INTERNATIONAL LAW

UNITED NATIONS SECURITY COUNCEIL RESOLUTION 1373, OBLIGATING ALL STATES TO PREVENT, PUNISH AND SURPRESS FINANCING TERRORISM.

On September 28, 2001, the United Nations Security Council unanimously adopted Resolution 1373 acting under Chapter VII of the UN. Chater, reaffirming that “any act of international terrorism constitutes a threat to international peace and security,” and pursuant to the “collective right of self-defense under the United Nations Charter,” imposed the following obligations upon all States:

1(a) Prevent and suppress the financing of terrorist acts:

1(b) Criminalize the willful provision or collection, by any means, directly or indirectly, with the intention tha6 the funds should be used, or in the knowledge that they are to be used to carryout terrorist acts;

1(c) Freeze funds and financial assets of persons who commit, or attempt to commit, terrorist acts or participate in or facilitate the commission of terrorist acts…

2(a) Refrain from providing any form of support to entities or persons involved in terrorist acts

2(b) Deny safe harbor to those who finance, plan, support, or commit terrorist acts, or provide safe harbor; and

2(c) ENSURE THAT ANY PERSON WHO PARTICIPATES IN THE FINANICNG, PLANNING, PREPARATION OR PERPETRATION OF TERRORIST ACTS OR IN SUPPORTING TERRORIST ACTS IS BROUGHT TO JUSTICE.

The Security Council noted with concern the close connection between international terrorism and transnational organized crime, and declared that “acts, methods, and practices of terrorism are contrary to the purposes and principles of the United Nations” and that the “knowingly financing, planning and inciting terrorist acts are also contrary to the purposes and principles of the Unted Nations.”

UNITED NATIONS BASIC PRICIPLES OF BUSINESS AND HUMAN RIGHTS

On June 16, 2011, the United Nations Human Rights Council unanimously adopted the UN  Guiding Principles on Business and Human Rights which “are grounded in recognition of:

(a) States’ existing obligations to respect, protect and fulfil human rights and fundamental freedoms;

(b) The role of business enterprises as specialized organs of society performing specialized functions, required to comply with all applicable laws and to respect human rights;

(c) The need for rights and obligations to be matched to appropriate and effective remedies when breached.”

These Guiding Principles apply to all States and to all business enterprises, both transnational and others, regardless of their size, sector, location, ownership and structure.

UNITED NATIONS GENERAL ASSEMBLY RESOLUTION 60/147 MOVING THE FOCUS OF INTERNATIONAL LAW FROM THE PERPETRASTORS TO THE RIGHTS OF THE VICTIMS.

On December 16, 2005, the United Nationals General Assembly adopted Resolution 60.147, the Basic Principles for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, providing the right to a remedy for victims of serious and gross violations of international human rights and humanitarian law, “which, by the very grave nature constitutes an affront to human dignity.”  Remedies include “equal and effective access to justice, adequate, and effective and prompt reparation for harm suffered.”  Reparation includes restitution, compensation for physical or mental harm, lost opportunities and earnings, material and moral damages, and costs for legal or expert assistance, medicine, medical services and psychological and social services.

U.S. LAW

FOREIGN SOVEREIGN IMMUNITY ACT (“FSIA”) 28 U.S.C. §1605A

In 1976, Congress adopted the Foreign Sovereign Immunity Act, which established under U.S. law that foreign States are not automatically immune from suit in U.S. courts. In 1996, Congress amended FSIA to strip foreign States designed by the United States as “sponsors of international terrorism” (“SST”) of immunity from lawsuits filed by U.S. nationals for wrongful death, personal injury and property damages resulting from certain acts of international by persons supported by a designated SST.

No immunity.— A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case not otherwise covered by this chapter in which money damages are sought against a foreign state for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act if such act or provision of material support or resources is engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or agency.

In 2008, Congress expanded the right for non-U.S. nationals to file suit against SSTs.

Claim heard.—The court shall hear a claim under this section if— the foreign state was designated as a state sponsor of terrorism at the time the act described in paragraph (1) occurred, or was so designated as a result of such act, and…either remains so designated when the claim is filed under this section or was so designated within the 6-month period before the claim is filed under this section; [and] the claimant or the victim was, at the time the act occurred—

(I) a national of the United States;

(II) a member of the armed forces; or

(III) Otherwise, an employee of the Government of the United States, or of an individual performing a contract awarded by the United States Government, acting within the scope of the employee’s employment;”

On May  29, 2019, the United States Court of Appeals for the District of Columbia held that the statute of limitations under FSIA is not jurisdictional but rather an affirmative defense which is waived if the defendant SST does not appear and raise the defense.  “we conclude that the District Court lacks authority to sua sponte raise a forfeited statute of limitations defense in an FSIA terrorism exception case, at least where the defendant sovereign fails to appear.” Maalouf v. Islamic Republic of Iran, No. 18-7052, Court of Appeals for D.C. Circuit.

ANTI TERRORISM ACT (“ATA”) 18 U.S.C. §2331 et seq.

§2331 (1) the term “international terrorism” means activities that-

(A) Involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or of any State;(B)  Appear to be intended

(C) Occur primarily outside the territorial jurisdiction of the United States, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to intimidate or coerce, or the locale in which their perpetrators operate or seek asylum.

§2333

(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…

(b) Liability

(1) Definition–

In this subsection the term “person” has the meaning given the term in section 1 of title 1.

(2) Liability-

In an action under subsection (a) for an injury arising from an act of international terrorism committed, planned, or authorized by an organization that had been designated as a foreign terrorist organization under section 219 of the Immigration and Nationality Act (8 U.S.C. 1189), as of the date on which such act of international terrorism was committed, planned, or authorized, liability may be asserted as to any person who aids and abets, by knowingly providing substantial assistance, or who conspires with the person who committed such an act of international terrorism.

TERRORISM RISK INSURANCE ACT OF 2002

The Terrorism Risk Insurance Act was enacted in 2002 to establish a means for the satisfaction of judgments against terrorist parties. The Act subjects a terrorist party’s blocked assets to execution or attachment in the aid of execution to insure the payment of compensatory damages. Nationals of the United States, members of the Armed Forces of the United States, employees of the government of the United States, and individuals performing a contract awarded by the United States Government have standing under the Act.

In order to execute or attach a judgment upon a terrorist party’s blocked assets, the plaintiff must:

(1) Obtain a judgment against a terrorist party on a claim:

        a. Based upon an act of terrorism (ATA, etc.), or

      b. For which a terrorist party is not immune under Section 1605A or 1605(a)(7) of the Foreign Sovereign Immunities Act (FSIA).

(2) Show that the terrorist party’s assets are blocked as defined under the Act.

       a.  A “blocked asset” is any asset seized or frozen by the United States pursuant to

            i. Section 5(b) of the Trading with the Enemy Act (TWEA)

           ii. Section 202 and 203 of the International Emergency Economic Powers Act (IEEPA); or

          iii. Section 805(b) of the Foreign Narcotics Kingpin Designation Act (Kingpin Act).

TWEA and IEEPA both authorize the President to freeze the assets of foreign enemies and their agencies and instrumentalities so that the President may dispose of these assets in a manner that best furthers the United States’ foreign relations and national-security interests. Whereas the former empowers the President to operate within a declared state of war, the latter requires that the President declare a national emergency with respect to an unusual or extraordinary foreign threat.

The Kingpin Act Authorizes the President to block all assets which are owned or controlled by a significant foreign narcotics trafficker, as identified by the President.

Assets become blocked under TWEA, IEEPA and the Kingpin Act when the United States Department of Treasury Office of Foreign Assets Control (OFAC) designates the owner of the assets. OFAC specifies the jurisdictional basis for any designation it makes.

(3) Specify an amount in execution or attachment that does not exceed the amount owed to the plaintiff in compensatory damages.

(4) In the event that a plaintiff seeks to execute or attach a judgment upon the blocked assets of a third party, the plaintiff must establish that the third party is an agency or instrumentality of the terrorist part

JUSTICE FOR UNITED STATE VICTIMS OF STATE SPONSORED TERRORISM ACT 34 U.S.C. §20144

( c)(1) A claim is an eligible claim if the Special Master determines that-

           (a) The judgment holder, or claimant, is a United States person

           (b) The claim is described in paragraph (2); and

           (c) The requirements of paragraph (3) are met.

(c)(2) The claims referred to in paragraph (1) are for-

          (a) Compensatory damages awarded to a United States person in a final judgment-

               (i) Issued by a United States district court under State or Federal against a state sponsor of terrorism; and

              (ii) Arising from acts of international terrorism, for which the foreign state was determined not to be immune from the jurisdiction                                     of the courts of the United States under 2605A or 1605B of Title 28.

TRAFFICKING VICTIMS’ PROTECTION REAUTHORIZATION ACT OF 2003 (“TVPRA 2003”) Public Law No: 108-193 (12/19/2003) 18 U.S.C. §1595

Trafficking Victims Protection Reauthorization Act of 2003 – (Sec 4) established human trafficking as a chargeable crime under the Racketeering Influenced Corrupt Organizations (RICO) statute.  It provided a civil right of action for trafficking victims to sue their traffickers in any appropriate U.S. District Court for actual damages, punitive damages, reasonable attorneys' fees, and other litigation costs reasonably incurred.

§1595 Civil Remedy

(a)  An individual who is a victim of a violation of section 1589, 1590, or 1591 of this chapter may bring a civil action against the perpetrator in an appropriate district court of the United States and may recover damages and reasonable attorneys fees.

(b) (1) Any civil action filed under this section shall be stayed during the pendency of any criminal action arising out of the same occurrence in which the claimant is the victim.

(b)(2) In this subsection, a 'criminal action' includes investigation and prosecution and is pending until final adjudication in the trial court.

TORTURE VICTIMS’ PROTECTION ACT (“TVPA”) 28 U.S.C. §1350

An Act to carry out obligations of the United States under the United Nations Charter and other international agreements pertaining to the protection of human rights by establishing a civil action for recovery of damages from an individual who engages in torture or extrajudicial killing.

ESTABLISHMENT OF CIVIL ACTION.

(a) Liability. An individual who, under actual or apparent authority, or color of law, of any foreign nation:

    (1) Subjects an individual to torture shall, in a civil action, be liable for damages to that individual; or

    (2) Subjects an individual to extrajudicial killing shall, in a civil action, be liable for damages to the individual's legal representative, or to any                  person who may be a claimant in an action for wrongful death.

(b) Exhaustion of Remedies. A court shall decline to hear a claim under this section if the claimant has not exhausted adequate and available remedies in the place in which the conduct giving rise to the claim occurred.

(c) Statute of Limitations. No action shall be maintained under this section unless it is commenced within 10 years after the cause of action arose.