Terrorism litigation as deterrence under international law - from protecting human rights to countering hybrid threats

This article provides a brief overview of the current state of anti-terrorism litigation under US federal law for the adjudication of international torts such as terrorism and other serious human rights violations. Corporate terrorism litigation focuses on the role and impact of both corporate and individual financial aiders and abettors of international terrorism and explores the desirability and feasibility of subjecting these non-state actors to transnational human rights litigation. The threat of international terrorism represents one of the most severe “hybrid threats” which NATO attempts to counter: hybrid threats are those posed by adversaries, with the ability to simultaneously employ conventional and non-conventional means adaptively in pursuit of their objectives (see https://transnet.act.nato.int/WISE/ACTIPT/JOUIPT/2010201 1CH/Experiment/PlanningCo/CHTExperim. The author took part in this experiment in May 2011 as NATO Rule of Law SME participant). Combating terrorism requires a holistic approach which combines hard kinetic security operations with the options of criminal prosecution and civil reparations through litigation. So called “bankrupting terrorism” lawsuits (cf Shurat HaDin Israel Law Center which uses this term to refer to USIsraeli terrorism litigation, see http://www.israellawcenter.org) refer to civil litigation which is directed against “funding” activities (eg direct payments to terrorist groups) and other forms of aiding and abetting (such as the provision of material support) qualifying as “indirect” or secondary liability of the corporate actors. Much in this area focuses on responsibility and liability of corporations such as banks (see the case Arab Bank I, 384 F.Supp. 2d 580), NGOs and religious charity organisations within their respective litigation context (cf the case of Boim v Quranic Literacy Inst, 291 F.3d 1000, 1001 –1003 (7th Cir.2002), also referred to as Boim I). Such “indirect liability” litigation should not be confused with litigation which is directed against the terrorist group itself such as al Qaeda or Hamas (See Boim litigation cases consisting of the cases Boim I, Boim v Holy Land Found. for Relief Dev, Nos. 05- 1815,05-1816,05-1821,05-1822 (7th Cir. 2007) and Boim III 549 F.3d 685, 687 97th cir.2008). This short article aims to provide a brief overview of the potential role US styled terrorism litigation can play in countering threats of terrorism as one of the more serious hybrid threats.