Gregory P. Joseph

The Alien Tort Statute (or Alien Tort Claims Act (‛ATS“)) confers federal subject matter jurisdiction over ‛any civil action by an alien for tort only, committed in violation of the law of nations....“ The Supreme Court held in Sosa v. Alvarez-Machain, 542 U.S. 692, 724 (2004), that this jurisdictional grant is premised on the recognition that the common law provides a cause of action for certain international law violations.

The nettlesome aspect of ATS litigation has been determining precisely which violations of international law are actionable. Sosa requires that ‛any claim based on the present-day law of nations [must] rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms“ that were recognized in 1789, when the ATS was originally enacted. 542 U.S. at 725.

Is terrorism a violation of customary international law that satisfies the Sosa test? Notwithstanding the political baggage that many attempt to import to justify certain terrorist actions, the answer to the question is affirmative, for at least three independent reasons.

The Offences Clause. Some types of terrorist-related conduct have been Congressionally defined as constituting violations of international (as well as U.S.) law. Article I, Section 8, Clause 10 of the Constitution confers on Congress the power to ‛define and punish…Offences against the Law of Nations“ (the ‛Offences Clause“). In Hamdan v. Rumsfeld, 126 S.Ct. 2749, 2779 (2006), the plurality opinion observes that this clause vests in Congress the ‛constitutional authority to ‘define and punish ... Offences against the Law of Nations.“

Congress has exercised this authority by outlawing certain types of terrorist behavior, and terrorist-related behavior (such as financing terrorism). These criminal statutes reflect binding Congressional definitions of violations of customary international law, and thus identify conduct that is actionable under the ATS.

For example, Congress exercised its authority under the Offences Clause in passing Title III of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214 (Apr. 24, 1996) (the ‛AEDPA“). Section 301(a)(2) of Title III provides:

The Congress finds that ... the Constitution confers upon Congress the power to punish crimes against the law of nations and to carry out the treaty obligations of the United States, and therefore Congress may by law impose penalties relating to the provision of material support to foreign organizations engaged in terrorist activity.

Title III of the AEDPA includes § 303 of Pub. L. 104-132. This statute, codified at 18 U.S.C. § 2339B, outlaws ‛provid[ing] material support or resources to a foreign terrorist organization, or attempt[ing] or conspire[ing] to do so....“ The phrase ‛[p]roviding material support or resources“ to terrorists is broadly defined to include almost any kind of assistance or financial services. See 18 U.S.C. §§ 2339B(g)(4) and 2339A(b)(1).

Therefore, anyone (or any organization) committing any of the acts comprising the provision of material support or resources to terrorists has committed a ‛violation of the law of nations,“ as determined by Congress in exercise of its power under the Offences Clause. The same analysis applies to any other criminal act that Congress has defined as a violation of the law of nations pursuant to the power vested in it in the Offences Clause. These are violations of customary international law actionable under the Alien Tort Statute.

It should be noted that Title III of the AEDPA incorporates express definitions of ‛terrorist activity“ and ‛terrorism.“ See Pub. L. 104-132 at § 302, which enacts 8 U.S.C. § 1189(a)(1)(B), which in turn adopts the definition of ‛terrorist activity“ in 8 U.S.C. § 1182(a)(3)(B) and the definition of ‛terrorism“ in 22 U.S.C. § 2656(d)(2). It is thus fair to say that, in legislating offenses against the law of nations, Congress has defined these highly-charged terms — at least insofar as the activities prohibited in Title III of the AEDPA are concerned, and perhaps more broadly. The foregoing analysis, however, is not dependent on there being any accepted definition of ‛terrorist activity“ or ‛terrorism“ as a matter of customary international law. Rather, the point is that Congress has specified certain acts as violative of the law of nations, which triggers potential liability of those committing them under the ATS.

Chapter VII of the U.N. Charter. The second source of customary international law prohibiting terrorism is the United Nations. In evaluating, for purposes of U.S. law, whether actions of the United Nations make customary international law, federal courts distinguish between the U.N. entity taking the action (e.g., General Assembly, Security Council) and the nature of the action taken (i.e., aspirational or binding). Thus, General Assembly resolutions that are purely aspirational in nature and do not give rise to internationally recognized obligations are not held, in themselves, to create customary international law. The federal courts recognize, however, that a resolution which is passed by the U.N. Security Council pursuant to Chapter VII of the United Nations Charter is legally ‛binding“ as a matter of international law. See, e.g., Flores v.Southern Peru Copper Corp., 343 F.3d 140, 167 (2d Cir. 2003).

The U.N. Security Council has passed a number of resolutions pursuant to Chapter VII that recognize international terrorist acts as violations of customary international law. For example:

United Nations Security Council Resolution 1566 was adopted on October 8, 2004, pursuant to Chapter VII of the U.N. Charter. In paragraph 3 of this resolution, the Security Council:

Recalls that criminal acts, including against civilians, committed with the intent to cause death or serious bodily injury, or taking of hostages, with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government or an international organization to do or to abstain from doing any act, which constitute offences with the scope of and as defined in the international conventions and protocols relating to terrorism, are under no circumstances justifiable by consideration of a political, philosophical, ideological, racial, ethnic, religious or other similar nature....

Among the ‛international conventions and protocols relating to terrorism“ which are incorporated by reference in this binding Security Council resolution are the International Convention for the Suppression of Terrorist Financing and the International Convention for the Suppression of Terrorist Bombings.

In addition to Resolution 1566 and the conventions it incorporates, the Security Council has passed statutes pursuant to Chapter VII of the U.N. Charter creating two international criminal tribunals — the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda. (Congress has passed legislation implementing each of these U.N. statutes . Pub. L. No. 104-106, 110 Stat. 186, 486 (1996).)

The U.N. statutes creating these Tribunals authorize criminal prosecution — and impose individual criminal liability — for ‛Serious Violations of International Humanitarian Law,“ including Genocide, Crimes against Humanity and violations of Common Article III of the Geneva Convention. These U.N. statutes also impose liability for aiding and abetting the specified criminal acts.

Consequently, any person committing any of the acts proscribed by Resolution 1566 or the statutes creating the Yugoslavia or Rwanda Tribunals has committed a ‛violation of the law of nations,“ as determined by the Security Council in exercise of its binding power under Chapter VII of the U.N. Charter. These acts are, therefore, violations of customary international law actionable under the ATS.

Geneva Convention. As noted above, the U.N. Security Council has recognized violations of Common Article III of the Geneva Conventions as representing customary international law. So, too, has the United States Supreme Court. In Hamdan, the Supreme Court held that the Geneva Conventions form part of the law of nations. 126 S.Ct. at 2786. The Court further held that Common Article III applies to parties that have not signed the Geneva Conventions (e.g., Al Qaeda or any other terrorist organization) and even to a party that is not a ‛legal entity capable of undertaking legal obligations“ (such as a terrorist organization). 126 S.Ct. at 2795 n.2.

Common Article III (so named because it appears, identically, in each of the four Geneva Conventions) applies to ‛armed conflicts.“ Common Article III provides that ‛persons taking no active part in the hostilities...shall in all circumstances be treated humanely“ and that ‛prohibited“ acts include ‛violence to life and person, in particular murder....“

As a result, terrorists committing acts proscribed by Common Article III of the Geneva Conventions are committing violations of customary international law that are actionable under the ATS.

True, terrorists or their heirs may be judgment proof. But the reach of customary international law as codified in 18 U.S.C. § 2339B and recognized in U.N. Security Council Resolution 1566 and the Yugoslavia and Rwanda Tribunals extends much further. See also Sarei v. Rio Tinto, plc, 2006 U.S. App. LEXIS 20174, at *16 n.5 (9th Cir. Aug. 6, 2006) (‛violations of the law of nations have always encompassed vicarious liability“) (aiding and abetting liability). Terrorism can be attacked financially under § 1350 root and branch.

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* Gregory P. Joseph Law Offices LLC, New York. Fellow, American College of Trial Lawyers; Chair, American Bar Association Section of Litigation (1997-98), and member, U.S. Judicial Conference Advisory Committee on the Federal Rules of Evidence (1993-99). Editorial Board, Moore’s Federal Practice (3d ed.). Author, Sanctions: The Federal Law of Litigation Abuse (3d ed. Supp. 2007); Civil RICO: A Definitive Guide (2d ed. 2000); Modern Visual Evidence (Supp. 2007).
© 2006 Gregory P. Joseph