In a first, a group of Palestinians late Monday filed a whopping $34.5 billion lawsuit in a US federal court in Washington, DC against tycoon Sheldon Adelson, former top Bush administration official Elliot Abrams, megachurch pastor John Hagee and a range of banks, companies and NGOs linked to the settlement enterprise and to alleged war crimes in the three Gaza wars.
The allegations may present some complex challenges for the defendants. But some more sensational ones, like characterizing when Abrams condemned Palestinian violence before Congress or communicated with Israeli government officials as “overt acts” to “promote the settlement enterprise” which “meant the theft of... Palestinian property,” seem to be intended just to grab headlines.
The group is led by Palestinian activist Bassem Tamimi, includes about 35 other Palestinians and Palestinian-Americans and appears to seek to turn the tables in US courts on Israel and financial supporters of the settlements and the Friends of the Israeli Defense Forces.
Over the last 18 months, pro-Israel NGOs and lawyers like Shurat HaDin – Israel Law Center and Gary Osen have racked up impressive hundred-million dollar victories in US courts against the Palestinian Authority and Jordan’s Arab Bank as being linked to terrorism against Americans in Israel.
But anti-Israel civil litigation in the US has not been successful in the past.
By attempting to characterize the settlement enterprise as organized crime and the IDF as a group prone to war crimes – while completely ignoring the opposing Israeli narrative or even the likely US view on those issues – the plaintiffs seem to want to score either financial or public relations points with the lawsuit.
Some of the other prominent defendants include Bank Hapoalim, Bank Leumi, several NGOs linked to settlements, Israel Chemicals Ltd., Hewlett-Packard, Motorola, Ahava, the UK-based firm G4S, FIDF, Haim Saban, and Irving Moskowitz.
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Tamimi and his group allege five civil counts of conspiracy, trespassing, organized criminal activity, racketeering and war crimes and abuses.
The alleged organized criminal activity they refer to is what they characterize as the violent expulsion of Palestinians from their lands and the ruining of their businesses to make room for further Jewish settlements.
A graph ties Adelson, Moskowitz, Hagee and other donors to funding certain settlements and ties the establishment of those settlements to the alleged forcible expulsion of Palestinians – an issue often in dispute – as well as much wilder allegations of poisoning their water.
However, the complaint lacks details such as dates and who specifically was involved, making it difficult to even begin to evaluate many of the claims.
The alleged war crimes they refer to include: the alleged killing of 14 members of Doa’a Abu Amer’s family in the 2008-9 Gaza war, the alleged beating and disabling of Ahmed al-Zeer by settlers and a range of other alleged violent acts, including the alleged “extrajudicial” recent shooting of a Palestinian who tried to stab Israeli soldiers.
It is also difficult to evaluate the claims absent more specifics. Further, where specifics are provided – as with the February 21, 2016 shooting of Palestinian attacker Mohammed Abu Khalaf – it is far from clear whether the facts may even theoretically support a claim.
Besides the particular issues alleged, the playing field for the Palestinian-American lawsuits will be far different than for the Israeli-American ones at a global level.
The Israeli-American lawsuits were nearly exclusively focused on variations of wrongful death in suicide and other bombings, even as the allegations against specific defendants were for financing or providing logistical support for the attacks.
In contrast, the new Palestinian- American suit is for financing or connections to the settlement enterprise and to the IDF.
While noting US policy's negative view of the settlements, the plaintiffs try to argue that anyone who supported the settlement enterprise also supported violence against Palestinians and the loss of land.
Under some administrations until the Reagan administration, US policy was that the settlements were illegal. Since the Reagan administration, which explicitly said it did not believe the settlements were illegal, US administrations have instead characterized the settlements as illegitimate. However, US policy has also been to oppose any push to declare them a war crime, heavily preferring resolution of the settlement dispute as part of a global resolution of the Israeli-Palestinian conflict pursuant to the two state solution under its interpretation of UN Security Council Resolution 242 based on the Quartet Road Map and a string of later UN resolutions.
Not only might the interpretation of negative impacts on the Palestinians be hard for US courts to swallow, but establishing a cause and effect between effects on the Palestinians, the settlements and financing of the settlements requires connecting the dots more times than the Israeli-American cases required.
Shurat HaDin Director Nitsana Darshan-Leitnet stated: “The difference between our... cases, which were based on authentic claims, and the Palestinian [claims] being filed now is that their theories are stretched so far they no longer are reasonable. We were the trailblazers... and we were always meticulous to ensure that our claims were never frivolous or manufactured and the results bear that out.”
Lawyer Eric Sherby, vice chair of the International Litigation committee of the ABA, stated that there are also a range of jurisdictional issues which could blow the case out of the water on motions to dismiss, before it even gets to the details.
First, Sherby said that the Palestinian plaintiffs will have to establish standing. This means they will need to show that they have a right to US courts addressing their alleged injury, even if they are not citizens and if the harm to them was not caused in the US.
This is not impossible, but is far from guaranteed.
Second, the heart of the suit focuses on conspiracy and criminal enterprise legal theory to tie a wide range of seemingly disconnected factors together.
Sherby said that there is a general trend of courts rejecting motions to dismiss conspiracy and criminal enterprise claims, but that what may be more relevant is a counter-trend to accept motions to dismiss those claims when they relate to conduct and events that occurred outside the US.
For example, in December, the US Justice Department argued to the US Supreme Court against entertaining a conspiracy and criminal enterprise lawsuit by European governments against a group of US tobacco companies.
The US government argued that there is a domestic injury requirement – that the harm must occur in the US – for a case to go forward, as otherwise these kinds of international lawsuits may cause foreign policy friction with other states.
The US courts are not necessarily bound by the US government opinion, but courts often defer to such opinions. This signals a problem area for plaintiffs.
Responses were not expected immediately by the defendants, many of whom may not have been served yet.
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