The Rule of Law Is Only Relevant to Those Who Subscribe to It: The Failure of Punitive Damages in Terrorism as Tort Litigation

By Sternlieb, Sarah M. | Journal of International Law & International Relations, Spring 2015 | Go to article overview

The Rule of Law Is Only Relevant to Those Who Subscribe to It: The Failure of Punitive Damages in Terrorism as Tort Litigation


Sternlieb, Sarah M., Journal of International Law & International Relations


I.  How the State-Sponsor of Terrorism Exception to the     FSIA Allows Suits For Punitive Damages     1. The Statutory Provisions Allowing For Suits Against        Sponsors of Terrorism     2. Limitations on Suits Against Sponsors of Terrorism     3. The Award of Punitive Damages II. Punitive Damages Awarded Under the FSIA Fail to Fulfill     Their Purpose and Aim     1. Punitive Damages Do Not Provide Deterrence Because They        Do Not Deplete Terrorist Groups' Assets     2. The Grossly Excessive Punitive Damages Are Not Effective     3. Punitive Damages Do Not Send an Effective Warning     4. The Purpose and Effect of Punitive Damages Is Properly        Made Under Compensatory Damages 

A new genre of legal warfare has emerged in the war against terror. The last two decades have seen the emergence of compensation for terrorist victims and the punishment of sponsors of terrorism through the use of tort law. Lawsuits may now be brought against state sponsors of terrorism, terrorist organizations, and individuals and entities that provide support for terrorist actions. (1) Through statutory schemes enacted by Congress, as well as some common law claims, terrorism as a tort is actionable against state sponsors of terrorism. (2) These claims may include punitive as well as compensatory damages.

Plaintiffs typically sue under a state-sponsor of terrorism exception to the Foreign Sovereign Immunities Act (FSIA). Under the FSIA, recovery of punitive damages is available against state sponsors of terrorism. The 1996 amendments to the FSIA allowed for punitive damages with the express purpose of "altering] the conduct of foreign states." (3) However, the recovery of punitive damages face obstacles at every step of litigation, from procedural and jurisdictional challenges to the actual recovery of judgment. The realities of these lawsuits demonstrate that punitive damages are a long way from successfully deterring conduct or punishing terrorist funders.

In the first part, this paper provides an overview of terrorism litigation and the statutory scheme enacted to provide a justiciable claim to litigants. Under the FSIA, recipients of punitive damages awards rarely obtain their judgments against their non-cooperative and defaulting defendants. This paper then considers the aims of punitive damages and their efficacy against state sponsors of terrorism.

At first glance, it would seem that terrorist actions fit precisely within the definition of punitive damages. Punitive damages are awarded when "defendant[s] act[] with recklessness, malice, or deceit." (4) They are meant to punish and deter (5) bad behavior, such as terrorism, but are entirely separate and are not meant as compensation. (6) The punitive damages awarded under the FSIA rarely have this effect and remain largely uncollected. This paper argues that punitive damages for terrorism fail to fulfill the purpose of punitive damages, waste time and money and distort the aim of punitive damages. A judgment meant to "penalize[e] the wrongdoer or mak[e] an example to others" and "deter blameworthy conduct" (7) ultimately misses the mark when entered against countries already deemed 'state-sponsors of terrorism' for their reprehensible conduct.

I. HOW THE STATE-SPONSOR OF TERRORISM EXCEPTION TO THE FSIA ALLOWS SUITS FOR PUNITIVE DAMAGES

2. The Statutory Provisions Allowing For Suits Against Sponsors of Terrorism

In the past twenty-five years, Congress has enacted legislation to enable lawsuits against state sponsors of terrorism. The primary vehicle used to obtain punitive damages judgments is through the FSIA and its exception for state-sponsors of terrorism. (8) The FSIA provides immunity to foreign sovereign nations as an important statement of comity in foreign relations. In 1996, Congress created the 'state-sponsored terrorism' exception to the FSIA. This exception abrogates the immunity from liability in civil lawsuits that certain foreign states formerly held when they sponsor terrorist activity. …

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