Civil Litigation against Terrorists and the Sponsors of Terrorism: Problems and Prospects
Murphy, John F., The Review of Litigation
Before turning to a consideration of the problems, and the prospects, of those seeking to sue terrorists, terrorist organizations, and state sponsors of terrorism, it may be useful to compare briefly the advantages and disadvantages of such suits with those of criminal prosecution.1 Intuitively, one may be inclined to view civil suits as a second best option to be employed only if criminal prosecution is not available. This would be a mistake.
At least in the United States, the prospects for holding the perpetrators of international terrorism civilly liable for their actions are substantially greater than the prospects for holding them criminally liable. Plaintiffs in civil suits benefit from a lower standard of proof - preponderance of the evidence rather than beyond a reasonable doubt - and are able to use discovery devices and, in some instances, international conventions on discovery to obtain documents and other forms of evidence unavailable in criminal proceedings.
Moreover, civil suits may be more effective than criminal proceedings in establishing the full factual context in which the perpetrators committed their crimes, thereby enhancing the prospects that the victims will have their suffering brought to the attention of the wider community and that a definite, historically accurate account of the atrocities will be provided. Also, unlike criminal prosecutions, civil suits provide at least the possibility that victims may be compensated for property lost, injuries suffered, or emotional distress caused. Another advantage of civil litigation relative to criminal prosecution should be noted: a civil suit may result in a judgment against a former high-ranking government official or against a state that sponsors terrorism.
To be sure, civil litigation in the United States as an alternative to criminal prosecution for the commission of international crimes like terrorism or egregious human rights violations is a highly controversial subject. Subjecting foreign governments to such suits has been especially controversial. Also, the barriers to successful litigation are formidable and include, among others, resistance by the United States government, limits on the lifting of foreign states' immunity under the Foreign Sovereign Immunities Act (FSIA),2 difficulties in collecting judgments in the United States, and possible hostile and retaliatory action on the part of foreign governments.
Let us turn first to some examples of civil suits against terrorists and non-state supporters of terrorism.
II. CIVIL SUITS AGAINST TERRORISTS AND NON-STATE SUPPORTERS OF TERRORISM
A. Alien Tort Claims Act or Alien Tort Statute
Other contributors to this symposium have addressed the Alien Tort Claims Act, often referred to as the Alien Tort Statute (ATS) and its controversial history, including the landmark Filartiga and Tel-Oren decisions and, most importantly, the United States Supreme Court's decision in Sosa.3 It should be noted that under the ATS, the plaintiff must be an alien, the complaint must allege a tort only, and the alleged tort must be in violation of "the law of nations."4 This ambiguous and controversial statute has been a primary basis for civil suits in federal courts based on the commission of international crimes abroad.5 It is not clear, however, that the ATS provides grounds for a civil suit against terrorists or terrorist supporters because it is unclear whether acts of terrorism are crimes or torts that violate the law of nations or customary international law.6 Although the ATS also grants federal courts subject matter jurisdiction over torts in violation of "a treaty of the United States," and the U.S. is party to most of the so-called antiterrorist treaties, such as the International Convention for the Suppression of Terrorist Bombing, U.S. case law does not clearly support interpreting the ATS to provide a cause of action for non-self-executing treaties or for treaties ratified with non-self-executing declarations attached. …