits an act or omission, committed or about to be committed by another person, or who orders, authorizes, or ratifies such an act or omission, is liable for such act or omission.
