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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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Abstract

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.

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Notes

  1. See Stephens (2008a) at 23–24.

  2. The term refers to the infamous attacks on the World Trade Centre and the Pentagon on September 11, 2001, by terrorists of the Al-Qaeda network, which cost the lives of some 3,000 people lost their lives. Cf. McGoldrick (2004) 9–11.

  3. See “Global Reach” for an overview of al-Qaeda attacks outside the theatres of war in Afghanistan and Iraq in The Economist, 7 May 2011, at 24.

  4. See Office of the United Nations High Commissioner for Human Rights (2008).

  5. Kinetic operations refer to combat operations with the purpose of “eliminating” terrorist cells and structures, lethal operations such as “targeted killing” falls within the wider ambit of that terminology, see Bachmann and Haeussler (2011) on the legality of such operations and Bergman (2011).

  6. Bachmann and Hauessler (n 6) on the legality of kinetic targeted killing operations and Bachmann and Galvin (2007) for a legal assessment of the present state of UK human rights.

  7. Term used by the Tel Aviv based Shurat HaDin Israel Law Center to describe terrorism litigation lawsuits, see http://www.israellawcenter.org/.

  8. BBC News UK, ‘Abu Qatada release from Long Lartin jail prompts debate’, http://www.bbc.co.uk/news/world-17012448 (last visited 12-11- 2011).

  9. BBC News UK, ‘Abu Qatada Timeline’, http://www.bbc.co.uk/news/uk-17769990 (last visited 12-04-2012).

  10. Terrorist Asset-Freezing etc. Act 2010, (c. 38), of 17.12.2010.

  11. See e.g. UN SC Res 1373 of 28.09.2001 and EU Council Regulation (EC) No 2580/2001 of 27.12.2001.

  12. See Ndiku Mutua and others v The Foreign and Commonwealth Office (2011) EWHC 1913 (QB); Bowcott (2011), retrievable at http://www.guardian.co.uk/world/2011/jul/21/mau-mau-torture-kenyans-compensation.

  13. Arab Bank I, 384 F.Supp. 2d 580.

  14. Boim v Quranic Literacy Inst., 291 F.3d 1000, 1001–1003 (7th Cir.2002), also referred to as Boim I which targeted organizations for their financial support of Hamas.

  15. Murphy (1999) at 6.

  16. The ‘Princeton principles on universal jurisdiction’ (2001) retrievable at http://www1.umn.edu/humarts.instree/princeton.html refer to this category of crimes as ‘serious crimes under international law’, Principle 2(1), and add to the four above-listed crimes piracy, slavery and torture. See further Ratner and Abrams (2001) 162 with additional sources.

  17. As codified in art 5(1) of the ICC Statute and arts 16–18 and 20 of the 1996 ILC’s draft code. Note that the crime of aggression, as the offence most recently codified under international criminal law, still remains an undefined concept.

  18. Cf. ‘Commentaries to the draft articles on responsibility of states for internationally wrongful acts’, Yearbook of the International Law Commission, 2001, vol. II, Part Two, at 285.

  19. Ibid. The draft articles of the ILC on responsibility of states for internationally wrongful acts do not recognise ‘any distinction between State “crimes” and “delict”’.

  20. The case of Kiobel v. Royal Dutch Petroleum, No. 06-4800-cv, 06-4876-cv, 2010 WL 3611392 (2d Cir. Sept. 17, 2010) has the potential to limit the scope of such litigation to individual perpetrators only and exclude lawsuits directed against corporate colluders and indirect actors. The US Supreme Court is hearing the case as of the time of writing of this article as Kiobel v Royal Dutch Petroleum, No. 10-1491 (argued 28 February 2012) (SCOTUS).

  21. Blumberg (2002). “In the modern global economy, the largest corporations conduct worldwide operations. They operate in the form of multinational corporate groups organized in “incredibly complex” multi-tiered corporate structures consisting of a dominant parent corporation, sub holding companies, and scores or hundreds of subservient subsidiaries scattered around the world. The 1999 World Investment Report estimated that there are almost 60,000 multinational corporate groups with more than 500,000 foreign subsidiaries and affiliates”.

  22. See e.g. O. De Schutter (2006), Ramasastry and Thompson (2006), retrievable at http://www.fafo.no/pub/rapp/536/536.pdf (last accessed at 28-09-2011) Appendix A, 29ff (last accessed at 28-09-2011).

  23. Cf. John Doe I v. Unocal Corp., 403 F.3d 708; for an overview see Stephens (n 2).

  24. Ibid and UN News “Corporate Law Firms Join UN-led Initiative on Business and Human Rights”, 28 January 2009 at http://www.un.org/apps/news/story.asp?NewsID=29693&Cr=business&Cr1=Human+rights.

  25. See e.g. guidelines on good corporate practice and corporate social responsibility as listed at the University of Minnesota’s Human Rights Library, retrievable at http://www1.umn.edu/humanrts/business/codes.html.

  26. U.N. Doc. E/CN.4/Sub.2/2003/12/Rev.2 (Aug. 26, 2003). See Martin-Ortega (2008).

  27. Ruggie in his initial 2006 Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, UN Doc.E/CN.4/2006/97.

  28. UN Doc A/HRC/17/31 of 21 March 2011; for the full text of the Guiding Principles, see UN Human Rights Council, Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, Ruggie (2011) Framework at http://www.ohchr.org/documents/issues/business/A.HRC.17.31.pdf (last visited Jul 12, 2011).

  29. See e.g. U.S. v. Friedrich Flick in VI Trials of War Criminals Before The Nuremberg Military Tribunals Under Control Council Law No.10 (1952), 1217, 1222, U.S. v. Alfred Krupp in Vol. X Law Reports of Trials of War Criminals (1949) 130–159 as well as the so called Zyklon B case, Bruno Tesch and others, before the British Military Court at Hamburg I Law Reports of Trials of War Criminals (1947) 93–103.

  30. Zyklon B case, Bruno Tesch and others, supra as an example for individual criminal responsibility for aiding and abetting activities as an industrialist, I Law Reports of Trials of War Criminals (1947) 93–103.

  31. See US v Goering in The Nuremberg Trials, 6 F.R.D (1946) 69, 112.

  32. As supplement and extension to the criminalization of certain Nazi organizations such as the Leadership of the Nazi Party and the SS under Article 9 Nuremberg Charter, see Jørgensen (2003) at 139.

  33. The seven “Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal” were published in United Nations 2 International Law Commission Year Book 1950 (1957) 374–378.

  34. There was, however, a futile French proposal during the 1998 Rome Conference on the ICC which called for an inclusion of legal persons as well, see Art. 23(5)–(6) of the Draft Statute for the International Criminal Court, 1998, UN Doc A/CONF.183/2/Add.1. See Artcile 25 (3) of the ICC Statute which makes criminally responsible one who, “for the purpose of facilitating […] aids and abets”.

  35. Kremnitzer (2010) calls for the inclusion of such responsibility in the ICC Statute.

  36. Ramasastry and R. Thompson (n 23).

  37. Filartiga v. Pena-Irala 630 F 2d 876 (2d Cir 1980).

  38. The ATCA/ATS was only used on a few occasions prior to Filartiga. See Symposium on “Corporate liability for violations of international human rights law” in 114 Harvard Law Review (2001), 2033.

  39. Human rights litigation in the USA is based mainly on the ATCA/ATS as the main jurisdictional statute. Consequently, the term “ATCA/ATS” refers to any action brought before US courts under these statutes.

  40. Filartiga v Pena-Irala (n 38).

  41. Kadic v Karadzic 70 F 3d 232 (2nd Cir 1995) for an adjudication of human rights atrocities committed during the Bosnian Yugoslav War of 1991 to 1995.

  42. Such as terrorism, cf. Smith v Socialist Peoples Libyan Arab Jamahiriya 101 F 3d 239 (2d Cir 1996) for the terrorist Lockerbie bombing of 1988.

  43. Bachmann (2007), Herz (2008).

  44. See Strydom and Bachmann (2005, 454–457) for an overview and The Independent “Shell on trial—Oil giant in the dock over 1995 murder of activist who opposed environmental degradation of Niger Delta”, retrievable at http://www.independent.co.uk/news/world/americas/shell-on-trial-1690616.html.

  45. See Symposium (n 34) 2025–2049, Bachmann (n 44) 292–296.

  46. Symposium (n 39) at 2027. Herz (n 44).

  47. John Doe I v. Unocal Corp (n 24).

  48. The case was settled out of court in 2006, see press statement “Historic advance for universal human rights: Unocal to compensate Burmese villagers” retrievable at http://www.earthrights.org/news/press_unocal_settle.shtml.

  49. Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 157 Oil & Gas Rep. 1, 31 Envtl. L. Rep. 20,166 (2d Cir 2000) (NO. 99-7223L, 99-7245XAP), the case was settled out of court in 2009 and The Independent “Shell on trial—Oil giant in the dock over 1995 murder of activist who opposed environmental degradation of Niger Delta”, retrievable at http://www.independent.co.uk/news/world/americas/shell-on-trial-1690616.html.

  50. Sarei v. Rio Tinto, PLC, 487 F.3d 1193, 1198 (9th Cir. 2007).

  51. 105 F Supp 2d 139 (EDNY 2000).

  52. In re Nazi Era Cases Against German Defendants Litig (2000) 198 FRD 429 (DNJ) MDL No 1337 DNJ Lead Civ No 98-4104 (WGB).

  53. DAX is the acronym for Deutsche Aktien Index where the major German (public) corporations are listed.

  54. See the German Act Gesetz zur Errichtung einer Stiftung, Erinnerung, Verantwortung und Zukunft of 2 August 2000 (Bundesgesetzblatt: BGBl 2000 I 1263).

  55. Stephens (n 2) at 543 ff for an overview of related lawsuits within their topical context.

  56. 375 F.Supp. 2d 721 (N.D. III. 2005).

  57. See the appeal case of In re South African Apartheid Litigation, 02 MDL 1499 (S.D.N.Y. 2009) which continues the original unsuccessful 2004 lawsuit, In re South African Apartheid Litigation 346 F. Supp. 2d 538 (S.D.N.Y. 2004).

  58. (n 42).

  59. Symposium (n 39) 2039.

  60. Wiwa, (n 50).

  61. See Prosecutor v. Dusko Tadic, Judgment Appeals Chamber (ICTY), 38 ILM 1518, 1549, outlining the “overall control” test requirements for the “internationalizing” of the Bosnian conflict of 1992–1995. The ICTY decision overcame the much stricter “effective control” test of the ICJ’s Nicaragua v. USA decision in Military and Paramilitary Activities in and against Nicaragua, ICJ Rep 1986, 62 et seq.

  62. Kiobel v. Royal Dutch Petroleum, (n 21).

  63. IMT, judgment of 1 October 1946 in 22 IMT Trials 466, reprinted in 41 AJIL (1947) 172–221.

  64. 28 USC Section 1350 [also referred to as the Alien Tort Claims Act (ATCA)] reads: “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.”.

  65. 28 USC Section 1350.

  66. 18 USC Sections 2331–2338.

  67. 28 USC Section 1605 (a) (7) which allows lawsuit against so called state sponsors of terrorism.

  68. 18 USC Section 1961 et sequ.

  69. Law regulating the relations between and among non citizens towards each other.

  70. In Kadic v. Karadzic (n 42) 239–241, the 2nd Circuit found that certain international crimes such as genocide resembled exceptions to that rule.

  71. 28 U.S.C. § 1350 reads: “The district courts shall have original jurisdiction over 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”.

  72. Filartiga defined torts actionable under the ATCA as “of mutual, and not merely several, concern, by means of express in international accords, that a wrong generally recognized becomes an international law violation within the meaning of the (ATCA) statute”, Filartiga v. Pena-Irala (n 38) at 888.

  73. 672 F Supp (ND Cal 1987) 1531.

  74. Which has become recognized as the so called Forti test. The US Supreme Court referred to this test in its Sosa v Alvarez-Machain decision of 29 June 2004, 124 S Ct 2739 (2004), Sosa hereafter. The Forti test consists actually of two parts, Forti I and II with the former outlining the requirements for the jus cogens nature of actionable torts and the latter defining the “universality” criteria thereof, see Stephens (n 20) at 51–52.

  75. 672 F Supp (ND Cal 1987) 1539–1540.

  76. The so called personal service requirement of summons etc. as stipulated in Fed.R.Civ.P 4 8(e) (2).

  77. Stephens (n 2) at 63–92.

  78. 18 U.S.C. Sections 2331–2339C, with the actual ATA comprising of sections 2332 to 2339C, excluding section 2332 a–h. The Act dates back to 1990, was dormant after a technical repeal in 1991 and was reenacted in 1991 as part of the Federal Courts Administration Act of 1992. See Pub. L. No. 102-572, § 1003, 106 Stat. 4506, 4521–4524 (1992).

  79. United Nations General Assembly Resolution 49/60 (1994) A/RES/49/60, Annex, para 3.

  80. U.N. General Assembly Draft Comprehensive Convention Against International Terrorism, Report of the Working Group, Sixth Committee, Un Doc. A/C.6/66/SR.28. The Committee plans to resume its meetings in 2013 with no meetings planned for 2012.

  81. 726 F.2d 774 (D.C. Cir. 1984), concerning the murdering and wounding of over 100 victims by the PLO.

  82. See e.g. Flatow v. Islamic Republic of Iran, 76 F. Supp. 2d 28 (D.D.C. 1999) and for a general overview Lawsuits Against State Supporters of Terrorism: An Overview CRS Report for Congress, retrievable at www.fas.org/sgp/crs/terror/RS22094.pdf.

  83. The FSIA Exception therefore amends the Foreign States Immunity Act to permit a civil suit under the following requirements: (1) The foreign state was designated as a state sponsor of terrorism under section 6 (j) of the Export Administration Act of 1979 [50 U.S.C § 2405 (j)(1994)] or section 620 (a) of the Foreign Assistance Act of 1961 [22 U.S.C. § 2371 (1994)] at the time of the commission of the act; (2) The act was committed within the designated state and there was a reasonable opportunity for the state to arbitrate the claim; or (3) The claimant was not a US national.

  84. 28 U. S. C. §§ 1602–1605.

  85. Currently there are four countries designated under these authorities: Cuba, Iran, Sudan and Syria, see http://www.state.gov/j/ct/rls/crt/2010/170260.htm (last visited 27-04-2012).

  86. As amended under the 2001 PATRIOT ACT.

  87. Rux v. Republic of Sudan, 2005 WL 2086202 (E.D.Va. 2005), for alleged material support in Al Qaeda’s attack on the US warship Cole in Aden, Yemen waters in 2000, appealed.

  88. Flatow v. Islamic Republic of Iran, (n 83) Iranian Ministry of Information and Security-defendant’s daughter was killed while travelling in Israel by suicide bomber who had received support and training from agents of Iran.

  89. Kadic v. Karadzic (n 42) Serb leader for his role in the Bosnian ethnic cleansing as a state actor of an unrecognized government.

  90. See the Boim litigation consisting of the cases Boim v. Quranic Literacy Institute (n 6) (Boim I), Boim v Holy Land Found. for Relief Dev., Nos.05-1815,05-1816,05-1821,05-1822 (7th Cir. 2007) (Boim II)and Boim III 549 F.3d 685, 687 97th cir.2008)—US defendant’s son was killed in Israel by Hamas terrorists and the suit was directed against the alleged gunmen but also other—financial-supporters of Hamas.

  91. Stephens (n 2), 239–245. The total of cases where US jurisdiction under the ATCA was granted and upheld in dozens of cases, see Stephens (2008b). See also Bachmann (2011a, b).

  92. BGH—III ZR 245/98 (OLG Köln) concerning claims of Greek citizens whose relatives were murdered by German security forces in 1944. The growing number of human rights cases before the European Court of Human Rights resulting in financial compensation awards for the victim plaintiff does exemplify the above mentioned change of this traditional view.

  93. Cf. Rau (2001).

  94. Ibid and Ronald Grant Jones v The Ministry of the Interior Al-Mamlaka Al-Arabiya as Saudiya (The Kingdom of Saudi Arabia) & Anor. in (2004) EWCA Civil 1394 et seq paras 61–68.

  95. See the dictum Filartiga v Pena-Irala (n 38) at 890.

  96. Oran Almog et al., v Arab Bank, PLC (04-CV-5564(NG)(VVP), Gila Afriat-Kurtzer, et al., v Arab Bank, PLC (05-CV-0388(NG)(VVP) (Arab Bank hereafter) Linde v Arab Bank, PLC, 384 F Supp 2d571 (E.D.N.Y 2005) and Almog v. Arab Bank, PLC, 471 F. Supp. 2d 257 (E.D.N.Y 2007).

  97. Ibid.

  98. 349 F.Supp 2d 765 (S.D.N.Y. 2005).

  99. Ibid, at 798.

  100. 2d Circuit, Sept 17, 2010 (n 21).

  101. The implications of the former two lawsuits were mostly political for the states in question: Switzerland and Germany faced significant negative publicity for their unwillingness to acknowledge their responsibility to acknowledge financial liability. The impact of the Apartheid lawsuit is more economical: heavy penalties will lead to a reduction of corporate wealth and consequently will have fiscal and social consequences for the market economies affected.

  102. Occupied territories according to UN Security Council Resolution 242 of 1967 and referring to the Gaza Strip, the Golan Heights and the West Bank. See also the Advisory opinion of the International Court of Justice in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory of 9 July 2004, retrievable at http://www.icj-cij.org/docket/files/131/1677.pdf.

  103. See Harpaz (2004).

  104. In Corrie et al. v Caterpillar CV-05192-FDB, it was alleged that Caterpillar violated international and federal US law when exporting bulldozers to the Israeli Defence Forces despite the knowledge that those were to be used for demolitions in the controlled Palestinian territories (West Bank). One of the defendants’ relatives, Corrie, was killed while demonstrating against such demolitions. While the case was dismissed in the US it was heard as a civil case before the District Court of Haifa (April 2011). Caterpillar discontinued exports to Israel while the trial was pending.

  105. Yitzhak Rabin’s assassination by an ultra-orthodox Israeli as a consequence of his signing of the Oslo Peace Accords serves as a drastic example of such dynamics of Israeli politics.

  106. See Powell (2008) for a general overview of the problems defining terrorism as an international legal concept thus harmonizing a multitude of existing domestic and international anti-terrorism concepts and programmes.

  107. Cf. Bachmann (2008) at 51–82 where the features of such a future Convention on Corporate and Individual Civil Liability for Human Rights Violations and Terrorism are discussed.

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    Sascha-Dominik Bachmann

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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).

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Bachmann, SD. Bankrupting Terrorism: The Role of US Anti-terrorism Litigation in the Prevention of Terrorism and Other Hybrid Threats: A Legal Assessment and Outlook. Liverpool Law Rev 33, 91–109 (2012). https://doi.org/10.1007/s10991-012-9115-7

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