These actions have been unsuccessful thus far in producing any tangible outcome; primarily due to the significant role the political branches of the US government play in the outcome of such cases. Whatever positive impact these cases can have in the worldwide search for accountability for Palestinian victims remains to be seen; however, there is no doubt that these cases are a large drain on the legal resources available for such victims.
For reasons briefly summarized below, lawyers have viewed litigation for Palestinian victims in domestic courts as having strategic value in filling the Palestinian “protection gap,” and in seeking to equalize a grossly distorted imbalance of power between Israel and its allies on the one hand, and the Palestinians on the other. US legal cases have been viewed as strategically similar to those brought in other states’ domestic courts on behalf of Palestinian refugees. Lawyers have assumed that such cases would contribute to reducing what is often referred to as the “protection gap” that unique and complex confluence of factors resulting in a denial of effective international protection of Palestinian refugees as a global population. The protection gap, understood as a lack of enforceable legal rights and remedies for Palestinians worldwide, along with lack of international political will, explains why normal avenues of redress for human rights victims have been starkly absent for Palestinians.Palestinians as vulnerable victims—as refugees, stateless and displaced persons—represent the largest and longest-standing displaced population in the world. Yet, minimum treaty or customary provisions that bind states in their actions towards such vulnerable populations have been interpreted as essentially excluding Palestinians from their reach. To a great degree, this is also true vis-à-vis the UN and its specialized bodies with mandates over refugees and other vulnerable victims. For example, minimum international guarantees towards refugees and stateless persons such as the right to return to place of origin, to restitution of property, or to compensation for losses, have not even been recognized as ‘rights’ for Palestinians, much less implemented at any level.
What makes implementation of these rights so critical for Palestinians is not only that they comprise the largest global population of the displaced and the stateless, but that they have no recognized national government to intercede on their behalf at the international level, nor a recognized state territory where their rights can be protected. Hence, no government can implement those rights normally protected at the national level: the right to return and repossess property, the right of redress for crimes or wrongs through domestic courts, or the implementation of ordinary civil rights through domestic administrative processes. Since there is no Palestinian state, only Israel has actual jurisdiction to implement such claims, and no such claims are available or viable through Israeli judicial or administrative mechanisms for Palestinian refugees or stateless persons; such claims have proved overwhelmingly unsuccessful even for Palestinian citizens of the Israeli state.2
Aside from the lack of national protection for Palestinians, most host states where the majority of Palestinian refugees reside do not recognize or do not apply the full panoply of basic rights afforded to them as refugees under relevant international and regional instruments. This absence of refugee recognition relates to the prevalent interpretation of key provisions in the international treaties that were drafted to provide international protection to Palestinians as refugees and stateless persons; through misinterpretation and misapplication, these provisions have utterly failed to guarantee minimum rights. Hence, no international agency is currently recognized by the international community as having an explicit mandate to systematically work for the realization of the basic human rights of Palestinian refugees and to search for and implement durable solutions consistent with international law. Practically, this anomaly means that most of the over five million Palestinian refugees - nearly one third of the world’s total refugee population - do not have meaningful access to international protection that is legally required or available to other refugee populations.
Thus, the work of lawyers and activists in using US domestic tort and corporate liability laws to demand redress for egregious rights violations on behalf of Palestinian victims, is aimed at playing a critical strategic role in the global civil society movement to redress the Palestinian protection gap. So far, however, US cases do not appear to be furthering this strategic role. These cases have established only negative precedents, and perhaps US law is not sufficiently robust or claimant-neutral to protect Palestinians in the full panoply of rights to which they are entitled. In reviewing the history of these cases to date, the appropriate conclusion may be to leave such claims to countries with stronger universal jurisdiction laws and more independent judicial systems than the US.
I. Background to Universal Jurisdiction Under US Law.
Although the United States has promoted the concept and implementation of universal jurisdiction in its international relations and has ratified a number of treaties that incorporate universal jurisdiction over prosecution of certain crimes, its record of domestic application of universal jurisdiction to prosecute gross human rights violators is uneven at best. Since 1955, the US has been a party to the 1949 Geneva Conventions, which require states to seek out and prosecute persons who are suspected of committing grave breaches such as torture, murder, and cruel or degrading treatment during times of war.3 The Four Geneva Conventions’ universal jurisdiction provisions have been incorporated into the US’ uniform code of military justice, and—at least until 11 September 2001—were a relatively uncontroversial feature of US obligations in times of international conflict.4
Aside from the context of international humanitarian law, the US has ratified the International Convention against the Taking of Hostages, the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, and the Convention for the Suppression of Unlawful Seizure of Aircraft—all of which require a state party to exercise jurisdiction over an alleged offender found on the state’s territory regardless of the offender’s nationality.5 US courts have affirmed or exercised universal jurisdiction against alleged offenders under these Conventions. In United States v. Yunis, the federal district court and the District of Columbia Court of Appeals upheld the exercise of jurisdiction over Fawaz Yunis for hijacking and destroying a foreign airplane in Lebanon. Both courts gave strongly-worded opinions that universal jurisdiction was warranted in US prosecutions against particularly egregious international crimes.6 However, cases brought under these Conventions have been overwhelmingly against Palestinians, or other Arab or Muslim defendants.7 No Israeli has ever been prosecuted under these treaties in US courts.
One of the most important recent developments for expanding universal jurisdiction in the US has been its ratification of the Convention Against Torture (CAT), which requires a state party to extradite torturers or to prosecute them when found on US soil.8 When the US codified the CAT in domestic law, it incorporated the universal jurisdiction provisions of the treaty. Under the law, the US has criminal jurisdiction if the violator is a US national or if the violator is on US territory-- no matter what the nationality of either the violator or victim, and no matter where the torture took place.9 When the US ratified the CAT, the State Department strongly supported the universal jurisdiction provisions in it.10 In a 2002 study on the issue, Amnesty International pointed out that at that time no prosecutions had been made against torturers under the CAT, claiming that political considerations and excessively conservative Justice Department interpretations of the jurisdictional provisions were to blame.11 The first case in which the US has actually prosecuted an alleged torturer under the CAT occurred only recently, against Chuckie Taylor of Liberia.12
Criminal prosecutions are not the only means through which victims of egregious human rights abuses can seek remedies in US courts, however. Since 1980, courts in the US have allowed foreign victims to sue for civil redress against foreign defendants. There are two statutes that permit such lawsuits directly against perpetrators, and in most cases when Israel or Israeli defendants are sued, plaintiffs bring their claims under the Alien Tort Claims Act (ATCA) and the Torture Victim Protection Act (TVPA).13
The ATCA, enacted in 1789, allows aliens (plaintiffs who are not US citizens) to sue in US federal courts for damages for violations of international law or a US treaty. The law does not require that the defendant’s actions take place in the US, or that the defendant be a US citizen. The 1980 landmark case of Filartiga v. Pena-Irala14 was the first successful use of the ATCA to enable victims of international human rights violations to sue in US courts.
Since that decision, US federal courts have applied the ATCA in dozens of cases involving claims for genocide, extrajudicial execution, torture, war crimes and crimes against humanity. In 2004, the Supreme Court affirmed the use of the ATCA for this purpose in the case Sosa v. Alvarez-Machain,15 holding that the ATCA provides US federal courts with jurisdiction over claims based on international law norms that are clearly defined, widely accepted and obligatory. Plaintiffs have brought ATCA claims against direct perpetrators and commanding officers, government officials and private actors, individuals and corporations.16
The Torture Victim Protection Act (TVPA) of 1992 grants both aliens and US citizens the right to sue individuals for damages for acts of torture and extrajudicial execution committed anywhere in the world “under actual or apparent authority, or color of law, of any foreign nation.” The law essentially provides a private cause of action for damages against foreign government officials, and the TVPA legislative history specifies that such officials are not entitled to immunity against TVPA claims (although the Foreign Sovereign Immunities Act undermines this exception, as discussed further below). Courts have applied the TVPA to direct perpetrators, persons who ordered, abetted or assisted in the violation, and higher-ups who authorized, tolerated or knowingly ignored violations.17
Some of the most important differences between the TVPA and ATCA include the TVPA requirement that plaintiffs first exhaust any (adequate) remedies available under the domestic law of the nation where the alleged violations occurred, and the fact that the TVPA authorizes a much narrower set of potential claims than the ATCA. For this reason, TVPA claims are typically brought in conjunction with claims under the much broader ATCA. As discussed further below, although the TVPA and ATCA have provided robust mechanisms for holding gross human rights violators accountable under civil tort law, they have not resulted in a single successful claim for Palestinian or Arab plaintiffs against Israeli defendants. This is also true for related indirect claims against US corporations for liability for facilitating Israeli war crimes or gross human rights violations.
II. Summary of US Litigation Against Israeli Defendants
A. Brief Summary of the Cases
The most recent efforts to challenge the impunity of Israeli violations are a series of cases brought by the New York Center for Constitutional Rights (CCR) and cooperating counsel. In 2005, CCR filed two cases in close succession. In Matar et al v. Dichter, the victims of the Israeli bombing of a residential building in Gaza City in 2002 brought a class action against Avraham Dichter for his role in the bombing, seeking damages for the deaths of their loved ones, and injuries.18 The Israeli air force dropped a one-ton bomb in the crowded al-Daraj neighborhood of Gaza in what it termed a “targeted assassination” of Salah Shehadeh. Shehadeh was killed along with 17 other Palestinians, including his family members, and over 150 Palestinian civilians were injured. Dichter, director of the Israeli General Security Service (“GSS”), gave final approval for the attack knowing Shehadeh’s wife was with him and at least ten other civilians would be killed, and that many other civilians were present in the densely populated neighborhood.
Plaintiffs sued Dichter under the ATCA, the TVPA and US domestic law, but their suit was dismissed on the grounds of sovereign immunity.
In the second case brought by CCR in 2005, Belhas v. Ya’alon, the victims and family members of the1996 massacre of over 100 civilians in a UN compound in Qana, Lebanon brought a class action against retired IDF General Moshe Ya’alon for his role in the attack.19 The victims sought damages for injuries and the deaths of their families. At the time of the attack, Ya’alon was the Head of Army Intelligence. There was evidence the IDF knew, before and during the attack that civilians were in the compound. They continued to shell the compound even after being notified by UNIFIL that they were shelling a UN position in which hundreds of civilians were taking shelter. A UN review of the incident concluded it was unlikely the shelling of the compound was accidental. Israel paid compensation to the UN for damage and injuries to UN facilities and personnel, but no compensation was paid to the victims.
Plaintiffs sued Ya’alon under the ATCA and TVPA, but their claims were dismissed on the grounds of sovereign immunity.
A third case brought by CCR at about the same time was Corrie et al v. Caterpillar, Inc.20 This case was not a civil tort action against the direct perpetrators of the wrongs alleged, but a manufacturers’ liability claim. Rachel Corrie, a 24-year old activist from Olympia, Washington, was deliberately crushed to death by an IDF officer using a US-manufactured Caterpillar bulldozer when she was attempting to prevent the army’s demolition of a Palestinian home in the Gaza Strip. The Corrie family and a number of Palestinians living in the Gaza Strip and the West Bank sued the US corporation Caterpillar Inc., seeking damages for death, injury, and property damage resulting from illegal demolitions by the IDF using Caterpillar bulldozers, and an injunction on future sales until the IDF ceased its illegal practices. Plaintiffs alleged that Caterpillar sold the bulldozers directly to Israel and the IDF knowing they would be used for illegal purposes (such as depopulating areas for settlements and bypass roads, collective punishment, and clearing paths for attacks on civilian neighborhoods), adapted them for military use and provided technical assistance and training.
Plaintiffs sued Caterpillar under the ATCA, TVPA and domestic US law, but their claims were dismissed on political question grounds.
In an unrelated case brought by private lawyers, Doe v. Israel,21 Palestinians living in Israel, the West Bank and the US sued the State of Israel, high-ranking US and Israeli officials, American defense contractors and certain Israeli settlers, seeking damages for personal and financial injury and emotional distress from the settlement and occupation of the West Bank. Plaintiffs alleged that US officials and defense contractors aided and abetted the Israeli officials in implementing the illegal occupation, and that the Israeli settlers had solicited funds from US donors to aid that effort.
Plaintiffs sued under the ATCA, TVPA and domestic US law, but their claims were dismissed on sovereign immunity and political question grounds.22
In a much earlier case brought during the first Intifada in the 1980’s, Abu-Zeineh v. Federal Laboratories, Inc. and Transtechnology Corporation,23 Palestinians sued US manufacturers of CS gas, a chemical agent, seeking damages for the deaths of their relatives exposed to the gas by IDF attacks in the occupied Palestinian territory and around Jerusalem. Six of the nine Palestinians plaintiffs were citizens of Jordan.
Plaintiffs sued the US manufacturers, alleging they manufactured defective CS gas and negligently sold the gas to the Israeli government. The court dismissed the case on the grounds that it did not have jurisdiction over the case because the plaintiffs were not citizens of any state, and hence could not satisfy the diversity jurisdiction requirement, as described further below.
B. Main Legal Obstacles to Recovery Against Israeli Defendants
As the outcome of each of these cases makes clear, there are some major obstacles plaintiffs face in suing Israeli defendants and their aiders and abettors. These issues, discussed below, appear to be insurmountable in cases against Israeli defendants, although they have not precluded recovery against Palestinian or Arab defendants in similar cases.
1. Sovereign Immunity
The most difficult hurdle plaintiffs face in suing an Israeli official is that of sovereign immunity. The Dichter and Ya’alon cases, and certain claims in Doe v. Israel all were dismissed because the defendant was held to be immune from the lawsuit.
US federal courts have jurisdiction over civil actions against a foreign state provided the foreign state is not entitled to immunity under the Foreign Sovereign Immunities Act (FSIA).24 A foreign state is immune from suit unless one of the exceptions to immunity enumerated in the FSIA apply.25 The FSIA defines “foreign state” to include a state’s “agencies and instrumentalities.” Some, but not all US courts, consider individuals “agencies or instrumentalities” when they act in their official capacities.
The courts in the Dichter and Ya’alon cases followed this principle. The court in Dichter also held that former officials, sued after they retired, are entitled to sovereign immunity, relying not on the FSIA (which is silent on the issue), but on principles of common law (or case law) that pre-dated, and in the court’s view, survived enactment of the FSIA.
Plaintiffs in these cases also failed in their arguments that FSIA immunity is implicitly waived in circumstances involving violations of jus cogens international law principles, and by enactment of the TVPA which imposes liability on foreign officials acting within the scope of their authority. Both courts held there can be no implied waiver of sovereign immunity under the FSIA; the only exceptions to immunity are those contained in the language of the FSIA.
In 1996, the FSIA was amended to allow lawsuits against foreign states for acts of torture, extrajudicial killing, hostage taking and aircraft sabotage, as long as certain conditions were met. These conditions are that the plaintiff or victim must be a national of the US; the foreign state must be designated a “state sponsor of terrorism” under US law; and the foreign state must have the opportunity to investigate or prosecute the wrong if it took place on its territory.26 The US has designated Iraq, Iran, Syria, Libya, Cuba, North Korea and Sudan as the only state sponsors of terror.27 In 2000, the US passed the Anti-Terrorism Act (ATA), which permits civil suits or prosecutions on behalf of US nationals who are victims of international terrorism. The ATA permits suits against non-state entities, which includes the PLO and the PA. The combination of the ATA and the amended FSIA preclude successfully suing Israeli defendants or Israel for war crimes or gross violations because of the application of US immunity principles. At the same time, numerous lawsuits have been successful against other defendants under the ‘statesponsored terrorism’ exception of the FSIA, resulting in substantial damage awards.28
2. Political Question Doctrine
Another difficult hurdle is the political question doctrine. Claims in the Caterpillar and Doe v. Israel cases were dismissed as presenting a “non-justiciable” political question. Stated generally, a political question is one that is not appropriate for a court to decide, but rather should be decided by the political branches of government - the executive or legislature.29 Because decisions by the executive and certainly by the US Congress almost always favor Israel, application of this doctrine – i.e. deferring to the other branches –will favor defendants in these cases.
In Caterpillar, the court first made a factual finding that the US government pays for every bulldozer the IDF purchases from Caterpillar, and then dismissed the case on the grounds that it could not impose liability on Caterpillar without interfering with the foreign policy decision of the executive to pay for the bulldozers. The plaintiffs were not given the opportunity to investigate whether the US has indeed paid for every single Caterpillar bulldozer Israel has purchased.
In Doe v. Israel, the court found the case presented a political question because the case involved questions of foreign policy. The court determined that disputes over ownership of land between Israel and the Palestinians; determinations whether settlement activities are illegal; whether US support for Israel is illegal under US law; or whether Israeli actions are genocide or self-defense, are all political questions for the executive and legislature to answer, not the courts. In this court’s view, the Israeli-Palestinian conflict is “quintessentially political in nature.”30
Thus, it appears that because the executive branch is heavily involved in mediating the Israeli-Palestinian conflict, because Congress appropriates billions in arms sales to Israel, and because Israel is considered a staunch ally, defendants will prevail in the argument that these cases interfere in foreign policy decisions already made by the political branches.
3. Act of State Doctrine
In all of these cases except Abu-Zeineh, defendants argued that dismissal was required by the act of state doctrine, by which courts refrain from judging the actions of a foreign state in its own territory. The requirements of this doctrine are (a) an official public act of a state (b) in its territory (c) where barring adjudication of the case would be appropriate.31
This may be the weakest argument presented by defendants in these cases because the challenged actions occurred outside Israel’s sovereign territory (in the occupied Palestinian territories and Lebanon) and violations of international law cannot be official acts of state. Other factors also weigh in favor of plaintiffs, such as the high degree of consensus among nations concerning the international norms the State of Israel violates, and the fact that the US government sometimes condemns acts by Israel (like the Shehadeh assassination) so there is no risk of interference with the executive’s conduct of foreign relations.
Ultimately, none of the cases were decided on the basis of this doctrine.
4. Lack of Jurisdiction Due to Palestinian Statelessness
The Abu-Zeineh case did not involve a claim under the ATCA (which allows aliens to sue for international law violations) and Palestinians’ refugee status precluded their access to US courts to enforce domestic US law.
A US federal court has jurisdiction over a civil case if, among other things, the case is between citizens of a US State and “citizens or subjects of a foreign state.” The foreign state must be recognized – de jure or de facto - by the Executive Branch of the US government at the time the complaint is filed. In this case, the claims by Palestinian plaintiffs were dismissed because there is no de jure recognition of Palestine as a state, and according to the State Department, no de facto recognition either.
Claims brought by six West Bank residents who argued they were both Palestinian and Jordanian citizens also were dismissed on the basis of defendant’s expert witness testimony (because the State Department did not offer an opinion on this question) that statements by Jordanian government officials immediately after Jordan severed its ties with the West Bank proved that the West Bank plaintiffs were not Jordanian citizens. The court did not find persuasive the Jordanian Ambassador’s statement that West Bank residents are given two-year Jordanian passports, or his request that the court give them the same access to US courts as citizens of any foreign state.
5. Admissibility of Evidence Outside the Pleadings (Political Influence)
The views of the US State Department influenced decisions in these cases either at the court’s invitation (Dichter, Abu-Zeineh), or by filing an amicus brief32 (Caterpillar). In Ya’alon, the court relied on a letter from the Israeli Ambassador in its determination that Ya’alon was immune. The courts in Dichter, Ya’alon and Caterpillar all justified the admission of materials outside the complaint on the grounds that they were deciding whether the court had jurisdiction – i.e. authority to hear the case. While courts are certainly authorized (by US Supreme Court case precedent) to seek the views of the executive branch in some instances, the fact is that by doing so they invite the influence of those powerful political forces which so heavily impact decisions by the political branches of the US government in favor of Israel.
The use of US laws to hold Israeli defendants accountable for war crimes and other serious violations of international criminal or human rights law has not proved successful in a single case to date. The imbalance in US policy that weighs heavily in Israel’s favor also plays a decisive role in legal claims for Palestinian victims against Israelis in US courts. The policy bias clearly plays out in the lack of any prosecutions against Israeli defendants under the Geneva Conventions, the Convention on Hostage-Taking, the CAT, and similar treaties with universal jurisdiction provisions. The legislative bias apparent in such laws as the ATA and the amendments to the ATCA narrows the availability of civil lawsuits in US courts to only those state and non-state actors disfavored by the US government. Perhaps most remarkable is that even when these clear law-based barriers might be overcome, the courts themselves have elevated discretionary judicial doctrine above statutory authorization to preclude suit against Israelis.
The courts have applied a number of jurisprudential considerations to defeat application of legal provisions that might otherwise permit redress for Palestinian claimants, such as discretionary immunity grounds; finding that stateless status defeats diversity jurisdiction; political question doctrine; and even giving weight to government submissions outside the record. These barriers have been uniquely problematic in Palestinian, and Arab, cases against Israeli defendants. Activists and lawyers for Palestinians might well question whether the expenditure of so much time, energy and resources in bringing these cases in US courts has furthered the goals of obtaining global redress for these victims. The precedents of these cases suggest that perhaps US-based strategies should focus on grassroots activism rather than litigation on behalf of Palestinian claimants, at least for the near future.
*Susan M. Akram is clinical professor at Boston University School of Law and teaches and writes on international refugee, human rights and immigration law. She also supervises students representing refugees and immigrants in the asylum and human rights program at BU law school.
*Yasmine Gado is a US corporate lawyer currently living in Cairo who writes on the subject of Palestine and human rights law.