Wednesday's Weird But True Legal Cases - Vol XXXIX

Tonight's Weird (But True) legal case continues the examination of how the Federal Courts view lawsuits filed against various Palestinian governmental and quasi-governmental agencies.

In Weiss v. Arab Bank, 2007 WL 4565060 (E.D.N.Y. Dec. 21, 2007) the court considered a suit brought by the families of five American citizens who were killed while serving in the IDF. The complaint alleged that these five individuals were killed by acts of international terrorism committed by Hamas, the Palestinian Islamic Jihad and the Al-Aqsa Martyrs Brigade.

The basis for the suit was the Anti-Terrorism Act (ATA) which provides that:

Any national of the United States injured in his or her person, property, or business by reason of an act of international terrorism, or his or her estate, survivors, or heirs, may sue therefor in any appropriate district court of the United States and shall recover threefold the damages he or she sustains and the cost of the suit, including attorney's fees.

The ATA does contain an exception which preempts lawsuits when the individual was injured through an "act of war." The ATA defines act of war as an act occurring in the course of: (1) a declared war; (2) an armed conflict between two nations regardless of whether war has been declared; or (3) armed conflict between military forces of any origin.

The Plaintiffs named Jordan based Arab Bank as a defendant, alleging that the bank had knowingly and willingly conspired with and aided and abetted Hamas, the Palestinian Islamic Jihad and the Al Aqsa Martyrs Brigade by providing material support to those who had killed the five victims.

Following receipt of the complaint, the bank moved to dismiss, arguing that the suit was barred under the third definition of act of war (armed conflict between military forces of any origin).

Prior to discussing the ATA, the court cited to the decision of Federal District Court in Utah, noting that:

As alleged in the Complaint, the Terror Victims were murdered by members of HAMAS, the PIJ, and AAMB, all three of which are designated terrorist organizations. Limited authority exists on whether a designated terrorist organization can constitute a “military force” for purposes of 18 U.S.C. § 2331(4)(C). One court, however, has addressed this question and answered it in the negative. In Morris v. Khadr, 415 F.Supp.2d 1323 (D.Utah 2006), a member of the United States Army and another soldier's executor brought ATA claims against a defendant who financed and abetted al Qaeda after the soldiers were attacked by al Qaeda terrorists while serving on active duty in Afghanistan. Id. at 1326-27. In the course of granting plaintiffs' motion for default judgment, after defendant had failed to respond to the complaint, the court analyzed the “act of war” exclusion sua sponte. Id. at 1330.The court concluded that “the acts complained of are not ‘acts of war’ under § 2336(a) but are acts of international terrorism under § 2331(1).” Id. at 1330-31. In reaching that conclusion, the court emphasized that al Qaeda could not be considered a “military force of any origin” under § 2331(4)(C).

In arguing that the activities fell within the third ATA exception, the bank put forth three arguments which the court quickly disposed of. As noted by the court in its decision:

First, defendant summarily argues that relief under the ATA is unavailable to soldiers who are injured during the course of an armed conflict: “Because the injuries at issue here, as they are alleged, were incurred by soldiers, and thus plainly combatants, during the course of an armed conflict, any damages arising from such acts must logically be read to fall within the armed conflict exclusion of the Anti-Terrorism Act, 28 U.S.C. § 2336(a).” Def. Mem. at 13. This argument ignores one of the express requirements of 18 U.S.C. § 2331(4)(C): that, to constitute an “act of war,” the armed conflict in question must be “between military forces of any origin.”Id. (emphasis added). As detailed above, I find that the Terror Victims were not killed by a “military force.” Accordingly, that the Terror Victims were themselves part of a “military force,” and that they were killed “during the course of an armed conflict,” does not preclude plaintiffs from seeking relief under the ATA. See Morris, 415 F.Supp.2d at 1339 (upholding American soldiers' ATA claims for injuries they suffered while in active service abroad).

The second argument advanced by the bank was that since the decedents had joined the IDF they had forfeited the right to relief under the ATA. This was also rejected by the court which noted that the bank "offers no support for this argument, which is contrary to the plain language of the ATA. See18 U.S.C. § 2333(a) (providing a claim for relief to “[a]ny national of the United States injured in his or her person, property, or business by reason of an act of international terrorism”).

Finally, the bank argued that Hamas, Islamic Jihad and Al Quds were military forces because the complaint attributed paramilitary status to their activities. This was also rejected by the court, which noted:

This argument mischaracterizes the allegations of the Complaint. To describe, in common parlance, as the Complaint does, that the terrorists engage in military or paramilitary-type activities does not mean that HAMAS, the PIJ, or AAMB is a “military force” within the meaning of the ATA's “act of war” exclusion. On the contrary, as explained above, there is no sound basis for concluding that the term “military force,” as used in the ATA, encompasses designated terrorist groups.

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