GERSON DOC PM TERRORISM AND GENOCIDE DETERMINING ACCOUNTABILITY AND LIABILITY

GERSON.DOC 9/20/2005 2:56:24 PM TERRORISM AND GENOCIDE: DETERMINING ACCOUNTABILITY AND LIABILITY Allan Gerson∗ United States courts are being increasingly called upon to deal with justice for victims of terrorism and genocide: holding the perpetrators and their abettors accountable and assessing the proper measure of damages.1 In dealing with damages— ∗ J.D., New York University School of Law; LL.M., Hebrew University of Jerusalem; J.S.D., Yale Law School; Chairman of the Gerson International Law Group, PLLC. The author has served as Counsel to the U.S. Ambassador to the United Nations, Deputy Assistant Attorney General for Legal Counsel, and Counselor for International Affairs with the U.S. Department of Justice. He has also served as a professor of law and has authored THE KIRKPATRICK MISSION: DIPLOMACY WITHOUT APOLOGY - AMERICA AT THE UNITED NATIONS, 1981 TO 1985 (1991), THE PRICE OF TERROR (with Jerry Adler, 2001), and PRIVATIZING PEACE: FROM CONFLICT TO SECURITY (with Nat Colletta, 2002). 1. See, e.g., Kilburn v. Socialist People's Libyan Arab Jamahiriya, 376 F.3d 1123 (D.C. Cir. 2004) (refusing to dismiss wrongful death action brought on behalf of U.S. citizen tortured and murdered by Libya-sponsored terrorist group); Boim v. Quranic Literacy Inst., 291 F.3d 1000 (7th Cir. 2002) (refusing to dismiss suit by parents of U.S. citizen murdered in Israel); Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995) (reversing dismissal of suit against Bosnian-Serb leader accused of war crimes atrocities); Linde v. Arab Bank, PLC, 353 F. Supp. 2d 327 (E.D.N.Y. 2004) (denying preliminary injunction in suit by victims of terrorist attacks in Israel); Ungar v. Palestinian Auth., 325 F. Supp. 2d 15 (D.R.I. 2004) (entering default judgment against Palestinian Authority and Yasser Arafat personally, dismissing the defendants’ claims of nonjusticiability on political grounds and lack of jurisdiction on sovereign immunity grounds); Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F. Supp. 2d 289 (S.D.N.Y. 2003) (described infra); Burnett v. Al Baraka Inv. and Dev. Corp., 274 F. Supp. 2d 86 (D.D.C. 2003) (refusing to dismiss action by over 2000 victims of 9/11 attacks against almost 200 defendants), dismissed in part by Burnett v. Al Baraka Inv. and Dev. Corp., 292 F. Supp. 2d 9 (S.D.N.Y. 2003) (dismissing action against certain defendants), dismissed in part by Burnett v. Al Baraka Inv. and Dev. Corp., 349 F. Supp. 2d 765 (S.D.N.Y. 2005) (dismissing action against certain other defendants); Cronin v. Islamic Republic of Iran, 238 F. Supp. 2d 232 (D.D.C. 2002) (entering default judgment in favor of student who had been kidnapped, beaten, and tortured by terrorist paramilitary organization); Dammarell v. Islamic Republic of Iran, 281 F. Supp. 2d 185 (D.D.C. 2002) (entering judgment for victims of 1983 bombing of United States Embassy in Beirut, Lebanon); Flatow v. Islamic 79 GERSON.DOC 9/20/2005 2:56:24 PM THOMAS JEFFERSON LAW REVIEW [Vol. 28:79 unbearable pain and suffering, scars that will not heal, and hearts forever torn asunder—one person’s pain must be measured against another’s. This is no easy task, yet one that lawyers and judges are regularly called upon to perform. In this calculus, genocide emerges as the most horrific. Terror’s victims can still cling to community and a belief that government hears their cries. In genocide, the assault on the person is compounded by the destruction of community. Recently, charges of terrorism and genocide have coalesced. This presents unique issues of accountability and damages, especially where foreign governments and officials are implicated. My exposure to this emerging field began in 1979. I had joined the newly established U.S. Department of Justice Office of Special Investigations (OSI). Its task was to find and then strip alleged Nazi collaborators of their U.S. citizenship (“denaturalization”). On the grounds that they had entered the United States illegally through misrepresentation of their true identities and wartime record, the alleged collaborators (mainly from East European countries) would then be subjected to deportation—usually to the USSR, a short trial, and often a firing squad. I was one of the trial attorneys handling OSI’s first major case, United States v. Osidach.2 The defendant, the police chief of Rawa Ruska (a town in the Ukraine adjoining my parents’ home town of Zamosc, Poland) stood accused of having masterminded the roundup of Rawa Ruska’s eighteen thousand Jews for deportation to the Belzec death camp.3 (Belzec was equidistant between Rawa Ruska and Zamosc.) Like other cases at OSI, Osidach dramatized the role facilitators played in perpetration of the Holocaust. Individuals of every stripe and color—police chiefs, clerics, mayors, petty Republic of Iran, 999 F. Supp. 1 (D.D.C. 1998), affirmed in part, vacated in part by Flatow v. Islamic Republic of Iran, 305 F.3d 1249 (D.C. Cir. 2002) (entering default judgment in wrongful death action in favor of father of terrorist bombing victim). Increasingly, the Alien Tort Claims Act, 28 U.S.C. § 1350, is used as a basis of jurisdiction. See, e.g., Cabello v. Fernandez-Larios, 402 F.3d 1148 (11th Cir. 2005); Flores v. S. Peru Copper Corp., 343 F.3d 140 (2d Cir. 2003); Ford v. Garcia, 289 F.3d 1283 (11th Cir. 2002); Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980); Mehinovic v. Vuckovic, 198 F. Supp. 2d 1322 (N.D. Ga. 2002); Wiwa v. Royal Dutch Petrol. Co., No. 96 Civ. 8386, 2002 U.S. Dist. LEXIS 3293 (S.D.N.Y. Feb. 28, 2002). 2. 513 F. Supp. 51 (E.D. Pa. 1981). 3. Id. at 62-63. 80 GERSON.DOC 9/20/2005 2:56:24 PM 2005] DETERMINING ACCOUNTABILITY AND LIABILITY and senior government officials—lent themselves to the Final Solution. Afterward, each seemed to have his own rationale to support their exoneration. Most popular was the refrain that the Jews were doomed anyway. By this logic, whatever assistance they provided was deemed insignificant. Osidach, for example, cited the promise of self-determination and freedom for his beloved Ukraine from the Soviet yoke of oppression as reason enough to cooperate with the Nazis. As from 1942 to 1943 the fate of Europe’s Jews seemed sealed, Osidach claimed he was but an inconsequential cog in their destruction. The U.S. District Court viewed matters differently, and stripped Osidach of his U.S. citizenship.4 He died before deportation could be effectuated. Two decades later, upon entering private practice (after stints as Counsel to the U.S. Delegation to the United Nations and as Deputy Assistant U.S. Attorney General) I again faced arguments similar to those Osidach raised. This time, the refrain came from those charged with helping to finance terrorism, claiming that what they did hardly mattered. Moreover, they claimed, in any event they were immune from liability, as their actions were undertaken in a “sovereign” capacity. Thus, in the 1988 bombing of Pan Am flight 103 over Lockerbie, Scotland, killing all of the 259 passengers aboard and 11 people on the ground,5 Libya invoked sovereign immunity to shield it from accountability and liability.6 A decade later, a three-judge tribunal of Scottish judges sitting in the Netherlands convicted Abdel Basset Ali alMegrahi, a Libyan national security official, of having planted the sophisticated sixteen-ounce Semtex plastic explosive which took down the 200-ton jumbo jet.7 No one with knowledge of the region believed that Libya’s leader, Colonel Muammar 4. Id. at 107. 5. For an in-depth account of the families’ long quest for justice, see ALLAN GERSON & JERRY ADLER, THE PRICE OF TERROR (2001). 6. Smith v. Socialist People's Libyan Arab Jamahiriya, 886 F. Supp. 306, 309 (E.D.N.Y. 1995), affirmed, 101 F.3d 239 (2d Cir. 1996). 7. See HM Advocate v. Al-Megrahi, No. 1475/99 (Jan. 31, 2001) (H.C.J., Scot.), http://www.scotcourts.gov.uk/opinions/lockerbie.html; HM Advocate v. Al-Megrahi, 2002 J.C. 38 (2001) (Scot.); see also, e.g., Donald G. McNeil Jr., Libyan Convicted by Scottish Court in ’88 Pan Am Blast, N.Y. TIMES, February 1, 2001, at A1. 81 GERSON.DOC 9/20/2005 2:56:24 PM THOMAS JEFFERSON LAW REVIEW [Vol. 28:79 Qaddafi, could have been unaware of what al-Megrahi was plotting against the flagship airline of the United States. But foreign leaders, except for the hapless Manuel Noriega (captured by U.S. forces in Panama in 1992 after his fall from office), are not hauled into U.S. courts to answer for past crimes. As to Qaddafi, he had merely to “accept responsibility” without admitting culpability and all would be forgotten, if not forgiven. In 2003, Libya entered into a $2.7 billion settlement ($10 million per family) accompanied with the proviso that it did not constitute an admission of culpability.8 The United Nations, and then the United States (for the most part), lifted economic sanctions.9 Trade relations were quickly resumed. Visiting heads of state made their way to Tripoli.10 Clearly, Colonel Qaddafi’s wrongdoing hardly served as an example to foreign governmental leaders that sovereign immunity will not shield them from responsibility for mass murder. Sadly, it was the Executive Branch of the United States that asked the federal courts to honor Libya’s sovereign immunity defense rather than face the prospect of reciprocal accountability.11 8. Libya’s acceptance of responsibility consisted of a letter presented to the president of the United Nations Security Council, stating that Libya “has facilitated the bringing to justice of the two suspects charged with the bombing of Pan Am 103 and accepts responsibility for the actions of its officials.” See, e.g., Felicity Barringer, Libya Admits Culpability In Crash of Pan Am Plane, N.Y. TIMES, Aug. 16, 2003, at A1. Families of the victims often face an agonizing question about whether to settle or press for judicial vindication with all its attendant risks. This question must be resolved by each individual plaintiff. See generally THE PRICE OF TERROR, supra note 5, at 298-302. 9. United Nations sanctions were lifted less than a month after Libya’s acceptance of responsibility. Felicity Barringer, Pan Am 103's Bereaved Watch U.N. Lift Libya Sanctions, N.Y. TIMES, Sept. 13, 2003, at A2. The United States began lifting sanctions a few months later. David Sanger, U.S. Lifts Bans on Libyan Trade, But Limits on Diplomacy Remain, N.Y. TIMES, Apr. 24, 2004, at A1. 10. Qaddafi has, among other world leaders, lunched with the president of the European Commission. Matthew L. Wald, How Qaddafi Became The Toast of Brussels, N.Y. TIMES, May 2, 2004, at D3. 11. See Brief for the United States as Amici Curiae Supporting Respondents, Smith v. Socialist People's Libyan Arab Jamahiriya, 101 F.3d 239 (2d Cir. 1996) (Nos. 95-7930, 95-7931, 95-7942). Regarding personal immunity of sitting heads of state or senior officials’ immunity from criminal jurisdiction as opposed to civil liability, see Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.) 2002 I.C.J. 121 (Feb. 14), and the discussion in Steven R. Ratner, Belgium’s War Crimes Statute: A Postmortem, 97 AM. J. INT’L L. 888 (2003). Note that the 1991 U.S. and U.K. indictment of Libyan officials for the bombing of Pan Am 103 did not directly name Colonel Qaddafi. The U.S. has 82 GERSON.DOC 9/20/2005 2:56:24 PM 2005] DETERMINING ACCOUNTABILITY AND LIABILITY The difficulties encountered in holding foreign leaders accountable thus called for a realignment of focus on institutions and individuals rather than on “sovereign” governments as the centerpiece of counter- terrorism suits. In the summer of 2002, I joined with attorney Ron Motley, who had been principally responsible for massive tobacco litigation awards, in filing suit on behalf of over 2000 families of victims of the 9/11 attacks. Various Saudi interests accused of having knowingly facilitated transfers of money to Al Qaeda were named as the principal defendants.12 The Kingdom of Saudi Arabia was not named in the complaint, largely because of “sovereign immunity” considerations. The same desire to avoid the shoals of sovereign immunity guided the decision by plaintiffs’ counsel in the Almog v. Arab Bank case,13 filed on December 21, 2004, to not name as defendants governments who might have been complicit. The Almog suit, representing nearly 1,000 families of victims of Hamas attacks, charges the Arab Bank (headquartered in Amman, Jordan, with offices in New York and assets of over $25 billion) with complicity in genocidal terrorism. It is alleged to have knowingly served as the paymaster to families of Hamasdirected suicide bombers. It is charged with having either known directly, or been in a position where it should have known, that by forwarding money to families of suicide bombers it was encouraging such bombings. Hopefully, the result will be to deter other potential facilitators. The Almog v. Arab Bank lawsuit is also novel insofar as terrorism and genocide are linked. Unlike the Pan Am taken a position on head of state immunity in U.S. courts; see Wei Ye v. Jiang Zemin, 383 F.3d 620 (7th Cir. 2004) (Executive Branch’s suggestion as to immunity of head of state was conclusive); Tachonia v. United States, 386 F.3d 205 (2d Cir. 2004) (considering but not ruling on head of state immunity issue). 12. See Burnett v. Al Baraka Inv. and Dev. Corp., 274 F. Supp. 2d 86 (D.D.C. 2002). The Saudi interests named as defendants include three Saudi princes, seven banks, and several international charities. The companion cases are Barrera v. al Qaida Islamic Army (S.D.N.Y. 2003); Federal Ins. v. al Qaida (S.D.N.Y. 2003); Vigilant Ins. v. Kingdom of Saudi Arabia, No. 03 Civ. 8591 (S.D.N.Y. 2003); Ashton v. al Qaeda Islamic Army, No. 02 Civ. 6977 (S.D.N.Y. 2002); Salvo v. al Qaeda Islamic Army, No. 03 Civ. 5071 (S.D.N.Y. 2003); Tremsky v. Osama bin Laden, No. 02 Civ. 7300 (S.D.N.Y. 2002). The cases are consolidated as MDL 1570 (S.D.N.Y.). 13. Almog v. Arab Bank PLC, No. 04 Civ. 045564 (E.D.N.Y. Dec. 21, 2004). 83 GERSON.DOC 9/20/2005 2:56:24 PM THOMAS JEFFERSON LAW REVIEW [Vol. 28:79 103/Lockerbie case, or the lawsuit currently pending on behalf of families of 9/11, the Arab Bank case brings us back to the Judgment of the Nuremberg War Tribunals of Major Nazi War Criminals. The last case therein adjudicated, known as the Ministries case or Bankers case,14 involved Dresdner Bank and Reichsbank officials who were sentenced to up to seven years in jail for their role in coordinating the disposal of money and goods taken from victims of the Nazis.15 Despite the officials’ denial that they knew nothing of the Final Solution implemented by their SS and Gestapo clients, the bankers were deemed as a matter of law to have “known.”16 Until recently, Nuremberg precedent had not been cited by U.S. courts as a basis for civil liability. Then, in March of 2003, the Nuremberg precedent resurfaced in a landmark decision, Presbyterian Church of Sudan v. Talisman Energy, Inc.17 Talisman, a large Canadian oil and natural gas extraction company, was sued for facilitating genocidal terrorism in the 14. United States v. Von Weizsaecker, 12-14 TRIALS OF WAR CRIMINALS BEFORE THE NUREMBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW NO. 10 (1949). 15. Id. at vol. 14, 784, 863, 868. Rasche was found guilty of spoliation of Czech and Polish assets. Id. at 784. A deputy of the German Reichsbank, Emil Puhl, was also convicted of coordinating the deposit of gold, jewelry, and foreign currency taken from Nazi victims. Id. at 609-21. In Puhl’s case, the tribunal found that [w]hat was done was pursuant to a governmental policy, and the thefts were part of a program of extermination and were one of its objectives. It would be a strange doctrine indeed, if, where part of the plan and one of the objectives of murder was to obtain the property of the victim, even to the extent of using the hair from his head and the gold of his mouth, he who knowingly took part in disposing of the loot must be exonerated and held not guilty as a participant in the murder plan. Without doubt all such acts are crimes against humanity and he who participates or plays a consenting part therein is guilty of a crime against humanity. Id. at volume 14, 611. See also Anita Ramasastry, Secrets and Lies? Swiss Banks and International Human Rights, 31 VAND. J. TRANSNAT’L L. 325, 413-20 (1998). 16. Id. at 622 (“Bankers do not approve or make loans in the number and amount made by the Dresdner Bank without ascertaining, having, or obtaining information or knowledge as to the purpose for which the loan is sought, and how it is to be used. It is inconceivable to us that the defendant did not possess that knowledge, and we find that he did.”). However, despite Rasche’s knowledge, the tribunal declined to hold him criminally liable. Id. 17. 244 F. Supp. 2d 289 (S.D.N.Y. 2003). 84 GERSON.DOC 9/20/2005 2:56:24 PM 2005] DETERMINING ACCOUNTABILITY AND LIABILITY Sudan.18 The complaint alleged Talisman had built airfields and roads intended for use by the Sudanese Government, which was at the time engaged in a genocidal war against the Muslim population of Southern Sudan.19 Talisman was also accused of transferring to the Sudanese government revenues obtained from oil rigs established through the displacement and “ethnic cleansing” of the Southern Sudanese population.20 Talisman objected to the exercise of jurisdiction by United States courts over an allegedly non-U.S. matter.21 Talisman claimed that, in any event, it had no knowledge of the Sudanese government’s ethnic cleansing campaign, and that the ethnic cleansing would have occurred regardless of what Talisman did.22 The District Court, claiming jurisdiction under the Alien Tort Claims Act,23 dismissed Talisman’s arguments.24 Citing (among other sources) the Nuremberg precedent,25 it ruled the plaintiffs had pleaded a prima facie violation of “the law of nations,” as required by the Act.26 Moreover, the Court, applying Nuremberg precedent, ruled that actual knowledge of the genocidal activities did not have to be shown; constructive knowledge, which could be inferred from the circumstances, was deemed sufficient.27 The Talisman Energy ruling, in dismissing 18. Id. at 296. 19. Id. at 299, 301. 20. Id. at 300-301. The complaint alleged that thousands of villages and at least seventeen churches were destroyed to make way for Talisman’s oil extraction activities, and also that Sudanese troops assigned to protect Talisman’s oil fields participated in genocidal activities. Id. at 301. 21. Id. at 306. 22. Answer to Plaintiff’s Second Amended Class Action Complaint, Presbyterian Church of the Sudan v. Talisman Energy, Inc., 244 F. Supp. 2d 289 (S.D.N.Y. 2003) (No. 01 Civ. 9882). 23. 28 U.S.C. § 1350 (2004). 24. Talisman, 244 F. Supp. 2d at 296. American courts have traditionally stayed clear of navigating the shoals of international law to determine corporate liability for human rights violations, and have usually shied away from even asserting jurisdiction. However, the Talisman case is a sign that courts have begun to lose some of the judicial inhibitions that have prevented a more vigorous approach to corporate irresponsibility. Talisman’s claim that international law had not advanced to the stage where corporations can be held liable for aiding and abetting murder was rejected. 25. Id. at 315-16 (citing Flick case, I.G. Farben case, and Krupp case); id. at 324 (citing I.G. Farben case); id at 333 (citing Justice case). 26. Id. at 319. 27. Id. at 316 (“The Nuremberg precedent cited above is particularly 85 GERSON.DOC 9/20/2005 2:56:24 PM THOMAS JEFFERSON LAW REVIEW [Vol. 28:79 motions for summary judgment, thus cast a wide net for holding individuals and corporations liable for the facilitation of terrorism and genocide. Talisman subsequently moved for reversal and summary judgment on the pleadings,28 citing the United States Supreme Court’s recent ruling in Sosa v. Alvarez-Machain.29 The district court affirmed the earlier ruling, deeming “misguided” Talisman’s argument that “corporate liability under international law is not sufficiently accepted in international law.”30 The court reaffirmed that corporations can be held liable for gross human rights violations because claims brought under the Alien Tort Claims Act relates to genocide and crimes against humanity.31 Talisman’s interpretation of the Supreme Court’s holding in Alvarez-Machain (finding the United States government not liable for the violation of customary international law in the kidnapping and detention of Sosa, a Mexican wrongly assumed to be responsible for the death of an American DEA agent) was deemed a misreading of the Court’s intent.32 Finally, citing the recent ruling in In re: Agent Orange Product Liability Litigation,33 the court held that corporate liability extends to secondary liability: aiding and abetting.34 As we look toward the future, it becomes clear that the United States courts will have to increasingly grapple with the circumstances in which complicity in terrorism engenders civil liability. The horrors of Darfur and Islamic Jihad have come inside the courtroom. How judges rule in these cases will set a moral and legal standard for years to come. In this regard, courts might do well to take note of the Congressional testimony significant not merely because it constitutes a basis for finding corporate liability for violations of international law, but because the language ascribes to the corporations involved the necessary mens rea for the commission of war crimes and crimes against humanity . . . .”); id. at 324 (“Such knowledge may be actual or constructive.”). 28. Presbyterian Church of Sudan v. Talisman Energy, Inc. No. 01 Civ. 9882, 2005 U.S. Dist. LEXIS 11368, *1-2 (S.D.N.Y. 2005). 29. 542 U.S. 692 (2004). 30. Talisman Energy, 2005 U.S. Dist. LEXIS 11368 at *9. 31. Id. at *3. 32. Id. at *11-12. 33. MDL No. 381, 04-CV-400, 2005 U.S. Dist. LEXIS 3644 (E.D.N.Y. Mar. 28, 2005). 34. Talisman Energy, 2005 U.S. Dist. LEXIS 11368 at *26. 86 GERSON.DOC 9/20/2005 2:56:24 PM 2005] DETERMINING ACCOUNTABILITY AND LIABILITY by David Aufhauser, the former General Counsel of the Treasury Department and chair of the Interagency Task Force on Terrorism: We think it is critical that governments move now to stop the flow of funds to HAMAS, a terrorist organization that has the conceit and audacity to proclaim with pride that it sends suicide bombers into buses and into public plazas to kill innocents with the aim of destroying any chance for progress toward peace between the Israelis and Palestinians. Funds flowing to HAMAS fuel this terror. Again, we think if you stop the money, you go a long way toward stopping the terror. No matter how terrible the plight of the Palestinian people, there can be no justification for the killing of innocents. In our view, toleration of such terror by anyone is nothing short of complicity.35 That is as good a definition of complicity as I have heard. At stake is whether an ethos of accountability or political expediency will prevail in U.S. courts. Where economic and political interests come to the fore, the U.S. government’s capacity to act effectively on behalf of victims of terrorism or genocide becomes severely circumscribed. To fill this vacuum, courts will need to rise to the challenge of meting out justice for the families of victims of the scourge of the twenty-first century: international terrorism, often with genocidal overtones.36 35. Government Efforts to Stop Terrorist Funding: Hearing Before the Subcomm. on Oversight and Investigations of the H. Fin. Serv. Comm., 108th Cong. (2003) (written testimony of David D. Aufhauser, General Counsel, Department of the Treasury). For a more recent U.S. application of the need to sever the connection with terrorist financing and its treatment as aiding and abetting terrorism in a criminal context, see the statement by U.S. Attorney Roslynn R. Mauskopf after the sentencing of Mohammed Al Hassan Almoayad: “Those who finance terrorist attacks, and rejoice in the murder of innocent victims, are no different from those who plant the bombs or carry the backpacks. . . . Money is the lifeblood of terrorism, and this master terrorist financier richly deserves the maximum sentence imposed today.” Anthony M. Destefano, Maximum Sentence: Judge Cites Terror of Sept. 11 as He Gives a Yemeni Cleric 75 Years for Plotting to Help al-Qaida, Hamas, NEWSDAY (N.Y.), July 29, 2005, at A8. 36. As this article goes to press, two significant court decisions favoring claims for accountability against those aiding and abetting terrorism and/or genocide have just been released. On Sept. 2, 2005, Judge Gershon of the U.S. District Court for the Eastern District of New York denied the bulk of Arab Bank’s motions to dismiss in the Linde, Coulter, and Litle cases (see supra n.1). Linde v. Arab Bank PLC, No. 04-CV-2799, 2005 WL 2108690 (E.D.N.Y. Sept. 2, 2005) (the court did dismiss Counts Five and Eight of the Linde Complaint; 87 GERSON.DOC 9/20/2005 2:56:24 PM THOMAS JEFFERSON LAW REVIEW [Vol. 28:79 Count Seven of the Litle Complaint; and Count Five of the Coulter Complaint). The court expressly rejected the view that in order to state a claim under the Anti-Terrorism Act (ATA), 18 U.S.C. § 2333 et seq., the plaintiffs must show that each individual attack can be directly connected to a specific transaction involving Arab Bank. Id. at *6 (“Defendant’s argument that plaintiffs must allege that they were injured by reason of Arab Bank’s conduct simply misstates the statutory requirement.”). The proper standard, the court held, is “whether the Bank can be held liable, directly or secondarily, for its conduct in allegedly assisting the terrorists . . . .” Id. The court further held that an act may violate the ATA “without a showing that the funds were actually used to carry out the predicate act of terrorism,” id. at *7, and that the ATA “does not limit the imposition of civil liability only to those who directly engage in terrorist acts.” Id. at *8. The court then held specifically that both aiding and abetting liability and civil conspiracy liability are available under the ATA. Id. The court rejected the approach set out in Central Bank of Denver v. First Interstate Bank of Denver, 511 U.S. 164 (1994), and advocated by Arab Bank as the appropriate standard for laying out the scope of civil aiding and abetting liability. Id. at *8-9. The Court held that: It is not necessary for the plaintiffs to allege that Arab Bank either planned, or intended, or even knew about the particular act which injured the plaintiff. . . . Administering the death and dismemberment benefit plan further supports not only the existence of an agreement but Arab Bank’s knowing and intentional participation in the agreement’s illegal goals. No more is required. Id. at *9. The court deferred until a later date ruling directly on the Almog v. Arab Bank case involving Israeli citizens bringing claims under the ATA. Id. at *1 n.1. In addition, the U.S. District Court for the Southern District of New York refused to grant the Talisman Energy defendants’ motion for judgment on the pleadings on the basis of international comity, foreign policy, or political question grounds. Presbyterian Church of Sudan v. Talisman Energy, Inc., No. 01-Civ.-9882, 2005 WL 2082846 (S.D.N.Y. Aug. 30, 2005) (see discussion supra p. 84.). The court held that the Judicial Branch need not automatically defer to Executive Branch determinations or those of a foreign nation, that foreign policy objectives will be compromised by permitting victims’ civil action suits predicated on terrorism or genocide. Id. at *3. Instead, the court ruled that the victims’ allegations of aiding and abetting genocide overrule, absent specific proof, mere claims of intangible impairments to diplomacy. Id. at *7. 88