French Bank Whose Transactions Benefitted Sudan Generally, But Were Not Otherwise Related To The Commission Of Terrorist Acts Supported By Sudan, Could Not Have Violated ATA And ATS.

The World in U.S. Courts: Winter 2018 - Alien Tort Statute (ATS)/Anti-Terrorism Act (ATA)

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Ofisi v. BNP Paribas, S.A., US District Court for the District of Columbia, September 29, 2017

Victims of 1998 al Qaeda terrorist bombings in Kenya and Tanzania and their relatives have engaged in protracted litigation in the US for relief under the ATS and the ATA. In 2011, they obtained judgment against the Republic of Sudan. In this case, they sued the French bank BNP Paribas (BNPP), alleging it was culpable for the attacks under the US statutes.

As relevant here, the Court first addressed the ATA, noting that it required a plaintiff to allege (i) injury to a US national, (ii) an act of international terrorism, and (iii) “causation” linking the act with the plaintiff’s injury. Courts additionally have required “deliberate misconduct,” a term whose meaning will vary based on the underlying US statute cited as defining the predicate act of terrorism. BNPP was alleged to have violated 18 USC 2332d(a) (prohibiting a “US person” from engaging in a “financial transaction” with a government identified by the US as supporting international terrorism), as a result of conduct that “aided and abetted” violations by others. The Court found, however, that the statute only provided for “aiding and abetting” as a result of amendments effective after the incident at issue in this case. It also concluded that the term “US Person” had been given a specific definition under the ATA that a corporation organized and headquartered in France could not satisfy. The Claim under Section 2332d(a) was thus dismissed.

BNPP was also alleged to have violated 2339A(a) (prohibiting the provisions of “material support or resources” to terrorists), through an allegation that the bank was “illegally processing U.S. dollar transactions Sudan prior to the 1998 terrorist attacks.” The Court rejected the claim on grounds that the plaintiffs had come forward with only conclusory allegations, not facts, to suggest that the bank knew the funds it was processing were being used to support al Qaeda or any terrorist activity. The Court thus found that the plaintiffs had failed to allege the requisite “deliberate misconduct.” The Court concluded “for similar reasons” that the plaintiffs failed to allege that their injuries had been “proximately caused”—i.e., “directly” caused—by the bank. “Plaintiffs have made no detailed factual allegations showing, for example, that BNPP participated in the attacks or provided money directly to any terrorist group, that any money BNPP processed for Sudan or Sudanese banks was transferred to al Qaeda prior to the attacks, or that Sudan would have been unable to assist al Qaeda without the funds the bank processed.”

The Court then addressed the plaintiffs ATS claim, finding as a preliminary matter that a corporate defendant could be liable under the ATS—a rule under review by the US Supreme Court but, for the time being, followed by most courts but not those in New York and surrounding regions.

On the merits, the Court observed that the plaintiffs must allege a violation of an “international law norm” recognized when the ATS was enacted in 1789, and that can be characterized as “specific, universal, and obligatory.” The plaintiffs argued that BNPP was liable under the ATS as a result of “aiding and abetting” a specific terrorist act, and the Court observed that this claim required that (i) the alleged terrorist act violate an “international law norm,” and (ii) BNPP’s conduct satisfy the definition of “aiding and abetting” as defined under “customary international law.”

The Court addressed the attacks at issue and found that they constituted “crimes against humanity” and an “infringement of the rights of ambassadors,” both qualifying “international law norms.” But it found that the plaintiffs’ allegations failed to establish “aiding and abetting.” Looking to definitions employed by international tribunals required to apply only “customary international law,” the Court stated that the plaintiffs’ allegations must first show “actus reus”—“practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime.” As discussed above, the plaintiffs’ failure to link BNPP directly to the terrorist act prevented an inference of the bank’s “actus reus” from being made. The second requirement for “aiding and abetting” liability is “mens rea”—knowledge that one’s actions are assisting in the commission of the principal offense. Again, the Court concluded that the plaintiffs’ failure to allege facts that BNPP knew that the transactions it was assisting were to benefit al Qaeda generally or the terrorist acts specifically made such a finding impossible.

For these reasons, the ATA and ATS claims against BNPP were dismissed.

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