[News] Why the Palestinian Authority can be sued in the US for “terrorism” but Israel can’t

Anti-Imperialist News news at freedomarchives.org
Wed Feb 4 11:43:10 EST 2015

  Why the PA can be sued in the US for “terrorism” but Israel can’t

Submitted by Charlotte Silver on Tue, 02/03/2015

In January, a trial began in a Manhattan federal court against the 
Palestinian Authority and the Palestine Liberation Organization (PLO) on 
accusations of orchestrating “terrorism.”

The civil suit, originally filed 11 years ago, alleges that the PA and 
the PLO are responsible for seven acts of “terror” carried out between 
2001 and 2004 in present-day Israel, which collectively caused the 
deaths of 33 people and injuries to hundreds more, including many US 

In order to succeed, plaintiffs have to prove that the Palestinian 
Authority enabled and caused the seven attacks 
as part of its policy. Because “Palestine” is not recognized as a state 
by the US government, the PA and PLO do not enjoy immunity under the 
Foreign Sovereign Immunities Act (FSIA), which bars lawsuits against 
foreign states in US courts.

However, regardless of its status under FSIA, the Obama administration 
could argue for the PA’s immunity if it were so inclined. As it is goes 
forward, the civil suit has potential to compromise the PA’s maneuvers 
in the International Criminal Court (ICC).

    *Can a jury take decisions on international politics?*

The case is being brought under the Anti-Terrorism Act of 1991, which 
allows US citizens to sue foreign organizations for damages resulting 
from “international terrorism.”

There has been a spate of similar civil suits successfully brought 
against organizations or financial institutions. Most recently, a jury 
found the Arab Bank liable 
for material support for terrorism for providing financial services to 
the Palestinian political and military organization Hamas, which the US 
government designates as a ”foreign terrorist organization 

However, some legal experts object to the notion of a jury of twelve US 
citizens presiding over matters of international politics.

“I’m not a great believer in using litigation to make public policy. I 
think public policy should be made publicly, through elected officials, 
not through 12 jurors,” attorney Eric Lewis told The Electronic 
Intifada. In the past, Lewis has represented The Arab Bank as well as 
detainees at the US prison at Guantanamo Bay, Cuba.

Lewis said that there were thin grounds for turning “a political 
atmosphere into proximate causation in the law.”

    Attempt to block ICC moves

Indeed, the current political atmosphere makes the timing of this civil 
suit particularly fraught. With the Palestinian Authority’s accession to 
the International Criminal Court, Israel and its supporters have 
threatened to retaliate against the PA in the event that the ICC 
prosecutes Israeli war crimes, including those committed last summer 
during the attack on Gaza that killed more than 2,200 people.

While the plaintiffs are a number of American citizens who survived  the 
“terror” attacks or whose relatives were killed in them, the case has 
been propelled forward from its inception by Shurat HaDin 
<http://electronicintifada.net/tags/shurat-hadin>, an Israeli lawfare 
<http://electronicintifada.net/tags/lawfare> organization with ties to 
the spy and assassination agency Mossad 

Shurat HaDin works under the motto “Bankrupting terror, one lawsuit at a 
time,” but it is clear that monetary awards do not motivate 
<http://www.nytimes.com/2015/01/24/world/middleeast/crusading-for-israel-in-a-way-some-say-is-misguided.html?_r=0> its 
countless lawsuits.

Lewis sees the current case as functioning to discredit the PA as agents 
of terrorism — rather than to extract damages. He states that only a 
very small number of people have ever collected money awarded through 
Anti-Terrorism Act cases.

In fact, Shurat HaDin has filed a number of complaints 
<http://israellawcenter.org/legal-action/us-cases/> with the 
International Criminal Court against various Palestinian Authority and 
Hamas officials with the sole purpose of intimidating Palestinian 
political bodies from pursuing prosecutions of Israeli officials or 

/The New York Times/ reports 
<http://www.nytimes.com/glogin?URI=http%3A%2F%2Fwww.nytimes.com%2F2015%2F01%2F24%2Fworld%2Fmiddleeast%2Fcrusading-for-israel-in-a-way-some-say-is-misguided.html%3F_r%3D0> that 
Shurat HaDin director Nitsana Darshan-Leitner does not actually expect 
to see these complaints pursued by the ICC, “but hopes [they] will deter 
the Palestinians from pursuing parallel claims against Israelis.”

The current case against the PA may very well serve the same purpose. 
Jonathan Schanzer, vice president for research at the 
pro-Israel Foundation for Defense of Democracies, told the Investigative 
Project on Terrorism 
(a website founded by leading Islamophobe 
Steve Emerson <http://electronicintifada.net/tags/steven-emerson>) that 
a judgment against the Palestinian Authority “could give the United 
States some leverage in getting PA President Mahmoud Abbas to back off 
the unilateral moves.”

    *Many documents, little evidence*

Plaintiffs have submitted an abundance of documents claiming to show a 
direct financial connection between the PA and Palestinian activists and 

A significant portion of the evidence purporting to prove a direct 
relationship between the PA and the seven attacks are documents seized 
by Israeli occupation forces during Operation Defensive Shield 
a military assault into several occupied West Bank cities in 2002.

None of the hundreds of thousands of documents 
<http://imra.org.il/story.php3?id=12969> that were seized during the 
Israeli raid on PA headquarters in Ramallah showed an authorization of 
an actual attack, but they do indicate that Yasser Arafat, then leader 
of the PA and the PLO, signed off on the transfer of funds to what 
Israeli intelligence characterized as armed militias.

Israel and its vocal defenders, including Matthew Levitt 
<http://www.washingtoninstitute.org/policy-analysis/view/defensive-shield-counterterrorism-accomplishments> of 
the Washington Institute for Near East Policy and anti-Palestinian 
activist Caroline Glick 
<http://electronicintifada.net/tags/caroline-glick>, made much of this 
discovery at the time. Glick depicted 
<http://carolineglick.com/the_baghdadramallah_axis/> Arafat as a 
monstrous villain who not only financed terror operations, but deprived 
Palestinian civilians of funds sorely needed to build up their “civil 
society” by callously diverting money to “terrorist cells.”

However, outside committed Zionist circles there was no consensus on 
what the documents revealed. Human Rights Watch analyzed 
<http://www.hrw.org/reports/2002/isrl-pa/ISRAELPA1002-07.htm> the 
documents and the PA’s role in inciting or encouraging acts of “terror” 
between 2000 and 2002 (the period during which all but one of the 
attacks referred to in the current trial took place), and found no 
evidence demonstrating that Arafat or any other senior PA officials 
played any role in planning attacks against Israeli civilians.

Nor did Human Rights Watch find that “PA officials or institutions 
organized or assisted in preparing or carrying out attacks against 
civilians systematically or as a matter of policy.”

    *When state terror is immune*

Successfully prosecuting the case against the PA and the PLO hinges on 
the ability to prove that the seven acts of violence were the result of 
“governmental” policy. Conversely, Israeli acts of mass killing are 
granted immunity for the very fact that they /are/ state policy.

Consider the case against then-director of Israel’s General Security 
Service (also known as Shin Bet 
<http://electronicintifada.net/tags/shin-bet> or Shabak), Avi Dichter 
<http://electronicintifada.net/tags/avi-dichter>, who helped the Israeli 
army decide to drop a one-ton bomb an on apartment building in Gaza 
City, killing 15 Palestinians and injuring more than 150 others in 2002.

The Center for Constitutional Rights filed a case against Dichter 
<http://ccrjustice.org/ourcases/current-cases/matar-v.-dichter> for 
orchestrating what they called targeted, extrajudicial killings. But in 
2007, a US judge dismissed the lawsuit on the grounds that Dichter was 
operating in an official capacity.

During the appeals process, Israeli ambassador Danny Ayalon 
<http://electronicintifada.net/tags/danny-ayalon> sent a letter to the 
<http://ccrjustice.org/files/Israeli%20ambassador%27s%20letter.pdf> taking 
full responsibility for the bombing on behalf of the Israeli 
government while arguing for Dichter’s immunity.

Ayalon went on to criticize the lawsuit as undermining the work of 
foreign diplomacy: “The attempts to draw US courts into the adjudication 
of these cases runs counter to the ongoing Israel-US dialogue and the 
key diplomatic role of the US in the region.”

The Bush administration also opposed the prosecution of Dichter 
and, similarly, the Obama Administration opposed the prosecution of 
Saudi Arabia 
for its alleged role in supporting the hijackers involved in the 11 
September 2001 attacks in the United States.

Of note, in both cases the executive branch did not argue for the 
immunity of Israeli or Saudi officials on the basis of the Foreign 
Sovereign Immunities Act, but instead cited executive branch dominion 
over foreign affairs and the need to maintain respectful boundaries 
between US law and other states’ policies.

“Foreign official immunity serves as a vital protection against such 
interference by private litigants,” the State Department wrote in a 
friend of the court brief 
So though the PA is not eligible for immunity as a recognized state, its 
officials might still be granted protection.

While the White House could still intervene as the case winds its way 
through US courts, there is no precedent 
for a US administration intervening in legal proceedings to argue for 
Palestinians’ right to foreign immunity.

If one needed any more evidence that the US is not concerned with 
respecting Palestinian sovereignty, one can find it in US courts.

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863.9977 www.freedomarchives.org
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