Olivia Flasch

Aliens, unite

A very interesting judgment is in the making. It appears that a number of U.S. citizens have brought charges against the Palestinian Authority (PA) and the Palestinian Liberation Organization (PLO) for terrorist attacks committed between the years of 2001 and 2004. The attacks, committed during the Second Intifada, killed at least thirty-three people, out of which a number were Americans. Their families now claim $3 billion in damages from the PA and the PLO, who they argue were directly supporting and financing the terrorists.

In the 2008 judgment before the SDNY District Court, the PA and PLO challenged the competence of the Court to hear this case on multiple grounds. First, they argued that the Court had no subject matter jurisdiction, as the subject matter of the case – the terrorist attacks, were committed outside of the U.S. Second, they argued that the Court had no personal jurisdiction, as the persons on trial – the defendants, did not have sufficient contacts with the U.S. for a U.S. Court to hear a case against them. Third, they argued that the Court was barred from hearing the case as a result of sovereign immunity. As with most laws, the Anti-Terrorism Act contains an immunity clause, prohibiting cases to be brought against government agents acting on behalf of the State. Sovereign immunity is an international legal notion, arising as a result of the maxim par im parem non habet imperium, or “equals [read States] do not have authority over one another”. Of course, by raising this claim, the PA and PLO attempted to shield themselves from the lawsuit by saying “it doesn’t matter what you claim that we did, you can’t sue us for it because we are a State”. But it does indeed feel like an admission that the terrorists were in fact acting on official orders of the “State of Palestine”.

In regards to the claim against subject matter jurisdiction, the Court held that the Anti-Terrorism Act grants jurisdiction on the basis of international terrorism, meaning that the terrorist attacks need to have been committed outside the U.S. for the plaintiffs to be able to sue. As for personal jurisdiction, the Court found that the PA and PLO have “sufficient minimum contacts” with the U.S. to give it the right to hear the case. As for sovereign immunity, naturally, the Court found that since Palestine is not a State, and certainly not recognized as such by the U.S., sovereign immunity doesn’t hold up. And so the case has moved forward, and has now reached the final stages before the New York Federal Court. We wait in excitement for the jury to decide.

It is, naturally, a welcome development that the families of these terror victims have taken it upon themselves to seek justice for their loved ones. But far more could be done. What is interesting about the U.S. legal system is the applicability of the Alien Tort Statute. This is a phenomenon that allows an alien of the U.S. to sue anyone, regardless of nationality, citizenship, or residence, before a U.S. Court, for a tort committed “in violation of the law of nations or a treaty of the United States”. What this statutory instrument does is confer universal jurisdiction for civil actions to U.S. Courts. Universal criminal jurisdiction is already a tricky subject. Universal civil jurisdiction, under the Alien Tort Statute, takes it to a whole new level. See, normally, the right of a Court to hear a case (its jurisdiction), needs to be based on something. It is most often based on territoriality – that the crime in question occurred within the country of that Court. It may also be based on, for instance, the nationality of the victim or the nationality of the offender, which links them to that Court. Universal criminal jurisdiction, on the other hand, grants the right to a Court to prosecute someone for a crime when there is no link to the Court, or country, at all. Us familiar with international law remember this well from the Eichmann trial. In that case, the Supreme Court of Israel argued for its right to exercise jurisdiction over Eichmann despite the fact that he was neither Israeli, nor had he been responsible for the murder of Israelis (as Israel as a State did not exist at the time of the crime), nor did his crimes occur in Israel. The Court exercised universal criminal jurisdiction over him, on the basis of the heinous nature of the crimes he committed against the Jewish people.

One of the most famous cases brought before a court in the U.S. under the Alien Tort Statute, is the case of Kiobel v Royal Dutch Petroleum Co. In this landmark case, a group of Nigerian citizens sued the company Shell for aiding and abetting the Nigerian government in committing, amongst others, murder and torture during a peaceful resistance against the oil development in the Ogoni Niger River Delta in the 1990’s. While acknowledging the far reach of the Alien Tort Statute, the Court held for the first time that there must be some form of link with the U.S. for it to be applicable. In one of the only two cases where the Statute has been used to confer jurisdiction, the plaintiffs were Paraguayan citizens who resided in the U.S., indicating that such a connection may be sufficient.

In this regard, while the case against the PA and PLO currently under way is an excellent start, justice for terrorism victims shouldn’t be limited to American citizens only. There are countless Israelis residing in the U.S., several of whom probably have one connection or another to persons falling victim to terrorist attacks committed by Hamas in Israel. Perhaps it is worth for them to consider raising another claim against the PA and PLO under the Alien Tort Statute, to prevent these heinous acts from going unpunished.

About the Author
Olivia Flasch is an international lawyer who currently lives in London. She studied Public International Law in The Hague, and has a Master's in Law from the University of Oxford. Born into a Jewish family in Sweden, she writes about all things Jewish, as well as about Israel and the world from an international law perspective.