Several federal laws include provisions that authorize victims and families to file lawsuits for acts of international terrorism. This includes lawsuits against designated state sponsors of terrorism, other foreign states, and foreign entities such as banks (including the Arab Bank) based on their alleged role in providing financial support and other forms of material support to terrorist organizations.
American citizens who have suffered physical and emotional trauma and family members whose loved ones have been killed in terrorist attacks can use these laws to establish liability and seek financial compensation. They specifically cover acts of international terrorism, which include both terrorist attacks in the United States and terrorist activities in other countries around the world. American victims and their families can pursue justice and recourse in the US courts, and they can rely on specific provisions of these statutes to pursue attachment and other means of collection if necessary.
“American citizens, American nationals, and other individuals can all sue for acts of international terrorism in appropriate cases. Victims and family members can use civil lawsuits brought in federal district court to seek accountability, and foreign states and other foreign entities found liable in court can be held liable pursuant to statutory and judicial exceptions to sovereign immunity.” – Dr. Nick Oberheiden, Founding Attorney of Oberheiden Law Group.
Civil lawsuits involving acts of international terrorism can involve a variety of claims under federal law. With that said, any lawsuit brought under the laws discussed below must meet specific substantive and procedural requirements, and victims and family members must be prepared to prove their right to compensation based on human rights violations or other grounds. These are complex cases, so it is imperative that victims and their families engage experienced legal counsel to file their claims on their behalf.
Federal Laws that Authorize Lawsuits Against Foreign States for Acts of Terrorism
Broadly, civil lawsuits involving terrorist attacks and other acts of terrorism fall into two categories: (i) civil lawsuits against designated state sponsors of terrorism (i.e., Iran and Syria) and other foreign states; and, (ii) civil lawsuits against banks (i.e., the Arab Bank) and other foreign entities engaged in commercial activity that are accused of providing access to funding or other means of material support to terrorist organizations (i.e., Al Qaeda or Hamas).
We’ll cover the first category of civil lawsuits for terrorist attacks and other acts of international terrorism first. While foreign states around the world are broadly entitled to immunity, three federal laws work together to authorize victims of terrorist acts and their families to seek to hold foreign states liable in federal district court:
Anti-Terrorism Act (ATA)
The Anti-Terrorism Act (ATA) authorizes the filing of a civil lawsuit for “any national of the US injured in his or her person, property or business by reason of an act of international terrorism." Under the ATA, victims and families can file anti-terrorism claims against entities and individuals accused of sharing liability for terrorist attacks, and they can seek to recover treble damages plus costs and attorneys’ fees. This later provision means that clients can hire an attorney to represent them at no cost in appropriate cases.
Prior to the enactment of JASTA (more on this below), the Anti-Terrorism Act only authorized claims against persons that were primarily responsible for the victim’s trauma or death—and this meant that victims and families could only file claims in limited circumstances. However, with JASTA, foreign parties can now face claims based on theories of secondary liability, including aiding and abetting or conspiracy.
Foreign Sovereign Immunities Act (FSIA)
While the Foreign Sovereign Immunities Act (FSIA) establishes sovereign immunity against suits in federal district court for foreign states, by establishing exceptions to sovereign immunity, it also provides a roadmap for when victims and families of loved ones who have been killed can file civil lawsuits for terrorist acts.
As discussed below, JASTA substantially expanded the scope of the FSIA. As a result, today, the Anti-Terrorism Act (ATA), the Foreign Sovereign Immunities Act (FSIA), and the Justice Against Sponsors of Terrorism Act (JASTA) work together to authorize civil lawsuits for terrorist acts in far more circumstances than was authorized previously, and they allow victims and families that have sued successfully to pursue attachment and other means of collection when necessary.
Justice Against Sponsors of Terrorism Act (JASTA)
Enacted in 2016, the Justice Against Sponsors of Terrorism Act (JASTA) expanded the circumstances in which victims and families can file lawsuits for terrorist attacks and other acts of terrorism to a significant extent. This is true for acts of terrorism that occur in the United States and acts of terrorism that occur in foreign states around the world.
Under JASTA, when a terrorist organization commits an attack, torture, security breach, or human rights violation (among many other examples of terrorist acts), victims and families can sue any foreign state that shares direct or indirect responsibility for the terrorist act. This is because JASTA made three fundamental changes to federal law as it previously existed under the ATA and the FSIA:
- JASTA expanded liability for involvement in terrorist activities beyond the “primary” liability imposed under the ATA to include claims based on “secondary” liability. This includes claims based on aiding and abetting and conspiring to commit terrorist attacks and other acts of terrorism.
- JASTA expanded the FSIA’s sovereign immunity exception beyond designated state sponsors of terrorism (i.e., Iran and Syria). Under JASTA, all foreign states that provide material support to terrorist organizations or otherwise aid, abet or conspire in the commission of terrorist acts can face liability. This includes foreign states such as Israel, where the U.S. Supreme Court held that a pair of lawsuits filed by alleged victims of terrorist attacks in Israel could pursue their claims against the Palestinian Authority and the Palestine Liberation Organization.
- JASTA eliminated the “entire tort” requirement that previously existed under court decisions interpreting the FSIA. These decisions limited the FSIA’s immunity exceptions to cases in which both the injury and the terrorist act occurred in the United States. Under JASTA, foreign states can now be held liable, “regardless where the tortious act or acts of the foreign state occurred."
In summary, these three federal laws now work together to allow victims and families to fight to hold foreign states accountable in far more circumstances than they could prior to JASTA’s enactment. For those who need to fight for monetary compensation—whether for providing material support, aiding and abetting, or direct responsibility for a terrorist act—engaging legal counsel to build a case and sue on their behalf is the first step in the process.
Lawsuits Against Banks (i.e., the Arab Bank) and Other Non-Governmental Entities Under the Alien Tort Statute (ATS)
Engaging legal counsel is also the first step for individuals and families who need to sue banks and other non-governmental entities for terrorist attacks, torture, and other acts of terrorism committed in the United States or elsewhere in the world. In these cases, clients must generally work with their lawyers to pursue claims under the Alien Tort Statute (ATS). Dozens of lawsuits have been filed under the ATS in recent years, including lawsuits related to terrorist acts committed by Al Qaeda, Hamas, and other dangerous terrorist organizations.
U.S. Supreme Court: The FSIA Does Not Protect Foreign Individuals or Companies
Prior to 2010, it was unclear whether the ATS authorized lawsuits against foreign persons in light of the immunity protections afforded under the FSIA. However, the U.S. Supreme Court resolved this uncertainty in the case of Samantar v. Yousuf, 560 US 305 (2010). In Samantar, the court held that the FSIA only protects foreign states and their instrumentalities, opening the door for lawsuits against foreign individuals, foreign banks, and other foreign entities in Israel, Iran, Saudi Arabia, Syria, and other countries around the world.
These Lawsuits Can Target Acts of Violence, Torture, and Other Terrorist Acts
Similar to lawsuits under JASTA, lawsuits under the ATS can target acts of violence, torture, and all other terrorist acts in the US and abroad. They can target terrorist acts committed by all terrorist organizations, and they can target all individuals and entities that provide access to funding or otherwise directly or indirectly support terrorist activities.
Pursuing Civil Litigation Against a State Sponsor of Terrorism or Another Party that is Directly or Indirectly Responsible for a Terrorist Act
To summarize, what do you need to know if you have questions about filing a lawsuit related to an act of terrorism, either in the United States or abroad? There are two key takeaways to keep in mind.
The first is that there are several potential grounds to file terrorism-related lawsuits against foreign states, foreign banks, and other foreign individuals and entities under federal law. Sovereign immunity is not absolute—and there are exceptions that apply specifically in cases involving terrorism.
The second is that you can—and should—engage experienced legal counsel to guide you forward. These are complex cases that require significant resources and in-depth knowledge of the relevant law. At a minimum, you should be able to engage legal counsel on a contingency-fee basis; and, depending on the circumstances of your case, you may be entitled to recover your legal fees and costs if your lawsuit is successful.