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Published online by Cambridge University Press: 13 July 2018
The 2000–2005 al Aqsa Intifada spawned a horrific wave of violence in and near Jerusalem. Numerous individuals and entities were sued in U.S. courts, by both foreign and American victims, relying on a variety of liability theories and statutes. The seminal Anti-Terrorism Act (ATA) case was filed in 2007 in the U.S. District Court for the Southern District of New York as Sokolow v. Palestine Liberation Organization. It also named the Palestinian Authority (PA) and individuals including Yasser Arafat.
1 The Sokolow plaintiffs sued under the 1992 federal Anti-Terrorism Act (ATA), 18 U.S.C. §2333(a): “Any national of the United States injured . . . by reason of an act of international terrorism, or his or her estate, survivors, or heirs, may sue therefor. . . .” Similar suits have been filed under the 1789 Alien Tort Statute (ATS), 28 U.S.C. §1350: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”
2 A rich array of substantive and procedural issues was untouched by the Second Circuit's personal jurisdiction opinion. However, the trial court's 2014 summary judgment opinion fills that void. See Sokolow v. PLO, 60 F.Supp.3d 509 (2014).
3 Sokolow v. PLO, 2014 WL 6811395 (S.D.N.Y. 2014) (renewed after intervening U.S. Supreme Court decisions) [hereinafter Sokolow Trial Court Decision]. (For the ensuing judgment and verdict, see 2015 WL 10852003.)
4 See Waldman v. PLO, 835 F.3d 317 (2d Cir. 2016) [hereinafter Sokolow-Waldman Appeal].
5 Id., cert. denied, 2018 WL 1568032 (2018).
6 Sokolow-Waldman Appeal, supra note 4, at 322.
7 Zitovsky v. Kerry, 135 S.Ct. 2076, 2094 (2015).
8 Sokolow-Waldman Appeal, supra note 4, at 329.
9 Brief of the U.S. as Amicus Curiae, 2013 WL 3377321 at *3 n.1, DaimlerAG v. Bauman, 571 U.S. 117 (2013) [hereinafter Daimler] (Supreme Court). See Sokolow-Waldman Appeal at 330, citing circuit precedent (Second Circuit).
10 Sokolow Trial Court Decision, supra note 3, at *2 (emphasis added, and referring to contacts including an embassy, consulates, and lobbying firm, as well as the UN presence in the United States).
11 Daimler arose under the Alien Tort Statute, supra note 1, and its related Torture Victims Protection Act. Plaintiffs alleged that Daimler's wholly owned Argentinian subsidiary collaborated with state security forces to kidnap, detain, torture, and kill the plaintiffs and their relatives. Sokolow-Waldman arose under the Anti-Terrorism Act, supra note 1.
12 Daimler, supra note 9, at 139, citing Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011) (emphasis added) [hereinafter Goodyear]. The Second Circuit had already so ruled in 2014—as to foreign corporations. Gucci America, Inc. v. Weixing Li, 768 F.3d 122, 135 (2d Cir. 2014).
13 PA: Livnat v. Palestinian Authority, 82 F.Supp.3d 19, 30 (D.D.C. 2015) (citing Daimler). PLO (as well): Klieman v. Palestinian Authority, 82 F.Supp.3d 237, 245–246 (D.D.C. 2015).
14 Procedural case law differentiates between general all-purpose jurisdiction and specific forum-linked jurisdiction; e.g., “A court may assert general jurisdiction . . . to hear any and all claims against [defendants] . . . when their affiliations with the State are so ‘continuous and systematic’ as to render them essentially at home in the forum State. . . . In contrast . . . specific jurisdiction is confined to adjudication of ‘issues deriving from, or connected with, the very controversy that establishes jurisdiction [in the particular forum].’” Goodyear, supra note 12, at 919.
15 Sokolow-Waldman Appeal, supra note 4, at 337.
16 Id.
17 For example, the United States is not a party to, nor does it support, the International Criminal Court. The “Government of Palestine” has accepted the Court's jurisdiction, but only for crimes occurring after mid-2014.
18 Parenthetical quotes: see ATA, supra note 1. See generally Aisling O'Sullivan, Universal Jurisdiction in International Criminal Law: The Debate and the Battle for Hegemony (2017) (Universal Principle); Geoffrey R. Watson, The Passive Personality Principle, 28 Tex. Int'l L. J. 1 (1993) (Passive Personality Principle).