Terrorism and The Extraterritorial Application of State Tort Laws

by Roger Alford

A federal district court in Washington D.C. last week rendered a decision against Iran and the Iranian Ministry of Intelligence and Security for a terrorist bombing in Jerusalem that killed Marla Bennett. Details about the July 2002 terrorist attack on Hebrew University that killed nine are available at this moving victims memorial website.

In Bennett v. Iran, Marla Bennett’s parents and sister brought claims under California tort law for Iran’s and MOI’s material support and assistance to Hezbollah. They alleged claims of wrongful death and intentional infliction of emotional distress.

The court awarded $400,000 in the Bennett’s wrongful death claim and $7.5 million for intentional infliction of emotional distress. The court ruled, “Here, the laws of California govern the claims brought by plaintiffs because each plaintiff and the deceased was a domiciliary of California at the time of the attack. Upon examination of the law of California, the Court concludes that California provides a cause of action against private individuals for the kind of acts that defendants allegedly committed. Plaintiffs seek damages for wrongful death and for intentional infliction of emotional distress, both torts for which private individuals may face liability.”

As much as I want Iran to pay for its material support of terrorist attacks such as this, I just don’t see how a federal court can apply California state tort laws extraterritorially to punish foreign tortfeasors for torts committed on foreign soil. At a minimum the application of conflict of laws principles should rule out the application of California state tort laws in such cases.

It is becomming increasingly common that state torts laws are the preferred cause of action used in Flatow Amendment FSIA claims against state sponsors of terrorism. These terrorist nations don’t appear to defend themselves and in the default judgment analysis it seems that no one is considering the presumption against extraterritoriality that should apply in these cases.

If state tort laws apply to compensate terrorist victims in Jerusalem, then what is to prevent using our state tort laws against foreign defendants for routine torts committed abroad by private parties? Provided you can overcome the jurisdiction hurdles, cases like Bennett v. Iran would lead one to believe that any tort committed anywhere in the world is subject to the state tort laws of the injured party. The obvious solution is to presume that state tort laws do not apply extraterritorially, which hopefully would prompt Congress to create a federal cause of action for terrorism.

(Incidentially, the definitive law review article on the extraterritorial application of state tort laws to combat terrorism has yet to be written. If there are any takers, I would love to read a forthcoming article).


11 Responses

  1. Roger,

    As far as I can tell, there are several distinct questions here. The first is whether a state is entitled to extend its own tort laws to a an act committed abroad, without a significant nexus to that particular state. That is an issue of whether prescriptive universal civil jurisdiction is at all recognized in international law. A moderate view would be that it is, to the extent universal criminal jurisdiction is so recognized — see, e.g., Donovan and Robers, The Emerging Recognition of Universal Civil Jurisdiction, 100 AJIL 142 (2006).

    The second question is what to do when two tort laws apply to the same situation, e.g. the tort law of a US state and the tort law of Israel. States usually avoid this type of situations by making rules on the conflict of laws, as you point out. But if universal civil jurisdiction exists in international law, there is NO international obligation on a state to employ rules on conflict of laws, which are themselves usually mandated by a state’s own internal law. So, there is nothing inherently wrong in having the laws of two states apply at the same time – the same thing happens with universal criminal jurisdiction – but of course the courts of each state will, if a case is initiated, usually apply their own law.

    The third question is what constraints apply on the enforcement of universal civil jurisdiction, such as immunities, comity considerations with the courts of other nations, and so on.

    This schemata makes perfect sense, much more than the Alien Tort Claims Act, the rationale of which I must admitted I never entirely understood. The ATCA purports merely to establish adjudicatory jurisdiction of US courts for violations of international law, without actually prescribing the substantive law of torts that they would be applying, but making a renvoi to international law.

    And that, to me, is the fundamental problem – international law 200 years ago, as well as today, does not recognize the civil responsibility of individuals for any wrongful act, since these individuals are themselves not subject to international law. Only in the past sixty years did international law directly bind individuals with criminal law obligations, but it still hasn’t done so with civil ones. If I torture somebody, I am criminally responsible at both the international and the domestic level, but I have no international obligation to pay compensation to my victims. Nonetheless, domestic law might impose such an obligation on me, under any ground of prescriptive jurisdiction usually recognized. Of course, the international civil responsibility of individuals might evolve over time, see, e.g., Article 75 of the Rome Statute of the ICC.

  2. Marko,

    Didn’t the 18th &19th century law of nations governing piracy directly impose legal obigations both criminal and non-criminal upon non-state actors? For example, the international law of prize held that the captain and crew of a private vessel that seized captured a pirate vessel could claim a portion of the value of the seized ship and its cargo in a salvage (non-criminal) claim. Granted that there may have been no international tribunal for enforcing such international legal obligations in some cases, but the international legal duty of enforcement would have been imposed upon the state that could exercise jurisdiction over the individual.

    Francisco Forrest Martin

  3. Marko,

    You are focusing on the background issue of whether international law permits a state tort law to apply extraterritorially. As you suggest, the universality principle would likely kick in to permit a state to punish these foreign activities.

    I am focusing on legislative intent and the presumption against extraterritoriality. Absent legislative intent to the contrary, we assume that state legislatures do not want their tort laws to apply to torts committed abroad. That presumption has consistently been ignored in these terrorism cases.


  4. Roger,

    I agree entirely – matters as serious as the extraterritorial application of tort law should be expressly dealt with by the legislature. Judicial innovation really has little place here. I have little doubt that the California court’s decision is as flawed as you say it is. However, if the Californian legislature acted to extend the application of its tort laws to terrorist acts committed abroad, my feeling is that it would be legal under international law.


    When it comes to piracy, which is often called the first international crime, I again don’t think that classical international law imposed any obligations on the individuals concerned. It merely allowed states, and then obliged them, to criminalize piracy. I’m not aware either of a criminal prosecution of a pirate, or of a prize claim, which was submitted to any tribunal, international or domestic, on the basis of international law alone. You still needed domestic legislation. You emphatically don’t need it, however, for the ‘true’ international crimes, namely genocide, crimes against humanity, and war crimes.

  5. I should have mentioned this in my original post, but in case it is not clear to anyone, (1) the ATS does not apply in this case because the victim was an American, (2) the Torture Victim Protection Act (TVPA) does not apply because it has been interpreted to preclude claims against sovereigns, and (3) the FSIA Flatow Amendment has been interpreted to be a jurisdictional grant of authority only. Thus, identifying a cause of action has been problematic for claims by American victims against sovereign state sponsors of terrorism. This explains why plaintiffs are pursuing state tort laws for terrorist acts committed abroad.


  6. Marko,

    In Penhallow v. Doane’s Administrators, the U.S. Court of Appeals in Cases of Capture and later the U.S. Supreme Court both sitting as international courts applied the law of nations governing prize — and rejected the applicability of state law.

    Francisco Forrest Martin

  7. Francisco,

    Sorry, I am linguistically unable to plow through all that archaic English in any reasonable time – as far as I can see, the issue in the case that you cite is whether acts by the state of New Hampshire were in conformity with acts of Congress. The courts in question were not sitting as ‘international courts’, but as admiralty courts, a category long known in the (English) common law, if memory serves. An admiralty court, as far as I know, is not applying the international law of the sea, but the admiralty or maritime law of the nation state.

    Anyway, nowhere in my skimming of this case was I able to find a reference to the issue whether, at the time, individuals had any direct rights or obligations under international law. Please do provide a pin cite to the contrary.

    FWIW, I have no objection at all to individuals, as opposed to states, having rights and obligations under international law, it’s just that historically they did not. That’s why the ATCA is a very, very strange statute, as it is an exercise of adjudicatory jurisdiction (i.e. it gives US court jurisdiction over certain claims) without a previous exercise of prescriptive jurisdiction (i.e. it does not define the torts, but makes a renvoi to the law of nations, which even today does not recognize any torts at all). Of course, as Roger noted, the ATCA has no direct bearing to the Californian case discussed in his original post.

  8. I’ll stop by just to register my usual disapproval with the ATCA (uninvolved in this case, as Milanovic notes) and related overreaches of jurisdiction.

    What masquerades as an extension of International Law and order is instead a license to turn international agreements into the next cash cow for trial lawyers, complete with country-hopping venue shopping.

    Nothing quite like collecting frozen assets from a client who isn’t even there to defend themselves. It threatens to provide a negative incentive for future treaties as well.

  9. Marko:

    Both the U.S. Courts of Appeal in Cases of Capture established under the Articles of Confederation (a treaty) and the U.S. Supreme Court established under the Constitution (also a treaty) were sitting as international courts. See Penhallow v. Doane’s Administrators, 3 U.S. (3 Dall.) 54, 91 (1795) (“A prize court is, in effect, a court of all the nations in the world, because all persons, in every part of the world, are concluded by its sentences.”). Admiralty law is not merely municipal law. Congressional acts were a species of international law implementing the Articles and Constitution. The law of nations governing prize obviously recognized individual rights and duties in that crews had a right to a portion of the salvage and had a duty to submit their claim to an admiralty court. It appears that you are misconceptualizing the 18th century law of nations, as Bentham, Oppenheim, and Bork have done by conflating jus gentium with jus inter gentes. As James Wilson put it: “Some seem to have thought, that [the law of nations] respects and regulates the conduct of nations only in their intercourse with each other. A very important branch of this law – that containing the duties which a nation owes itself – seems to have escaped their attention. ‘The general principle . . . of the law of nations, is nothing more than the general law of sociability, which obliges nations to the same duties as are prescribed to individuals.'” Recall also that the lex mercatoria was a subset of the law of nations.

    Finally, regarding your puzzlement over the ATS’ use of the word “tort” . . . . I believe that Congress used “tort” to distinguish ATS claims from other “harms” (the original meaning of “torts”) that were judicially remediable only in admiralty. In other words, the ATS extends judicial protection to victims of harms committed in violation of law of nations that occurred on land. The ATS’ use of “tort” also ensured that juries would decide these cases that were not otherwise available in admiralty (which earlier had caused much consternation among the states in cases of capture before the federal courts of appeal).

    Francisco Forrest Martin

  10. Francisco,

    Again, sorry, but your starting premise that the US Constitution is a treaty is not something that we can agree on. Furthermore, the quote from the judgment that you provide is rhetorical flourish, not a pronouncement on whether individuals historically had rights under international law.

    As for admiralty law, allow me to quote that most trustworthy of sources, Wikipedia:

    Admiralty law (also referred to as maritime law) is a distinct body of law which governs maritime questions and offenses. It is a body of private international law governing the relationships between private entities which operate vessels on the oceans. It is distinguished from the Law of the Sea, which is a body of public international law dealing with navigational rights, mineral rights, jurisdiction over coastal waters and international law governing relationships between nations.

    So, again, my only point is that individuals, until relatively recently, had no rights under public international law, of which merchant customs and conflict of laws rules were emphatically NOT a part. All prize claims were resolved under resolutions passed by Congress, not pursuant to some general international customary rule. Today, thankfully, individuals DO have rights under public international law – I have a right not to be tortured by my government. But individuals still do NOT have rights vis-a-vis one another under public international law – if a private person tortures me, he has committed a tort and a crime under domestic law, but there is no such tort under international law. A state, however, would be responsible even for such private torture if it fails to exercise due diligence in ‘securing’ my human rights against violations even by private actors.

  11. Marko,

    1. Your mere assertion that the Constitution is not a treaty and that the U.S. Supreme Court is not an international tribunal is not an argument. I have laid out my arguments in previous postings by reference to my book, The Constitution as Treaty (Cambridge Univ. Press 2007).

    2. Furthermore, the Articles of Confederation clearly was a treaty, its Courts of Appeals in Cases of Capture were international courts, and Congressional acts under the Articles were a species of international law. Again, see my book.

    3. Wikipedia’s definition of admiralty law is flawed. (Big surprise!) Bouvier’s Law Dictionary (1856) defines admiralty as “The name of a jurisdiction which takes cognizance of suits or actions which arise in consequence of acts done upon or relating to the sea; or, in other words, of all transactions and proceedings relative to commerce and navigation, and to damages or injuries upon the sea.” Therefore, admiralty law does include the law of the sea.

    4. You never mentioned “public international law.” I have been addressing all international law, and I thought that you also had been addressing all international law. Even so, you are still wrong. 18th &19th century public international law imposed duties upon non-state actors in case involving, e.g., piracy and slave-trafficking.

    Francisco Forrest Martin

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