, Volume 33, Issue 2, pp 91-109

Bankrupting Terrorism: The Role of US Anti-terrorism Litigation in the Prevention of Terrorism and Other Hybrid Threats: A Legal Assessment and Outlook

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Global terrorist networks are dependent on receiving financial support from a variety of sources, including individuals, charities and corporations. Also known as terrorist financing, the potential of terrorism finance to resemble a global threat has been recognised and also its closeness to other international crimes such as money laundering and organized crime. As a result, possible responses have to constitute co-ordinated, multi-lateral and multi faceted actions under the umbrella of a wide range of international stakeholders such as the United Nations Security Council and the Financial Action Task Force. Combating terrorism requires a ‘holistic’ approach which allows for a mix of possible responses. Besides “kinetic” security operations (such as targeted killings) and the adoption of criminal prosecution measures another possible response could be the use of US styled transnational civil litigation by victims of terrorism against both, terrorist groups and their sponsors. Corporations, both profit and non profit, such as banks and other legal entities, as well as individuals, are often complicit in international terrorism in a role of aiders and abettors by providing financial assistance to the perpetrators (cf. UN Al-Qaida Sanctions List: The List established and maintained by the 1267 Committee with respect to individuals, groups, undertakings and other entities associated with Al-Qaida). Such collusion in acts of terrorism gains additional importance against the background of so called “Hybrid Threats”, NATO’s new concept of identifying and countering new threats arising from multi-level threat scenarios. This article discusses the potential impact of US terrorism lawsuits for the global fight against terrorism.

This article was written while Sascha-Dominik taught international law at the School of Law, University of Portsmouth. The topic has been presented to audiences at the universities of Stellenbosch and Cape Town, South Africa as well as at the School of Advanced Studies, London, and the University of Surrey, UK. The author would like to thank Mrs. Sasha-Lee Afrika, LL.B, LLM, PhD—candidate Stellenbosch University for her help and assistance. Thanks and gratitude go to General A.P.V. Rogers whose insightful comments brought structure to my manuscript.
NATO describes these as Hybrid threats are those posed by adversaries, with the ability to simultaneously employ conventional and non-conventional means adaptively in pursuit of their objectives—NATO has identified this threat and established a concept framework (MCCHT) which aims at identifying a wider comprehensive multi stakeholder response, see NATO CHT Experiment at http://www.act.nato.int/multimedia/archive/42-news-stories/618-successful-countering-hybrid-threats-experiment-in-estonia. The author took part in these experiments in May and November 2011as a NATO Rule of Law Subject Matter Expert (SME).