JUSTICE AGAINST SPONSORS OF TERRORISM ACT (“JASTA”)

By Zafar Kundi
Senior Associate

“A lot of people think international relations is like a game of chess. But it’s not a game of chess, where people sit quietly, thinking about their strategy, taking their time between moves. It’s more like a game of billiards, with a bunch of balls clustered together.”(1) It seems that the ex-secretary of state very well summed up the current scenario of international relations. From the war on terror, to proxy wars, to JASTA, the international community has not been in a more worrisome situation. We have witnessed how terrorism has been a basis for external intervention in sovereign states, chanting slogans for freedom, laced with vested interests. JASTA is yet another step, rather a leap, towards stricken international relations. As I observe, it is yet another tool for show of power and an added advantage to bring on the international negotiation table.

JASTA has been adopted by the Congress on 28.09.2016 as Public Law 114-222 with the purpose to “provide civil litigants with the broadest possible basis, consistent with the Constitution of the United States, to seek relief against persons, entities, and foreign countries, wherever acting and wherever they may be found, that have provided material support, directly or indirectly, to foreign organizations or persons that engage in terrorist activities against the United States.” (2) JASTA is aimed to counter acts of international terrorism and a tort committed anywhere by an official agent, or employee of a foreign state acting within the scope of employment.

Having said that, questions arise as to whether JASTA is a measure to intermingle within jurisdiction of other sovereign States or is it actually a measure to take home, the war on terrorism. It might as well be a step towards a future era of multiple states having similar enactments across the globe with a general international responsibility of states to cooperate for the safety of neighboring countries, and that too, with a common aim to combat international terrorism. However, the transaction is still not so simple. Unlike trends of the international law, domestic laws are empowering, strict and non-consensual. It is a one way affair whereby States draw a line and let in no exceptions. JASTA has done exactly the same but, uninterestingly, broadened the scope to subject all sovereigns to the jurisdiction of its federal courts. In an ambush of criticism and political outrage, I am unable to bridge certain legal gaps and am forced to question the purpose of this piece of legislation.

International terrorism has been defined as activities that involve violent acts dangerous to human life that are a violation of criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or any State, which appear to be intended (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to effect the conduct of a government by mass destruction, assassination, or kidnapping.(3)

It is to note that the JASTA cannot be read in isolation but with provisions from other commendable pieces of legislation apply. The foremost being United States Code, JASTA seems to grow farther apart from jurisprudential principles as well as the United Stated scheme of legislation. The United States Code talks about jurisprudence of international sovereign States as infrangible. However, the incorporation by amendment of sections 1605A and 1605B in title 28 of the U.S. is of utmost importance to understand the scope and purpose of JASTA.

In general, no immunity has been offered to States who are sponsors to international terrorism and the federal courts of United States may hear any such grievance from individuals and/or other authorities (4) and maintain jurisdiction for money damages. Such damages may include economic damages, solatium (5), pain and suffering, and punitive damages. “In any such action, a foreign state shall be vicariously liable for the acts of its officials, employees or agents.” (6) Once the case is taken up by the federal court, it may appoint persons known as “special masters” to hear the case and appeal may also lie from the final determination by special masters. In order to secure the execution of any decree lying against the judgment debtor, clauses of property dispossession have also been attracted through JASTA whereby the property of defendants may be attached. It is pertinent to note that in any case of such nature, which is pending, the Attorney General may intervene in any action in which a foreign state is subject to jurisdiction of the United States. However, this intervention can “stay the proceedings where the Secretary of State certifies that the United States is engaged in good faith discussions with the foreign state defendant concerning the resolution of the claims against the foreign state.”

It is unsurprising to mention that the JASTA has faced severe criticism internationally as well as internally. (7) The issue of international terrorism has been placed in the hands of individuals and federal courts pose a serious threat to the political wellbeing of America itself. The issue of terrorism has long been a political subject where States have come close to understand each other’s interests in combating it. At such a point in time, taking up this issue in a manner to be provided by federal courts is unprofitable. The courts are duty bound to deliver their legal rulings based on whatever information is provided to them with whatever way they are being assisted. Adjudication of international terrorism coming from individual complaints will create a huge gap in actually addressing the greater threat the whole international community faces. The very definition and concept of terrorism will get distorted in times to come. However, political agencies and foreign offices should, and have been the institutions to address these issues. A one way affair to bring states and foreigners in the name of terrorism seems defective.

Secondly, it is easy to declare the jurisdiction of federal courts over state sponsors of terrorism but what might be the criteria of evidence to determine so, still remains unanswered. A complaint to that effect is not sufficient to subject states to be presented before special masters for adjudication. Furthermore, the role of special masters, their qualification and professional capacity to be able to ascertain such issues still remain unanswered.

Moreover, like some optimists have stated, JASTA is the new trend of passing domestic legislation as a showcase of national concern against terrorism. This premise is faulty in its very inception. This “would open doors for other governments to pass similar legislation to pass similar legislation that would allow their domestic courts to hold the U.S. liable for action committed by U.S. personnel or members of an armed group that received U.S. assistance…or abuses committed by police units that received U.S. training.” (8) This may very well isolate the United State in the international community whereby foreign holdings and international American business around the world will be put to jeopardy. Just what happened in the previous instance of the Dubai Ports issue, similar effects will be seen in the JASTA aftermath.

Consequently, it is evident that JASTA has portrayed America’s great leap forward from a unified and consented stance on international terrorism. This will definitely create complications in the United States capacity to harvest international cooperation in combating serious security issues.

However, with all the valid criticism and evident drawbacks of JASTA, one is forced to wonder as to why the Congress came up with such a law. I believe the reason for such a step is none other than taking another benefit to the negotiating table. The whole scheme of this Act revolves around recovering damages, in monetary terms, for the specific violations committed by foreign states or elsewise against the United States. Considering the fact that all countries still enjoy exclusive jurisdiction over matters of its own, the one great advantage that JASTA brings to the U.S. is a plethora of claims against states or organizations termed as sponsors to terrorism who, now on verdict of special masters, owe them money too.

It may not be wrong to say that the future will, if JASTA survives, see the U.S. establishing a one-way economic liability over its economic partners. It might give it the edge to negotiate economics as well as an entry into the domestic economy of other states. However, such a shift will not occur in a swift manner but is prone to back fire from other economic giants such as China, Russia and Saudi Arabia. Business has already been affected; counter legislations are due to come.

References

:

1.Madeline Albright, Secretary of State (January 1993-1997)
2.Section 2(b) of JASTA 2016
3.18 United States Code s2331
4.28 Unites States Code s1605A
5.Refers to something given to someone as a compensation
6.28 Unites States Code s1605A part (d)
7.JASTA has been termed “Irresponsible, dangerous and damaging to the national interest of the United States of America” by Barrack Obama in his famous press release on the subject published in newspapers across the globe.
8.James Zogby, The Huffington Post, “ JASTA: Irresponsible and Dangerous” (01.10.2016)