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In re: TERRORIST ATTACKS ON SEPTEMBER 11, 2001., 2012 WL 257568 (2012)

involve a violation of a norm of customary international law that is “(1) universal and obligatory, (2) specific and definable, and (3) of mutual concern [to States.]” Abdullahi v. Pfizer, Inc., 562 F.3d 163, 177 (2d Cir. 2009), cert. denied, 130 S. Ct. 3541 (2010). As the district court recognized, SPA233 (Terrorist Attacks V), aircraft hijacking has long been recognized as a violation of international law that meets these criteria and can give rise to tort claims under the ATS. See, e.g., Kadic v. Karadzic, 70 R3d 232, 239 (2d Cir. 1996); cf. United States v. Yunis, 924 F.2d 1086, 1092 (D.C. Cir. 1991). What the district court failed to recognize, however, is that the broader concept of international terrorism is also a violation of customary international law that is actionable under the ATS, and plaintiffs adequately alleged that defendants engaged in, and aided and abetted, illegal acts of international terrorism.

*123 A. Plaintiffs Alleged That Defendants Violated the ATS By Intentionally Facilitating International Terrorism

The Burnett plaintiffs allege that “the Defendants, individually, jointly and severally, aided and abetted, sponsored, financed, promoted, fostered, materially supported, or otherwise conspired to proximately cause the death and injury of innocent persons namely the Plaintiffs herein through and by reason of acts of international terrorism -- the heinous attacks of September 11, 2001.” JA970. “As a result and proximate cause of the Defendants’ sponsorship of terrorism in violation of the law of nations and customary principles of international law, the Plaintiffs suffered injury and damages as set forth herein.” JA972. Such allegations state a claim under the ATS because facilitation of international terrorism is a violation of customary international law that is universal, obligatory, specific and of mutual concern to States.

B. Acts of International Terrorism are a Violation of Customary International Law

In considering whether alleged violations of customary international law are universal, obligatory, specific and of mutual concern to States, courts consider whether the conduct is banned by international conventions and treaties ratified by an overwhelming majority of States, *124 condemned by binding United Nations Security Council resolutions, and repudiated by individual nations. See, e.g., Flores v. S. Peru Copper Corp., 414 F.3d 233, 256-57, 261-62 (2d Cir. 2003); Filartiga v. Pena-Irala, 630 F.2d 876, 881-84 (2d Cir. 1980). Because the Constitution specifically gives Congress the power to “define and punish ... Offenses against the Law of Nations,” U.S. Const., art. I, § 8, cl. 10, courts should also accord deference to Congress’s determination of what conduct constitutes an offense under the law of nations. See, e.g., Ex parte Quirin, 317 U.S. 1, 26 (1942).

Plaintiffs have stated valid ATS claims because international conventions, U.N. Security Council resolutions, the domestic laws of many nations, and laws enacted by Congress pursuant to its authority to define and punish offenses against the laws of nations all demonstrate that there is a universal and obligatory norm against the commission of and material support of international terrorism alleged here -- namely, transnational acts intended to cause death or serious bodily injury to civilians for the purpose of intimidating the population or compelling a government to do some act or refrain from acting.

*125 1. United Nations Security Council resolutions

The U.N. Security Council has adopted numerous resolutions condemning international terrorism and support for international terrorism. In 1998, for example, the Security Council adopted a resolution “[s]trongly condemn[ing] the terrorist bomb attacks” on the U.S. Embassies in Kenya and Tanzania on August 7, 1998 “which claimed hundreds of innocent lives, injured thousands of people, and caused massive destruction to property.” S.C. Res. 1189, U.N. Doc. S/RES/1189 (Aug. 13, 1998) at ¶ 1. Later in 1998, the Security Council issued a resolution expressing concern about the “continuing use of Afghan territory, especially areas controlled by the Taliban, for the sheltering and training of terrorists and the planning of terrorist acts, and reiterating that the suppression of international terrorism is essential for the maintenance of international peace and security.” S.C. Res. 1214, U.N. Doc. S/RES/1214 (Dec. 8, 1998) at preamble and ¶ 13 (emphasis in original). In addition to the Security Council, the U.N. General Assembly has also adopted resolutions condemning intentional terrorism, including the provision of support to terrorists. See, e.g., G.A. Res. 210, U.N. GAOR, 51st Sess., Annex 1 at 6, U.N. Dec. A/RES/51/210 (1997) (declar[ing] that knowingly *126 financing, planning and inciting terrorist attacks are ... contrary to the purposes and principles of the United Nations”).

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