Choice of Law Rules
In addition to American laws, victims of terrorism have also been able to apply Israeli legal causes of action in American courts. This is important because application of a certain body of substantive law in a lawsuit can be outcome determinative.
There are times when American law expressly calls for the application of foreign law. This is called “choice of law” rules, and routinely applies in tort cases. Under traditional American choice of law theories, a court can apply the law of the country where the harm occurred.
For instance, in Licci v. American Express Bank, victims of a terrorist act that occurred in Israel asserted Israeli causes of action in American courts for negligence, breach of statutory obligation, and vicarious liability.
The Alien Tort Statute, 28 U.S.C. § 1350
At a glance: The ATS provides a civil remedy for non-US citizens to recover damages in United States courts for crimes that took place outside the United States and violated international law.
Codified: 28 U.S.C. § 1350
The Alien Tort Statute (ATS), also known as the Alien Tort Claims Act (ATCA), was originally enacted by Congress as part of the Judiciary Act of 1789.
In 1789, the ATCA was interpreted to allow aliens, persons who are not United States citizens, to recover in United States courts for crimes that violated the “law of the nations,” i.e., international law, such as piracy on the high seas.
In 1980, the ATCA was modernized to include the crime of torture as a crime against the “law of nations.” In a landmark ruling, the U.S. Court of Appeals for the Second Circuit in New York reaffirmed 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). In that case, a family of a Paraguayan citizen that had been tortured and killed by a Paraguayan officer sued the former officer in a New York federal court. The plaintiffs successfully argued that torture was a violation of international law, and that the U.S. federal courts had jurisdiction over the former police officer’s acts of torture that occurred in Paraguay.
As a result of the Filártiga decision, numerous other cases involving novel violations of international law have been filed in federal courts. In Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), the U.S. Supreme Court limited ATS’s jurisdictional scope to well-established international legal claims that are clearly accepted by the international legal community. 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 9/11 were 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, Note to 28 U.S.C. § 1350
At a glance: The TVPA extended the remedy available under Alien Tort Statute to American citizens and aliens who have suffered either torture or extrajudicial killing outside of the United States, under the color of law of a foreign state.
Codified: Note to 28 U.S.C. § 1350
In 1992, Congress enacted the TVPA to codify the ruling in Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980).
In contrast with that Alien Tort Statute – which refers broadly to “a tort … committed in violation of the law of nations or a treaty of the United States” – the TVPA explicitly grant non-American citizens the right to sue in federal courts for just two international law torts: torture and extrajudicial killing.
The TVPA enhanced the remedy available under ATS by providing clear statutory guidelines for claims involving either torture or extrajudicial killings, and extending the civil remedy to American citizens who have suffered either torture or extrajudicial killing outside of the United States, under the color of law of a foreign state.
To date, only four judgments of the Supreme Court mention the TVPA and only one offers any extended analysis: Mohamad v. Palestinian Auth., 132 S. Ct. 1702 (2012).
Here the oral argument here.
After 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.
Antiterrorism Act, 18 U.S.C. § 2333
At a glance: The ATA grants U.S. citizens the right to sue anyone responsible for causing an act of international terrorism that caused injury to a U.S. citizen, and to recover treble damages plus attorney’s fees.
Codified: 18 U.S.C. § 2333
The ATA was passed by Congress in 1992 in response to the legal difficulties experienced by the family of Leon Klinghoffer, a U.S. citizen murdered on an Italian cruise ship by PLO terrorists. At the time the case was filed, the Klinghoffers could not sue the PLO in federal court for terrorism, because 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).
Following the Klinghoffer case, Congress decided to provide federal courts with an explicit grant of jurisdiction over international terrorism. Congress modeled the new antiterrorism law after the civil liability provisions found in the federal Racketeer Influenced and Corrupt Organizations (RICO) Act, which had been used successfully by victims of the mafia who sued for damages. See 18 U.S.C. § 1964.
The ATA grants U.S. citizens the right to sue anyone responsible for causing an act of international terrorism that caused injury to the U.S. citizen, and to recover treble 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 have interpreted the ATA as authorizing civil liability against anyone who supports terrorist organizations in any way.
The below ATA cases demonstrate that banks can be held civilly liable for violating the U.S. criminal law provisions that prohibit financial transactions with terrorists, provided the bank knows the activities of its clients and provided them with financial assistance regardless.
1. Ungar v. Palestine Liberation Organization, 402 F.3d 274 (1st Cir. 2005). The first terrorism case under the ATA which 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.
2. Boim v. Quranic Literacy Institute and Holy Land Foundation For Relief and Development, 291 F.3d 1000 (7th Cir. 2002). This landmark case brought by the surviving family members of a murdered American teenager held the Texas-based Holy Land Foundation fundraising efforts for Hamas rendered it civilly liable to the victim.
Federal Sovereign Immunities Act, 28 U.S.C. § 1602 et seq.
At a glance: Although foreign sovereign states are typically immune from suit, the FSIA created an exception for a federal cause of action against State Sponsors of Terrorism.
Codified: 28 U.S.C. § 1602 et seq.
The FSIA, passed by Congress in 1976, provides a list of circumstances where U.S. federal courts will not recognize foreign sovereign immunity. In these circumstances, U.S. courts may exercise jurisdiction over a dispute and treat a foreign state as if it were a private entity.
The FSIA does not establish liability or a cause of action; it merely removes foreign sovereign immunity as a defense to the courts’ jurisdiction. Since no such exception exist for state support of terrorism, 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, Congress amended the FSIA to allow civil suits by U.S. victims of terrorism against designated State sponsors of terrorism responsible for, or complicit in such terrorist acts as torture, extrajudicial killing, aircraft sabotage, and hostage taking. After a court found that the waiver of sovereign immunity did not itself create a cause of action, Congress passed the “Flatow Amendment” to create a cause of action for such cases, granting plaintiffs the right to obtain punitive damages. Courts initially interpreted the statute as creating a cause of action against foreign States and their agencies, although its plain language referred only to officials, employees, and agents of such States.
Numerous court judgments, generally rendered after the defendants’ default, succeeded under the exception, resulting in awards to plaintiffs of substantial damages. As a result of these new provisions, 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 in some courts, 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 was held to be only a waiver of immunity and some other source of law, such as tort 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). The Cicippio court found that agents, officials or employees retain immunity for conduct performed in their official capacity. Under this ruling, plaintiffs seeking recovery for state-supported acts of terrorism under the Flatow Amendment had to file suit against specific foreign officials or agents who are alleged to be responsible for the terrorist acts causing their injuries.
A. FSIA Terrorism Exception
At a glance: § 1605A created an explicit federal cause of action against State Sponsors of Terrorism so that plaintiffs no longer needed to allege state law claims to bring a claim.
Codified: 28 U.S.C. § 1605A
To clarify the purpose of the FSIA, in 2008 Congress repealed the language in 28 U.S.C. § 1605(a)(7), and replaced it § 1605A to improve access to federal court and the available remedies.
This new law 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.
This amendment also permits plaintiffs with a pending terrorism-related lawsuit to ask the court to give their case effect as if the action had originally been filed under the new provision.
B. FSIA Commercial Use Exception
At a glance: § 1610(a)(7) allows a judgment creditor to enforce a judgment against property of a state sponsor of terrorism that is used for commercial activity in the United States.
Codified: 28 U.S.C. § 1610(a)(7)
The FSIA provides that the property of a foreign state is generally immune from attachment or execution subject to a few, carefully delineated exceptions. One such exception is 1610(a)(7), which allows a judgment creditor to enforce a judgment against property of a state sponsor of terrorism that is used for commercial activity in the United States. See 28 U.S.C. §§ 1610(a)(7). In short, under the commercial activity exception to the FSIA, the property of a foreign state is not immune from attachment or execution if the property at issue is used for a commercial activity by the foreign state in the United States
C. FSIA Commercial Use Exception as applied to Agencies or Instrumentalities
At a glance: § 1610(b) allows a judgment creditor to enforce a judgment against any property in the United States of an agency or instrumentality of a foreign state engaged in commercial activity in the United States.
Codified: 28 U.S.C. § 1610(b)
Under the FSIA, property of an agency or instrumentality of a foreign state is afforded narrower protection from execution than the property of the foreign state itself; while all property of an agency or instrumentality engaged in commercial activity is potentially subject to attachment or execution, attachment or execution of property of the foreign state itself is strictly limited to those assets that are themselves used for commercial activity, and, unlike the property of an agency or instrumentality, the property of a foreign state itself is never automatically subject to attachment or execution merely because the underlying judgment relates to a claim for which the state is not immune from suit.
Under § 1610(b), the property of an agency or instrumentality of a foreign state is subject to execution if the agency or instrumentality
(1) is engaged in commercial activity in the United States and
(2) either (a) has waived execution immunity, or (b) is subject to jurisdiction on the underlying claim under certain subsections of § 1605.
D. FSIA Non-Commercial Use Exception
At a glance: § 1610(g) allows for the attachment of property in aid of execution of FSIA judgments, including property owned by a foreign state or agency or instrumentality of such a state.
Codified: 28 U.S.C. § 1610(g)
In 2008, Congress amended the FSIA to strengthen the effectiveness of the terrorism exception to a foreign state’s jurisdictional immunity.
The newly enacted §1610(g) allows for attachment of any property of a foreign state against which a judgment is entered under section 1605A. The enactment of §1610(g) expanded the category of foreign sovereign property to any U.S. property in which a state sponsor has any interest, and is not limited to property connected to a commercial activity.
Terrorism Risk Insurance Act of 2002, 28 U.S.C. § 1610(g)
At a glance: The TRIA allows victims of terrorism to satisfy their judgments from certain assets of terrorists, terrorist organizations, and state sponsors of terrorism that have been blocked by the Office of Foreign Asset Control (OFAC) of the U.S. Department of State.
Enacted: 2002 as a note following FSIA § 1610.
Codified: 28 U.S.C. § 1610(g)
Codified as a note following FSIA § 1610, this statute allows victims of terrorism to satisfy their judgments from certain assets of terrorists, terrorist organizations, and state sponsors of terrorism that have been blocked by the Office of Foreign Asset Control (OFAC) of the U.S. Department of State.
In enacting the TRIA, Congress expanded the ability of victims of terrorism to reach beyond commercial property to attach property frozen by a financial sanction.
The “blocking” of such assets is effectuated through the President of the United States, who is empowered by the International Emergency Economic Powers Act (“IEEPA”) to do so. 50 U.S.C. §§ 1701, 1702.The TRIA makes the frozen assets of terrorist States available to satisfy judgments for compensatory damage against such States.
Israeli Tort Law Used in US Courts – Civil Wrongs Ordinance
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. Click here for the original Hebrew text.
1. 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.
2. CWO § 36 places a limit on the foreseeability of negligence
- 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.
3. CWO § 63 creates a civil wrong of Breach of Statutory Duty
- CWO § 63 defines Breach of Statutory Duty 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.
4. 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.