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<h1 class="title" id="page-title">Why the PA can be sued in the US
for “terrorism” but Israel can’t</h1>
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<span property="dc:date dc:created"
content="2015-02-03T21:30:27+00:00" datatype="xsd:dateTime"
rel="sioc:has_creator">Submitted by <span class="username"
xml:lang="" about="/users/charlotte-silver"
typeof="sioc:UserAccount" property="foaf:name" datatype="">Charlotte
Silver</span> on Tue, 02/03/2015 <br>
<b><small><small><a class="moz-txt-link-freetext" href="http://electronicintifada.net/blogs/charlotte-silver/why-pa-can-be-sued-us-terrorism-israel-cant">http://electronicintifada.net/blogs/charlotte-silver/why-pa-can-be-sued-us-terrorism-israel-cant</a></small></small></b><br>
</span> </div>
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media-element file-full" height="412" width="618" style="">
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<p>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.” </p>
<p>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 citizens.</p>
<p>In order to succeed, plaintiffs have to prove that the
Palestinian Authority <a
href="http://blogs.reuters.com/alison-frankel/files/2014/11/sokolowevpa-sjopinion.pdf">enabled
and caused the seven attacks</a> 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.</p>
<p>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).</p>
<h2><strong>Can a jury take decisions on international politics?</strong></h2>
<p>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.”</p>
<p>There has been a spate of similar civil suits successfully
brought against organizations or financial institutions. Most
recently, a jury found the <a
href="http://electronicintifada.net/blogs/charlotte-silver/arab-bank-appeal-verdict-us-terror-financing-show-trial">Arab
Bank liable</a> for material support for terrorism for
providing financial services to the Palestinian political and
military organization Hamas, which the US
government designates as a ”<a
href="http://www.state.gov/j/ct/rls/other/des/123085.htm">foreign
terrorist organization</a>.”</p>
<p>However, some legal experts object to the notion of a jury of
twelve US citizens presiding over matters of international
politics.</p>
<p>“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. </p>
<p>Lewis said that there were thin grounds for turning “a
political atmosphere into proximate causation in the law.”</p>
<h2>Attempt to block ICC moves</h2>
<p>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.</p>
<p>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 <a
href="http://electronicintifada.net/tags/shurat-hadin">Shurat
HaDin</a>, an Israeli <a
href="http://electronicintifada.net/tags/lawfare">lawfare</a>
organization <a
href="http://electronicintifada.net/blogs/asa-winstanley/israeli-lawyers-group-shurat-hadin-unmasked-mossad-proxy">with
ties to the spy and assassination agency Mossad</a>.</p>
<p>Shurat HaDin works under the motto “Bankrupting terror, one
lawsuit at a time,” but it is clear that <a
href="http://www.nytimes.com/2015/01/24/world/middleeast/crusading-for-israel-in-a-way-some-say-is-misguided.html?_r=0">monetary
awards do not motivate</a> its countless lawsuits.</p>
<p>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.</p>
<p>In fact, Shurat HaDin has filed <a
href="http://israellawcenter.org/legal-action/us-cases/">a
number of complaints</a> 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 soldiers.</p>
<p><em>The New York Times</em> <a
href="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">reports</a> 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.”</p>
<p>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, <a
href="http://www.investigativeproject.org/4731/terror-victims-take-palestinian-authority-to-court">told
the Investigative Project on Terrorism</a> (a website
founded by <a
href="http://electronicintifada.net/blogs/ali-abunimah/islamophobia-bankroller-behind-organizer-israel-junket-us-muslim-leaders">leading
Islamophobe</a> <a
href="http://electronicintifada.net/tags/steven-emerson">Steve
Emerson</a>) 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.”</p>
<h2><strong>Many documents, little evidence</strong></h2>
<p>Plaintiffs have submitted an abundance of documents claiming
to show a direct financial connection between the PA and
Palestinian activists and fighters.</p>
<p>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 <a
href="http://electronicintifada.net/content/ai-israeli-defence-forces-war-crimes-must-be-investigated/1145">Operation
Defensive Shield</a>, a military assault into several
occupied West Bank cities in 2002.</p>
<p>None of the <a href="http://imra.org.il/story.php3?id=12969">hundreds
of thousands of documents</a> 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.</p>
<p>Israel and its vocal defenders, including <a
href="http://www.washingtoninstitute.org/policy-analysis/view/defensive-shield-counterterrorism-accomplishments">Matthew
Levitt</a> of the Washington Institute for Near East
Policy and <a
href="http://electronicintifada.net/tags/caroline-glick">anti-Palestinian
activist Caroline Glick</a>, made much of this discovery at
the time. Glick <a
href="http://carolineglick.com/the_baghdadramallah_axis/">depicted</a> 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.”</p>
<p>However, outside committed Zionist circles there was no
consensus on what the documents revealed. <a
href="http://www.hrw.org/reports/2002/isrl-pa/ISRAELPA1002-07.htm">Human
Rights Watch analyzed</a> 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.</p>
<p>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.”</p>
<h2><strong>When state terror is immune</strong></h2>
<p>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 <em>are</em> state policy.</p>
<p>Consider the case against then-director of Israel’s General
Security Service (also known as <a
href="http://electronicintifada.net/tags/shin-bet">Shin Bet</a>
or Shabak), <a
href="http://electronicintifada.net/tags/avi-dichter">Avi
Dichter</a>, 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.</p>
<p>The Center for Constitutional Rights <a
href="http://ccrjustice.org/ourcases/current-cases/matar-v.-dichter">filed
a case against Dichter</a> 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.</p>
<p>During the appeals process, Israeli ambassador <a
href="http://electronicintifada.net/tags/danny-ayalon">Danny
Ayalon</a> sent a <a
href="http://ccrjustice.org/files/Israeli%20ambassador%27s%20letter.pdf">letter
to the court</a> taking full responsibility for the
bombing on behalf of the Israeli government while arguing for
Dichter’s immunity.</p>
<p>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.”</p>
<p>The Bush administration also <a
href="http://ccrjustice.org/files/Matar%20v%20%20Dichter,%20US%20for%20Defendants%20Amicus%20Brief%2012.19.07.pdf">opposed
the prosecution of Dichter</a> and, similarly, the Obama
Administration <a
href="http://www.reuters.com/article/2008/08/14/us-saudi-lawsuit-idUSN1448612320080814">opposed
the prosecution of Saudi Arabia</a> for its alleged role in
supporting the hijackers involved in the 11 September 2001
attacks in the United States.</p>
<p>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.</p>
<p>“Foreign official immunity serves as a vital protection
against such interference by private litigants,” the <a
href="http://ccrjustice.org/files/Matar%20v%20%20Dichter,%20US%20for%20Defendants%20Amicus%20Brief%2012.19.07.pdf">State
Department wrote in a friend of the court brief</a>. So
though the PA is not eligible for immunity as a recognized
state, its officials might still be granted protection.</p>
<p>While the White House could still intervene as the case winds
its way through US courts, <a
href="http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1007&context=jmeil">there
is no precedent</a> for a US administration intervening in
legal proceedings to argue for Palestinians’ right to foreign
immunity.</p>
<p>If one needed any more evidence that the US is not concerned
with respecting Palestinian sovereignty, one can find it in US
courts.</p>
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