Some Legal Aspects of the Justice Against Sponsors of Terrorism Act

• Author: W. Fahmy
• Position: Pharos University (Alexandria, Egypt)
• Pages: 40-57

BRICS LAW JOURNAL Volume IV (2017) Issue 1

SoME LEGaL aSPECTS oF THE JuSTICE aGaInST SPonSoRS

oF TERRoRISM aCT

WALID FAHMY,

Pharos University (Alexandria, Egypt)

DOI: 10.21684/2412-2343-2017-4-1-40-57

Following the lead of the U.S. Senate on May 17, 2016, the House of Representatives of the

United States of America unanimously adopted the Justice Against Sponsors of Terrorism

Act (JASTA), which will allow victims of terrorism to bring class actions against any state

directly or indirectly involved in terrorist acts against American citizens. U.S. president

Barack Obama attempted to impose his veto against this legislation, but was overridden

by both houses in September, 2016. As a result, the Act entered into law, risking a real

revolution in international law with potentially very serious political consequences.

While it may be anticipated that those countries directly complicit in terrorism will see

their assets – including their sovereign assets in the United States – seized to nance the

compensation of the victims, such prosecutions will undoubtedly also involve European

countries, many of which have themselves been targeted by terrorism. This is especially

likely when their nationals are involved in terrorist acts.

There is now a great risk that U.S. law will unilaterally modify several fundamental

principles of international law, such as the sovereign immunity of states, creating genuine

legal conict in which victims of terrorism will seek redress from all states, including allied

nations or countries that have themselves been victims of terror.

Keywords: the Justice Against Sponsors of Terrorism Act (JASTA); the Foreign Sovereign

Immunities Act (FSIA); jus cogens; sovereign immunity; foreign state; terrorism; Vienna

Convention on the Law of Treaties; territoriality; state immunity principle; principles of

law.

Recommended citation: Walid Fahmy, Some Legal Aspects of the Justice Against

Sponsors of Terrorism Act, 4(1) BRICS Law Journal 40–57 (2017).

WALID FAHMY 41

Table of Contents

Introduction

1. About JASTA

1.1. From FSIA to JASTA

1.2. The Implications of JASTA for the U.S.

2. From the Standpoint of International Law

2.1. Territoriality and the State Immunity Principle

2.2. Does JASTA Conform to International Law?

3. From the Standpoint of General Legal Principles

3.1. Concerning the Principle of Good Faith

3.2. In Terms of Criminal Responsibility

3.3. In Terms of Liability

3.4. In Terms of Procedural Law

3.5. With Regard to the Execution of a Verdict

4. Examples of Application

Conclusion

Introduction

International law may be divided into two periods: before and after the

establishment of the United Nations. During the rst period, states made agreements

with each other, and sought to resolve disputes on the basis on customary law. In the

second era, international mechanisms under the umbrella of the UN play a crucial

role in dispute resolution. The UN Charter is based on three fundamental principles:

the immunity of states, the immunity of international institutions, and diplomatic

and consular immunity. I t is “an instrument by which members both assert their

sovereignty.”1 Also, the doctrine emphasizes: “An equal has no power over an equal…

sovereigns are equal as juridical bodies and have no authority to use their own courts

to sue other sovereigns without the consent of the latter.”2

The draft law was prepared by two senators, one Republican, one Democrat.

It enables the families of people killed in the September 11 attacks to bring legal

action against the states held liable for these terrorist attacks. It was adopted in

the U.S. Senate in May 2016. After that adoption, it was submitted to the House of

Representatives and was also adopted there. The Draft was voted in for a second time

1 See Winston P. Nagan & Aitza M. Haddad, Sovereignty in Theory and Practice, 13 San Diego International

Law Journal 451 (2012).

2 See Winston P. Nagan & Joshua L. Root, The Emerging Restrictions on Sovereign Immunity: Peremptory

Norms of International Law, the U.N. Charter, and the Application of Modern Communications Theory, 38

North Carolina Journal of International Law 376 (2013).