Hanoch Tel-Oren, et al., Appellants, v. Libyan Arab Republic, et al.

Court	United States Court of Appeals, District of Columbia, United States
Case number	726 F.2d 774, 233 U.S.App.D.C. 384
Decision title	Appeals from the United States District Court for the District of Columbia
Decision date	3 February 1984
Parties	Hanoch Tel-Oren, and others Libyan Arab Republic Palestine Liberation Organization Palestine Information Office National Association of Arab Americans
Categories	Torture
Keywords	torture, universal jurisdiction
Links	Appeals judgment
Other countries involved	Libya

Summary

After the ‘Coastal Road Massacre’ of 11 March 1978 in Israel, the injured victims of the attack and relatives of the deceased attempted to take legal action in the United States against several non-state organisations and Libya, which they considered responsible for the attack. They based their action on, most importantly, a paragraph of the US Code which allows aliens to file action against an alleged violation of the law of nations or a treaty.

After the District Court had dismissed their case, the Court of Appeals had to assess the plaintiffs’ appeal against this Opinion. It turned out that the Appellate Panel disagreed on basically everything except on the final conclusion: the dismissal was affirmed. Judge Bork denied the existence of a right to sue altogether, stating that nor the law of nations, nor treaties provided the plaintiffs with this right. Judge Robb considered the questions to be answered in this case too political to be answered in a court. Matters regarding the international status of terrorist acts and sensitive matters of diplomacy should be left to politicians, in his opinion.

Procedural history

Two civil actions were filed against the Libyan Arab Republic (Libya), the Palestine Liberation Organization (PLO), the Palestine Information Office (PIO), the National Association of Arab Americans (NAAA) and the Palestine Congress of North America (PCNA). A suit was filed for compensatory and punitive damages by personal representatives of 29 persons who died in the attack (Civil Action No. 81-0563) and by persons injured during the attack (Civil Action No. 81-0564). In their complaints, the plaintiffs alleged that the defendants were responsible for multiple tortuous acts in violation of the law of nations, treaties of the US and criminal laws of the US, as well as the common law. The District Court dismissed the action both for lack of subject matter jurisdiction and as barred by the applicable statute of limitations. The plaintiffs appealed to the District Court’s ruling, thereby deciding not to pursue their claim against the PCNA. The three judges of the Appellate Panel confirmed the dismissal of plaintiffs’ actions, although the three judges brought forward different reasons for this dismissal.

Legally relevant facts

On 11 March 1978, 13 heavily armed members of the PLO landed by boat in Israel and seized a civilian bus, a taxi, a passing car, and later a second civilian bus. They took men, women and children hostage. Over several hours, the PLO members raced down the highway torturing passengers in the bus and shooting anyone in sight. When the Israeli police had stopped the massacre, the death toll was at 37 casualties. Moreover 76 people were wounded. This attack was considered, at that time, to be ‘the worst terrorist attack in Israel’s history. Most of the victims were Israeli citizens; a few were American and Dutch citizens. They turned to the District Court in the United States for legal redress.

Core legal questions

The District Court dismissed the action both for lack of subject matter jurisdiction and as barred by the applicable statute of limitations. Therefore, an assessments of the plaintiffs’ allegations regarding the responsibility for multiple tortious acts is not assessed in depth. The Court focused on jurisdictional analysis, for the purpose of which it assumes the allegations to be true (p. 2). The core legal question was whether the plaintiffs alleged sufficient facts to meet the jurisdictional elements of United States Code, Title 28, paras. 1331 and 1350 (1976). Under these provisions, the district courts have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the US (para. 1331) and 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.

Specific legal rules and provisions

Paragraphs 1331 and 1350 of Title 28 of the US Code.
Paragraphs 956, 960, 957, 1651-1661 of Title 18 of the US Code.
Paragraphs 12-301 ofd the District of Columbia Code.

Court's holding and analysis

The Judges agreed on dismissal of the action. Their reasons for this were diverse and can be summarised as follows:

Judge Edwards limited his analysis to allegations made against the PLO. Allegations against the PIO and the NAAA were considered to be too insubstantial. Jurisdiction over Libya was barred by the Foreign Sovereign Immunities Act (p.3). He disagreed with Judge Bork that section 1350 requires plaintiffs to allege a right to sue granted by the law of nations (p. 5). While accepting that the law of nations prohibits torture, Edwards rejected that this law imposes the same responsibility/liability on non-state actors, such as the PLO (pp. 3 and 16).

Judge Bork thus denied existence of a right to sue and stated that this right should not be inferred, thereby guided by the separation of power principles, which caution courts to avoid potential interference with the political branches’ conduct of foreign relations (p. 28).

Judge Robb considered federal courts unable to deal with this case due to the political question doctrine (p. 54). He considered matters regarding the international status of terrorist acts and sensitive matters of diplomacy to be within the exclusive domain of the executive and legislative branches (pp. 54-58).