che.2 Defining Terrorism in International Law

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Almog v. Arab Bank is one of the cases consolidated under the name Linde v. Arab Bank, PLC, claiming that Arab Bank is a financier of terrorist activity, brought on behalf of both U.S. and foreign citizens: survivors and family members of those killed or maimed by terrorist groups such as Hamas, the Palestinian Islamic Jihad, the Al-Aqsa Martyrs' Brigade and the Popular Front for the Liberation of Palestine. The case is brought under the Anti-Terrorism Act for its American-citizen plaintiffs and the Alien Tort Statute (ATS) which allows foreigners a federal court venue for cases alleging torts committed in violation of the law of nations, such as genocide and crimes against humanity, where those claims touch and concern the territory of the United States with sufficient force to permit jurisdiction. After its analysis of the facts and the law, the court found that the court could, and did, recognize a cause of action for the plaintiffs under the ATS.

In Saperstein v. The Palestinian Authority, on 22 December 2006, the United States District Court for the Southern District of Florida issued a decision in a civil action brought under the ATS, which alleged that the Palestinian Authority and the Palestine Liberation Organization were responsible for the murder of an Israeli citizen. The defendants brought a motion to dismiss the claim, arguing that the court lacked subject-matter and personal jurisdiction over the case and that the plaintiffs had failed to state a claim upon which relief could be granted. The plaintiffs argued that the defendants' actions constituted a war crime and a violation of the Law of Nations for the purposes of the Alien Tort Statute. The court granted the defendants' motion for dismissal on the grounds that the plaintiffs had not sufficiently established a violation of the Law of Nations to give the court subject-matter jurisdiction under the Alien Tort Statute.

Brief & Analyze

Brief each case with regard to the holding on the Alien Tort Statute in particular. After briefing the cases, discuss if the holdings are inconsistent with one another.

  • What best explains the difference in the outcomes of these two cases?
  • Is it simply that Almog asserts a claim of genocide, while Saperstein claims an act of terrorism?
  • Do the cases persuade you that genocide, but not terrorism, violates the law of nations?
  • Is there another basis for explaining the difference in outcomes?
    • If so, what is it?

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