SEATTLE — How do you hold a nation legally responsible for acts of terrorism perpetrated either by its citizens or the state itself? One solution is the International Criminal Court, which exists for such matters.
However, the ICC largely avoids taking on cases outside of Africa. Critics accuse the ICC of operating with a political agenda in terms of cases it accepts or rejects — sometimes based on financial support — and ignoring obvious war crimes. In the Mavi Marmara case linked above, the chief prosecutor rejected the case in 2014, only to be overruled by an appeals panel several months ago. The prosecutor is now appealing the appeal.
This sort of bureaucratic inertia has hobbled it from its inception.
Even if the ICC does eventually accept jurisdiction, given such resistance it appears unlikely there will be a serious attempt by the ICC to hold Israel accountable for these acts.
So far, Palestinian Authority attempts to get the court to accept jurisdiction over Israeli violations of international law have had little success. What other options or legal models may be available?
The aftermath of the May 2010 attack on the Mavi Marmara, part of the first Freedom Flotilla, by the IDF commando force, Shayetet 13, offers an important precedent. The Turkish government sought justice for this massacre in which Israeli soldiers killed 10 Turks, including one Turkish-American. Since Turkey broke off diplomatic relations over the incident, resumption of ties have also become part of the negotiations to resolve the dispute. Last February, the Times of Israel reported that part of the agreement under discussion involves Israel paying $20-million to the families of the victims.
Press reports this week speak of an imminent deal in which Israel and Turkey would resolve their differences, resume diplomatic relations and Israel would end the siege against Gaza. It’s not known what the final outcome will be regarding damages, but certainly Israel will be forced to acknowledge responsibility for the attack and pay compensation to the victims.
This offers an interesting model for pursuing future litigation to hold Israel financially responsible for acts of terror perpetrated by its citizens and its military against Palestinian civilians and citizens of other nations. Over the years, Israeli forces have severely injured or killed nationals of a number of countries in Palestine and elsewhere.
Shurat HaDin: ‘Bankrupting terror one case at a time’
One of the primary practitioners of “lawfare” among pro-Israel NGOs is an Israeli-American legal non-profit called Shurat HaDin (SHD, also known as the “Israel Law Center”). According to The New York Times, the group, founded by non-attorney Nitzana Darshan-Leitner, targets Arab financial institutions and even the assets of Arab and Muslim states, claiming they fund and/or support “Arab terrorism.” They use two provisions of U.S. law, the Alien Tort Statute and the Torture Victims Protection Act, in order to pursue their objectives.
In a WikiLeaks cable filed by a U.S. diplomat serving in the embassy in Tel Aviv, the group’s founder conceded that she founded SHD in close collaboration with Israeli intelligence, specifically the Mossad:
“Leitner said that in many of her cases she receives evidence from [Goverment of Israel (GOI)] officials, and added that in its early years ILC took direction from the GOI on which cases to pursue. ‘The National Security Council (NSC) legal office saw the use of civil courts as a way to do things that they are not authorized to do,’ claimed Leitner. Among her contacts, Leitner listed Udi Levy at the NSC and Uzi Beshaya at the Mossad, both key Embassy contacts on anti-terrorist finance cooperation.”
Though Darshan-Leitner does not mention receiving government funding to enable her to pursue her initial targets, this appears a possibility as well. The founder of the group declined to reveal the sources of the group’s funding to The New York Times in 2014, citing the vague grounds of “security.”
Given that Israeli intelligence agents routinely testify in such cases and U.S. judges have even permitted such testimony in private, in violation of the respondent’s right to confront witnesses against it, SHD continues its close relationship with the security services. It isn’t an exaggeration to say that NGOs like SHD are handmaidens of the Israeli state. They pursue objectives that advance the interests of the state in areas in which the state decides it should not directly venture.
Though the numbers are unverifiable, Darshan-Leitner claimed in media interviews that SHD has recovered a billion dollars in assets on behalf of American terror victims and their survivors who were killed or injured in Palestinian terror attacks. SHD’s motto is “bankrupting terrorism, one case at a time.” She works with a network of 30 attorneys who file and pursue these cases in cooperation with her organization.
Last Friday, according to Al-Jazeera, Arab Bank, the largest bank in the Middle East, agreed to an undisclosed settlement on behalf of 500-class action participants in a lawsuit that accused the institution of facilitating Palestinian terrorism. Provisions of the agreement were not disclosed, but given that the plaintiff’s attorney trumpeted it publicly, it’s safe to say Arab Bank will be parting with a significant amount.
The suit appears little more than a vehicle for the Israeli government and its interest in promoting an image of the Arab and Muslim world as a nest of terrorists. Its tactics exploit the law on behalf of national interests, while cloaked in the mantle of aiding victims of terror. But if the FBI and Justice Department could use the tax code to take down Al Capone, what’s wrong with doing something similar to address Israeli terrorism?
A model for holding Israel accountable for terror
Given the success of Darshan-Leitner’s project, one can pay her no higher compliment than turning the tables. Israeli terrorism, perpetrated by individuals, terror networks like the recently exposed group called “The Revolt,” and the state itself, have caused incalculably more harm to Arabs than Arabs have caused to Israelis.
The Israeli human rights group B’Tselem found that, from 2000-2008, Israel killed four times more Palestinians than Palestinians killed Israelis. That ratio has widened since then. Though many of these deaths happened during armed conflict, a significant number were acts of terror, like an incident earlier this month in which Jewish extremists burned alive an 18 month-old Palestinian baby and his father in a West Bank arson attack that remains unsolved.
Israel invariably refuses to hold such terrorists accountable for their actions (with few exceptions, and only in cases involving notoriety and international exposure like the brutal kidnap-murder of Mohammed Abu Khdeir, burned to death by radical Israeli Jews). When prosecutions do occur, Israel often pardons or commutes their sentences..
Holding Israeli terrorism legally accountable offers an opportunity to use the same U.S. laws to pursue similar targets among Israeli financial and state institutions. The goal would not be to bankrupt Israel or its banks, but rather to force Israeli corporate and government interests to understand that there is a steep price to pay.
There are hundreds of Israeli settlers who’ve killed and maimed thousands of Palestinian civilians. A 2011 report from the United Nations Office for Coordination of Humanitarian Affairs documented 121 incidents in which settlers caused Palestinian casualties in that year alone. These terrorists use guns and other weapons provided to them either by their settlements, the Israeli army, or other civilian authorities. Settlements and their security (likely including weapons used in some attacks on Palestinians) are directly funded by the Israeli government.
US nonprofits may aid Israeli terror
U.S.-based pro-settler non-profits also support acts of intimidation, land theft and violence against Palestinians. During his free-wheeling days as a Washington DC lobbyist, Jack Abramoff’s laundered $140,000 from the Chippewa Tribe through his Capitol Athletic Fund to the Beitar Illit settlement, according to a 2005 story from The Texas Observer. The money purchased “sniper scopes, camouflage suits, night-vision binoculars, a thermal imager and shooting mats” for a “sniper school” run by a former-IDF officer.
The Orthodox Jewish settler who ran the school “talked of a fifth column of Jewish warriors that will someday issue its own ‘call to arms.’ He also regaled Abramoff with accounts of sniper positions his group set up to cover IDF soldiers as they worked, “neutralizing’ terrorists, and watching ‘the dirty little rats’ on the Palestinian side of the fence,” wrote Louis Dubose in The Texas Observer.
In this case and others involving different U.S. charities supporting similar projects, settlers benefit from tax-deductible donations and other forms of official support in their acts of intimidation, threats and even terror against Palestinians.
For those few who are convicted of their crimes and imprisoned, there are Israeli NGOs like Lehava and Honenu which advocate for terror attacks and/or support the perpetrators and their families when they are behind bars. The Nana article linked above notes Honenu gave $60,000 directly to convicted Israeli Jewish terrorists and another $10,000 to their families. These NGOs receive government funding to support their general mission and their work with the families of terrorists. The Israeli state also implicitly endorses and subsidizes the mission through tax deductions on donations.
One of the important precedents SHD established is charging Palestinian organizations with culpability for terror through their funding of payments to the families of shahids who carried out terror attacks. SHD targets Arab banks which offer financial services to individual terrorists and national bodies which provide them with financial support. Such behavior is mirrored precisely on the Israeli side. What’s good for the goose should be good for the gander.
Further, Israel has sent its agents around the world to murder (and in some cases kidnap) individuals associated with Palestinian militant groups. Though Israel claimed that some of them are guilty of planning and carrying out terror attacks, many have either had no connection to terrorism or only very peripheral involvement. The Mossad assassinated Mahmoud al-Mabouh in Dubai. His crime was that he was a weapons procurement officer who arranged for the shipment of Iranian weapons to Hamas.
Since 2007, the Mossad has also assassinated five Iranian nuclear scientists. Though Israel has never accepted responsibility directly for these acts of state terror, its leaders expressed approval of them and even said that whoever did them should be applauded. Numerous foreign intelligence agencies and journalists confirmed the likelihood of Israeli responsibility.
NGOs and lawyers should force the Israeli government to prove or disprove this claim in a U.S. court. If the Israelis refuse to do so or attempt and fail to do so, they should be held to the same standards SHD is demanding of Arab banks and states in U.S. courts.
Arab Victims Face Far Higher Hurdles in U.S. Courts Than Israeli Victims
Though the theory behind this proposal is sound, executing it will be a different matter. Gadeir Abbas, a former staff lawyer for the Council for American-Islamic Relations (CAIR), told MintPress News that there are significant hurdles confronting those seeking to hold Israel accountable for acts of terror.
First, he noted that Israel is a state, which therefore enjoys sovereign immunity from various types of tort cases. Since Palestine statehood isn’t recognized by the U.S., its political organs, like the Palestinian Authority, have no such protection.
Abbas raised the example of Rachel Corrie. She was a young American volunteering on behalf of the International Solidarity Movement to defend Palestinian homes in Gaza that were being demolished by the IDF. An armored bulldozer manufactured by the U.S. Caterpillar Company and driven by an IDF soldier ran her over and killed her.
“When you have the U.S. government actually paying for the Caterpillar bulldozer which killed Rachel Corrie, it poses an almost insurmountable obstacle to suing Israel in a U.S. court,” Abbas said. “Add to that a built-in prejudice against Arab or Muslim victims who are often seen in the U.S. media as perpetrators, rather than victims of terror. Alternatively, American and Israeli Jews have not, until recently, been seen as perpetrators of terror. So it becomes easier for judges and juries to rule in their favor as victims.”
In the resulting lawsuit filed by her parents, a U.S. court ruled that since the tractor had been purchased under a U.S. government program (and paid for by the government itself), this indicated our country had approved the sale and use to which the IDF put the vehicle. It therefore dismissed the federal suit as a violation of the foreign policy prerogatives of the executive branch.
When the Corries followed suit by filing in an Israeli court, it heard the case but refused to find any culpability on the part of the IDF for Corrie’s killing. This, Abbas noted, is part of the high barriers faced by those seeking to hold Israel responsible for acts of terror and homicide against U.S. citizens.
The former CAIR attorney did indicate that lawsuits against individual Israeli officials rather than the government itself might be more successful. An even more promising strategy would be to identify non-state actors such as settlers or NGOs who might support their crimes. But it would be critical to be able to prove that any party sued, whether an NGO or a bank, knew in advance that the activities it supported were illegal (which could include violations of international law).
Despite these caveats, Abbas considers this a promising avenue worth pursuing, especially if victims and survivors come forward wishing to do so.
Another lawyer with considerable experience in the field of corporate litigation told me that no major American law firms would touch such a case. First, it would poison relations with many Jewish clients or even corporate clients with a large Jewish customer base. Second, no matter how vigorous the defense mounted by the Palestinian Authority, the Arab Bank or the government of Iran, Israeli banks and government bodies would mount an even more ferocious defense, hiring the most prominent, aggressive legal team to represent them. Any legal nonprofit taking up this project would face extensive criticism from the Israel lobby.
Despite these complications, Israeli targets present a deep-pocketed opportunity for a willing lawyer. The Israeli government registry for nonprofits notes Darshan-Leitner’s last recorded salary in 2012 was $110,000, quite a tidy sum in the Israeli nonprofit world. Her cottage industry has flourished and her associated attorneys have earned major fees for their work.
To avoid the stain of personal benefit, those working on this project on behalf of Arab victims should eschew profit to the greatest extent possible. Expenses and reasonable fees should be covered. Any assets seized or settlement funds should be distributed to victims and NGOs working on their behalf.
NGOs and law firms must hold individual Israelis, financial institutions and the state itself accountable for anti-Muslim terror. The major Israeli banks have American subsidiaries, which make them even more vulnerable.