Punishing All the Guilty

I gratefully acknowledge the advice and counsel of my friend, Mark Goldfeder, Director of the National Jewish Advocacy Center.  The views expressed herein are the opinions of the author, and any errors are his (that is, mine) alone.

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I had a troubling dream last night that took me back to my law school exams, in which clever professors propounded impossibly complex, barely imaginable, situations, and challenged the students to identify all the related legal issues.  My dream, or nightmare, “case” was as follows: “An elderly football fan nicknamed “Pa,” who hid his strong passions behind an avuncular veneer of moderation, wanted his favorite team to win the championship, and viscerally loathed the team’s adversaries.  In addition to sponsoring local, team-based activities, he widely disseminated announcements to the public to the effect that he would pay a generous bounty to anyone who murdered players on certain designated rival teams.  Moreover, he committed to provide a stipend if and while they were incarcerated for such activities and to provide monthly post-mortem payments to their families if they died in the effort.  He never actually directed anyone to take any specific action, but his employees occasionally provided support and assistance to murderers seeking the bounty. What would be the civil and criminal penalties, if many people accepted the offer and followed through with criminal acts? How many crimes can you identify?  What civil remedies are available?”

It was, of course, just a dream.  An outlandish dream, at that.

Back in the real world, this past week the US Justice Department finally announced criminal charges against six Hamas leaders, including Yahya Sinwar and some of his already deceased colleagues, for their roles in the October 7 attack in which United States citizens were kidnapped and murdered.  Better late than never, but not nearly enough.

The charges include, inter alia, providing material support to a foreign terrorist organization resulting in death, and conspiracy to murder US nationals.  The complaint identifies the support provided to Hamas by Iran as well as Hezbollah (identified as an allied terrorist organization) and also calls out the Iranian Revolutionary Guard Corps for assisting Hamas in a number of critical ways.  Perhaps one day the US will also be bold enough to proceed effectively against those conspirators.

While we are on the subject of material support to terrorists, however, let us take note of the lamentable fact that the Palestinian Authority (PA: what a coincidence!) provides financial incentives to anyone who kills Israelis, including those who are American citizens.  The PA has made it clear that those who participated in the October 7 massacre qualify. Its moral culpability for the murders that it solicits in this way should be obvious to any rational person, whether or not he or she attended law school, and its legal liability no less so.

Let there be no mistake:  By promising and making payments to the perpetrators of these crimes and their families, the Palestinian Authority encourages, solicits, enables, promotes, and engenders the unlawful acts that are committed.  It and its responsible agents should be subject to criminal and civil penalties and their assets should be available to satisfy their liabilities after adverse judgments are obtained.

Definitions:  An “Accomplice” is one who provides assistance or encouragement with the intent thereby to promote or facilitate the commission of a crime.  A person who aids, abets, or encourages another to commit a crime need not be present at the scene to be culpable as an accomplice.  One may be guilty of solicitation if he requests or induces another person to commit a crime.  An “Accessory” is one who knowingly and voluntarily aids the perpetrator of a crime before or after it is committed. A wide range of defendants may be held jointly and severally liable for damages, including, among others, those who knowingly assist in causing injury and those who incite or aid another to cause injury.

The PA’s notorious public policy of making payments to prisoners convicted of attacks against Israeli civilians and to the surviving families of suicide bombers and other deceased terrorists is both longstanding and well publicized.  It even has a colloquial nickname: “pay-to-slay.” Over $300,000,000 annually, comprising 7-10% of the annual PA budget, is allocated to terrorists or their families, with initial payments customarily paid within hours or days after the crime is committed. The terrorists commit the crimes knowing that by doing so they will earn this “reward” and a number of them have, after arrest, admitted that it was the lucrative awards that induced them to commit the crimes. Successful murderers can make more than the average lawyer or doctor and can provide well for their families. The PA makes no secret of its complicity and has insisted time and again that no economic sanction will affect its pay-to-slay program.  President Mahmoud Abbas has declared that the PA would continue to pay the stipends even if it was down to its last penny.

This is not the appropriate forum to discuss the Taylor Force Act, the 1990 Antiterrorism Act, the Foreign Sovereign Immunities Act (an exception to which, added in 1996, withholds immunity from state sponsors of terrorism in cases alleging their responsibility for the death or personal injury of U.S. citizens), or the Racketeer Influenced and Corrupt Organizations Act (RICO), which makes it unlawful to engage in a pattern of racketeering activity in association with an enterprise. RICO has criminal and civil application, and has been interpreted to include extraterritorial activity, so long as the enterprise has a nexus to the United States.  Of course, the PA conducts activities in the U.S., including commercial activity raising money. 

But we do not have to get that fancy.

Suffice it to say that murdering an American citizen is a crime. So, without much doubt, is inducing a third party to murder an American citizen, by publicizing, and subsequently paying, a monetary reward for commission of that murder. There may be civil remedies as well.

Recipients of pay-to-slay proceeds have murdered U.S. citizens.

For some reason, prior to the recent action against the Hamas leaders, the U.S. government has been slow to enforce its laws and hesitant to punish those who have killed innocent American citizens. Take Ahlam Tamimi, the mastermind of the 2001 Sbarro pizzeria bombing in Jerusalem, who gleefully admitted to murdering innocent men, women, and children, including American citizen Malki Roth. This assassin still lives freely in Jordan despite the U.S. having an extradition treaty with the Kingdom (though Jordan would surely oppose extradition, absent significant pressure). To date, she is believed to have received hundreds of thousands of dollars in murder stipends from the PA.

Well over 150 American citizens have been killed by Palestinian terrorists since 1968, and not one of those terrorists or their enablers has ever been brought to the United States to stand trial. Senior members of the PA with responsibility for the pay-to-slay program visit the United States on a regular basis.  At the very least, they merit sanctions at least as much as the “violent Jewish settlers” recently sanctioned by the US. 

There have been some sporadic efforts to bring individual tortfeasors to justice, and some damages have been awarded to surviving family members, but this is insufficient. Perhaps the Hamas prosecution indicates a new initiative and a new willingness to pursue those responsible, but if the U.S. Attorney-General is reluctant to follow up against the PA on behalf of murdered U.S. civilians, then perhaps States and the private sector should. Perhaps some bold State Attorneys-General will seek justice for their injured and murdered citizens. Perhaps the plaintiffs’ bar that brought Big Tobacco to its knees could undertake this project.  Perhaps there could be a multi-state and multi-jurisdictional consortium of Attorneys-General, public interest organizations that seek justice for victims, and plaintiffs’ lawyers, dedicated to discovering and pursuing every individual and organization that provides support to the entities that encourage, incite, and reward violence.

Let the PA be financially liable for damages, and spend money it would otherwise pay to murderers to defend its actions in court.

The sad fact is that no punishment and no compensation will ever restore the losses that the PA’s policies have caused.  But assigning some accountability might be a better strategy than the failed paradigm of rewarding Palestinian intransigence.  That policy has never brought the region closer to peace and it never will.  The PA has banked on the assumption that the guys who only pay assassins, as opposed to those who actually pull the trigger, will be deemed more moderate and trustworthy.  It is time for them to be disabused of that ridiculous notion.  In the unlikely event that they ever actually want to be considered legitimate partners for peace, the US and other responsible entities need to get past the soft bigotry of low expectations and start to hold them responsible for their actions. Perhaps that will motivate them to modify their behavior.