Everything in the case turns on the issue of whether Israel and Israeli settlers properly control the “disputed territory.” That is a political and foreign policy question, and the court was wrong to reinstate the lawsuit.
In March 2016, we covered the filing of a lawsuit by notorious Palestinian activist Bassem Tamimi and others against a long list of U.S. persons and entities alleging war crimes due to their support for Israel, Palestinian Bassem al-Tamimi lead plaintiff in suit against dozens of Americans for supporting Israel:
A group of Palestinians led by professional provocateur and propagandist Bassem Al-Tamimi has filed suit against a slew of Americans, American businesses, American organizations, international businesses and Israeli entities. The Complaint is embedded at the bottom of this post.
Altogether nineteen Plaintiffs have brought claims against fifty-three defendants. Plaintiffs’ attorneys are Martin F. McMahon, a colleague in his law firm, and Sameer Jarrah, who claims a license to practice law in Jordan.
Al-Tamimi is a familiar figure. He is at the heart of LI’s ongoing battle with Ithica, New York’s public school system (where he encouraged third-graders to become “freedom fighters for Palestine”), peddles the blood libel that Israel harvests and sells Palestinians’ organs, and useshis own daughter (and other children) as props in his war against Israel (more here)….
The claims are broad: Civil conspiracy; war crimes, crimes against humanity, and genocide; aggravated and ongoing trespass; RICO, and; war crime of pillage. Even aside from the lack of any factual support, Plaintiffs confront serious technical and legal challenges which we will explore in later posts.
In September 2017, the U.S. District Court dismissed the lawsuit on the ground that it involved political questions beyond the jurisdiction of the court, Court throws out suit against Sheldon Adelson and others over support for Israel:
Here is the Court’s summary of its ruling:
As more fully explained below, upon careful review of the Amended Complaint and the parties’ filings, the court concludes that it lacks jurisdiction to hear Plaintiffs’ claims against the United States, as Congress has not waived sovereign immunity for such claims. The court further concludes that it lacks subject matter jurisdiction to adjudicate the claims against all Defendants because they are replete with nonjusticiable political questions. Accordingly, the court will GRANT both motions to dismiss and will dismiss Plaintiffs’ claims against all Defendants.
The key finding, which in itself warranted dismissal, was that the case involved political questions which courts cannot rule upon:
All Defendants argue that this court lacks subject matter jurisdiction under the political question doctrine….
If this case were permitted to go forward, resolution of Plaintiffs’ claims for trespass, genocide, and other war crimes would require this Court to determine: (1) the limits of state sovereignty in foreign territories where boundaries have been disputed since at least 1967; (2) the rights of private landowners in those territories; (3) the legality of Israeli settlements in the West Bank, Gaza, and East Jerusalem; and (4) whether the actions of Israeli soldiers and private settlers in the disputed territories constitute enocide and ethnic cleansing. With respect to the Defendants in this case, the court would further have to decide whether contributing funds to or performing services in these settlements is inherently unlawful and tortious, as Plaintiffs allege that settlement expansion is inextricably tied to violence against Palestinians….
In general, issues involving foreign policy are constitutionally committed to the political branches of the federal government, and therefore normally constitute non-justiciable political questions…. However, Plaintiffs ask this court to wade into foreign policy involving one of the most protracted diplomatic disputes in recent memory…. and therefore Plaintiffs’ claims are ultimately non-justiciable….
Where, as here, the court is asked to make a determination on issues at the forefront of global relations while the United States government continues to determine how best to approach these same issues, it should decline to weigh in on such sensitive diplomatic and geopolitical matters….
… Plaintiffs’ claims—against both the United States and the remaining Defendants—raise non-justiciable political questions, which deprive this court of subject matter jurisdiction. Accordingly, the motions to dismiss will be GRANTED.
The court then went through other grounds for dismissal, such as sovereign immunity, and also found those grounds required dismissal as to specific defendants.
The Court concluded:
The Palestinian and Palestinian-American Plaintiffs in this lawsuit allege that they have experienced immense loss of life, liberty, and property over the last several decades, and they seek justice and compensation for violence they have experienced. At the core of their Amended Complaint, however, is the request for this court to adjudicate and resolve the lawfulness of the development of Israeli settlements in Gaza, the West Bank, and East Jerusalem stretching over thirty years into the past. This issue, both close to the heart of the ongoing Israeli-Palestinian conflict and central to the United States’ foreign policy decision-making in the region, is simply inappropriate for this court to resolve. Instead, these issues must be decided by the political branches. As a result, for the foregoing reasons, this court will GRANT both motions to dismiss.
The U.S. Court of Appeals has just reinstated the lawsuit. Reuters reports:
In a 3-0 decision on Tuesday, the U.S. Court of Appeals for the D.C. Circuit said a federal district judge wrongly concluded in August 2017 that all of the plaintiffs’ claims raised political questions that could not be decided in American courts….
… in Tuesday’s decision, without ruling on the merits, Circuit Judge Karen LeCraft Henderson said the only political question concerned who had sovereignty over the Israeli-occupied territories.
She said courts could rule on whether the defendants conspired to expel non-Jews or committed war crimes “without touching the sovereignty question, if it concluded that Israeli settlers are committing genocide.”
Henderson said that presented a “purely legal issue” because genocide violated the law of nations, and could support the plaintiffs’ claim under the federal Alien Tort Statute.
Of note, the courts refers to the territories in question as “disputed territory,” rather than the popular “occupied territory.” Israel has a legal claim to the “West Bank” despite the propaganda otherwise:
1 The ownership of the territory, which comprises the WestBank, including East Jerusalem, and the Gaza Strip, is at the heart of a decades-long dispute between the Israelis and the Palestinians. We refer to it as the “disputed territory.”
The court clearly is wrong on the issue of whether the complaint raises non-justiciable political questions. Everything in the case turns on the issue of whether Israel and Israeli settlers properly control the “disputed territory.” That is a political and foreign policy question.
Hopefully either the D.C. Circuit will hear the case en banc, or the Supreme Court will take the case.
Tamimi v. Adelson – US Cour… by on ScribdDONATE
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