Home > News > Holding “Terror States” to Account: Seeking Justice in U.S. Courts
February 26, 2025 in Israel, Scroll
By Aryeh Portnoy.
The terror attacks in Israel on October 7, 2023 that resulted in the murder of roughly 1,200 people, the kidnapping of more than 250, and the destruction of entire communities across its southern border, has seared into the minds of the Jewish community images of depravity and devastation, of innocent victims and helplessness. When we think of ways to alleviate some of the suffering, first thoughts might be to charity and volunteerism. What might not be as readily apparent is an additional avenue to justice through legal action, and for American victims and their families, in the U.S. courts.
For the past three decades, American victims and their families have been able to rely on a special U.S. law that allows suits against states designated by the U.S. government as “State Sponsors of Terrorism” who provide material support for attacks that have killed or injured them or their loved ones. Currently, Iran, Syria, North Korea, and Cuba are on that list. Over the past year, hundreds of victims of the October 7 massacre joined the ranks of victims seeking justice under this law in U.S. courts. There are several cases pending against some combination of Iran, Syria, and North Korea, with more cases certainly to come.
The lawsuits, filed last year in the U.S. District Court in Washington, D.C., will follow a long and circuitous process, one that cannot be easily summarized here. It can take six months or more, for example, simply to have the initial case documents delivered to the defendants, who do not recognize the jurisdiction of the U.S. courts and therefore do not participate in the proceedings. And then, even against absent defendants, the plaintiffs must prove their cases through evidence as to both liability and damages, before the court will enter judgment.
As would be expected, the cases are both substantively and emotionally complex and challenging. Establishing liability typically requires extensive fact-finding and expert testimony and evidence. In the October 7 litigation, evidence must be gathered and presented regarding the funding, training, and other resources the defendants provided, including by supplying weapons, assisting with tunnel technology, providing safe harbor, assisting in the growth of the organizations, strategic and tactical planning, and more. It will be up to the courts to determine whether there is sufficient evidence to hold each of the defendant states liable, and this will take time.
And, of course, after a determination of liability, each victim will have to present his or her own personal harrowing and horrifying story to the court to establish the damages caused by the terrorists. The legal teams will work with each living victim and family member to gather these stories and present each victim’s truth. This process is grueling, as it forces each plaintiff to relive the worst day of their lives, and the enduring aftermath, in maximal detail.
And then what? For many years, that question burdened hundreds, if not thousands, of victims who followed the legal path laid out for them by the U.S. Congress, which had no clear means to obtain any actual relief in the end. Victims could take their judgments and try to find assets of the terrorist-sponsoring states around the world, and many did – only to find more hurdles, challenges, and litigation behind those doors. Those battles for justice continue. In other cases, states such as Libya and Sudan, desiring to re-enter the global community and shed the terrorist-state designation, made deals with the U.S., which required the states to resolve (in some way) the judgments against them. But for thousands of victims, meaningful relief remained elusive.
In 2015, as a result of the dogged efforts of victims and their representatives, Congress established the United States Victims of State Sponsored Terrorism Fund – a fund designed to provide consistent and meaningful relief to victims, without resort to appropriations or taxpayer funds. At a basic level, the Victims Fund depends almost entirely on fines and penalties collected by the Department of Justice from cases involving state sponsors of terrorism and other enemies of the United States – “bad actor” funds – to provide relief, when available, on a pro rata basis based on each victim’s judgment.
Sadly, as tragic as the path was that forced each plaintiff to join the unfortunate community of victims, the path to relief and recovery has been, and continues to be, not only long but also rife with challenges and obstacles. Even after obtaining judgments, victims (and their representatives) have had to lobby repeatedly for Congressional action to make sure the Victims Fund works as intended, and those funds required to be deposited for the benefit of victims, actually reaches them. There have been numerous legislative efforts in this regard, and there is a bipartisan bill currently under consideration that is desperately needed to help the nearly 20,000 victims who already rely on the Victims Fund, and those next in line – in particular the October 7 victims, who are only at the beginning stages of their legal journey amidst the rawness of their grief and pain. Having already had to fight the perpetrators of their attacks, victims frequently have to continue the fight within their own government. You can urge Congress to support that effort here.
There are many paths to the pursuit of justice for the October 7 victims. While cases against the terrorism-supporting states and then application to the Victims Fund may be the clearest path to relief, other courses of action also can be available. Some cases have been brought against the terrorist organizations themselves, though those cases present a variety of legal and practical challenges. Other cases have been brought more for the purpose of exposing the panoply of people and entities responsible than for any hope of actual recovery.
Our legal team currently represents nearly 200 victims of the October 7 attack, in partnership with the ADL and Israeli counsel. To represent a terrorism victim is to take on a mission that runs much deeper than the legal process. It is a mission of providing hope and support to those mired in the feeling of helplessness that terrorism is designed to engender. It carries with it the responsibility of buoying the aggrieved and making sure they know that someone is telling their story and making sure they and their loved ones are not forgotten and will always have a voice. For me personally, this is the hardest work I have ever undertaken, but also the most meaningful. Spending day after day bearing witness and taking testimonials of the most unimaginable suffering is excruciating but does not hold a candle to the pain of the victim sharing that truth. I have done this for more than two decades, but nothing prepared me for how hard this iteration would be – with my people and my community and my family. We all search for ways to do good with whatever platform and skills we have, and this is my opportunity – along with a way to channel the betterment of the world in some small way that I have tried to adopt from my father’s life mission. We will work for the best results we can, but the process can be just as important. The victims need to know they are not alone, and someone will fight for them for as long as it takes. That is the job, no matter how hard.
The pursuit of justice for the victims of October 7 will be long and challenging. It is ever evolving. The legal process is only one path to justice – in the U.S. courts it is an avenue for truth-telling, recognition, support, relief, and the ever-important need to never forget. There are so many victims who do not even know of the opportunities they might have to seek and obtain some measure of relief. With emerging facts, new paths likely will continue to arise. Hopefully, over time, all victims will find their way to those who can help them navigate some path to recovery.
Aryeh Portnoy is a partner at Crowell & Moring LLP, where he has practiced for the past 26 years, and co-chairs the firm’s Terrorism Litigation Practice. Aryeh has represented hundreds of victims of terrorist attacks and their families in U.S. court litigation, before the U.S. Victims of State-Sponsored Terrorism Fund, and through lobbying Congress and the Executive Branch to help victims obtain desperately needed relief. Aryeh’s team currently represents nearly 200 victims of the October 7 attack, in partnership with the ADL and Israeli counsel.
