"The ATS by incorporating the law of nations ...provides a judicially manageable standard to determine whether Israeli [Jewish] settlers are committing genocide.”
Defendants include Americans Sheldon Adelson, Lawrence Ellison, Haim Saban, Irving Moskowitz, John Hagee and Israeli Lev Leviev. The appeals court decision is here
The suit was first brought in a US Federal district court (the “trial court”) alleging that the defendants “funneled millions of dollars through the defendant tax-exempt entities and banks to Israeli villages called “settlements.” Armed with this financial assistance, the settlement leaders hired full-time security coordinators who trained a militia of Israeli settlers to kill Palestinians and confiscate their property. The defendant construction and support firms destroyed property belonging to the Palestinians and built settlements in its place” and deputy national security advisor of the United States publicly endorsed the settlements.
The plaintiffs pressed four claims: “(1) civil conspiracy, (2) genocide and other war crimes, (3) aiding and abetting genocide and other war crimes and (4) trespass.”
The trial court dismissed the suit, relying on the doctrine that it is inappropriate for a court to determine matters that are inherently political and more properly decided by Congress and/or the President. The trial court found that the case required it to “adjudicate and resolve the lawfulness of the development of Israeli settlements…” Such a ruling, the trial court said, was “simply inappropriate for this court to resolve. Instead, these issues must be decided by the political branches.”
According to Haaretz, Israeli legal organization, Shurat Hadin, that claims to represent victims of terror, praised the trial court decision, and incorrectly stated that “cases such as this are brought solely to furnish a foundation of legal legitimacy for the BDS movement, and undermine the legitimacy of Israel.” And then, perhaps for vengeance, added the hope that “the judge will see clear to impose the large costs of these proceedings on the plaintiffs.” Imposition of costs is routine in some countries but unusual in the US.
On February 19, 2019 a panel of the Washington, DC Federal Circuit Court of Appeals (the “appeals court”) unanimously reversed the trial court and ruled that a trial court could find the defendants liable without deciding who owns the land. Although the appeals court did not decide liability, it sent the case back to the trial court for trial.
The appeals court agreed with the trial court that the issue of sovereignty over the land is political, but found that the case could be dismissed only if none of its claims could be resolved without deciding the political issue. In other words, they ruled that the Plaintiff’s claims can be separated from the issue of sovereignty over the land.
The lawsuit was brought primarily under a federal law entitled, the Alien Tort Statute (“ATS”). The ATS provides, in part, that federal courts can hear a civil action by a nonresident non- US citizen for a wrong “that is committed in violation of the law of nations.” The appeals court noted that “it is well settled that genocide violates the law of nations.” The court found that there is a definition of genocide within international law, that is: “[k]illing members of [a national, ethnic, racial or religious group] with intent to destroy [the group], in whole or in part.”
“Thus, the ATS—by incorporating the law of nations ...—provides a judicially manageable standard to determine whether Israeli settlers are committing genocide.” In so stating, the appeals court is telling the trial court that this is the proper standard for its decision, and that this is not a “political” issue. (by political, they mean in the narrow sense of sovereignty involved in this case).
This decision can be appealed to a larger panel of the appeals court or to the Supreme Court, absent a successful appeal by the defendants, the Palestinians will be able to proceed. The district court has not yet reheard the case.
It seems to me like a big deal that three federal appeals judges ruled unanimously that the plaintiffs may proceed to argue that Israeli settlers and their benefactors have committed or aided in genocide.
However, the mainstream media has declined to cover this crucial case. A search of The New York Times and the Wall Street Journal yielded no results. The case was covered by a few smaller outlets and by Bloomberg, Reuters (which included a summary that was at least partially correct) and by the Jerusalem Post (that complained the Palestinian plaintiffs failed to present the Israeli narrative). The Electronic Intifada covered the initial filing but does not seem to have followed the case. And Haaretz and the Times of Israel wrote about the dismissal by the district court but not that it was overturned on appeal. This strikes me as scant coverage of an important case.
Finally, a part of the United States government is treating Palestinians as people who have at least potential rights even against billionaires, and most of our media has not bothered to tell us the story.
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