UPDATE: In Silber v. Airbnb, the Center for Constitutional Rights has, on April 11, 2019, filed a motion to proceed with claims against Israeli settlers despite Airbnb’s decision to settle the lawsuit and reverse its earlier decision to de-list illegal settlement rental properties from its website, because dismissing the case would prejudice the Palestinian intervenors’ rights.
In the groundbreaking case Tamimi v. Adelson, the D.C. Circuit Court of Appeals revived a lawsuit brought by Palestinians and Palestinian-Americans against high net worth individuals, corporations, and tax-exempt entities. The appellate court held that the lower court can in fact rule on Palestinian claims of war crimes, crimes against humanity, genocide, and conspiracy to expel all non-Jews from the occupied territories, marking the first time that Palestinian human rights claims proceed in a U.S. court. Despite it being a precedent-setting case in which courts did not defer to the political branches, the opinion still presents Palestinian plaintiffs with an uphill battle of proving genocide – the focus of the judicial opinion. It is important to examine how Tamimi may impact other groundbreaking Palestinian human rights cases in the future. In the long term, advocates may also want to focus on if and how courts respond to the gradual shift in public opinion on Palestine and Israel.
LOWER COURT RULING IN TAMIMI V. ADELSON
The plaintiffs in Tamimi v. Adelson, Palestinians, Palestinian-Americans, and village councils, sued forty-nine defendants including individuals and donors (such as Sheldon Adelson), pro-settlement tax-exempt entities, multinational corporations, banks, and the United States Government. Plaintiffs claimed that the defendants: (1) engaged in a civil conspiracy to expel all non-Jews from East Jerusalem, the West Bank, and the Gaza Strip; (2) committed war crimes, crimes against humanity, and genocide in violation of the law of nations under the Alien Tort Statute (ATS) and the Torture Victim Protection Act (TVPA); (3) aided and abetted the commission of war crimes; and (4) engaged in a 30-year pattern of aggravated and ongoing trespass.
The lower court reached two conclusions: first, the court held that it lacked jurisdiction to hear the plaintiffs’ claims against the U.S. because Congress has not waived sovereign immunity for such claims. Second, the court held that it lacked subject matter jurisdiction with regard to the claims against the remaining defendants because they involve political questions, which are non- justiciable. In practice, invoking this political question doctrine ensures that the judiciary not adjudicate a case that is better suited for another branch of government. In Baker v. Carr, the Supreme Court articulated six factors when determining whether an issue presents a political question that should be reserved for the political branches. 369 U.S. 186, 217 (1962).
The lower court in Tamimi explained that resolving the plaintiffs’ claims for trespass, genocide, and other war crimes would require the court to determine sovereignty over land, the rights of private landowners, the legality of settlements, and whether actions by Israeli soldiers and settlers constitute genocide and ethnic cleansing. After determining that these issues implicate several Baker factors, the court held that the claims against the U.S. and all defendants are non-justiciable political questions, bringing the lawsuit to a standstill.
In its reasoning, the court explained that its lacks “judicially discoverable or manageable standards” for the case because characterizing “the ongoing armed conflict in the West Bank as either ‘genocide’ or self-defense” is a policy determination reserved for the political branches. However, this explanation ignores Baker’s explanation that, “the doctrine of which we treat is one of ‘political questions,’ not one of ‘political cases.’”
At this point, the appellate court changes the course of the case.
APPELLATE COURT RULING IN TAMIMI V. ADELSON
On appeal, Circuit Judge Karen LeCraft Henderson reviewed the plaintiffs’ claims and reduced the several political questions identified by the district court into two potential political questions: First, who had sovereignty over the “disputed territories”; and second, whether Israeli settlers are committing genocide. In applying the Baker factors, the court held that the first question of sovereignty “plainly implicates foreign policy” and should be left to the political branches of government.
As for the second question of whether Israeli settlers are committing genocide, the court held that it presented a “purely legal issue” because there are judicially manageable standards to determine the question. Therefore, the lower court can, in fact, rule on the question of genocide.
In reaching this conclusion, the court explained that the Alien Tort Statute (ATS), under which the plaintiffs brought their claim, incorporates the law of nations, including a legal definition of genocide. The court goes on to explain that, unlike the sovereignty question, deciding whether Israeli settlers are committing genocide would not create an inter-branch conflict or directly contradict a foreign policy choice.
In assessing the claims, the appellate court held that the political question of sovereignty is extractible. This view means that the court can adjudicate the case on all counts without addressing who has sovereignty over the land. Accordingly, the judge held that the lower court could rule on the following: whether defendants engaged in a civil conspiracy to expel all non-Jews from the occupied territories; committed war crimes, crimes against humanity, and genocide in violation of the law of nations; and aided and abetted the commission of war crimes. The court might only need to make a sovereignty determination for the property-based trespass claims, though this is not guaranteed.
LEGAL CONTEXT: WHY IS TAMIMI V. ADELSON SIGNIFICANT
The Tamimi opinion is consequential because the judge allowed the case to proceed and is analyzing the case based using a close reading of the law, rather than the often politically-charged context. That the case was not dismissed finally opens up space for courts to rule on the merits of Palestinian human rights claims instead of continuing to dismiss such claims on non-justiciable grounds. For at least the past 28 years, courts have exhibited a blatant double standard in determining the justiciability of cases involving Palestine and Israel.
In her article, Litigating the Arab-Israeli Conflict: The Politicization of U.S. Foreign Courtrooms, Noura Erakat demonstrates this double standard by examining the treatment of two seminal cases filed by Palestinians against Israelis in 2005 in the Southern District of New York and the DC Circuit Court. In both cases, the court invoked the political question doctrine and the Foreign Sovereign Immunities Act to avert hearing the cases on their merits.
In one of the cases, Matar v. Dichter, Palestinians sued the director of the Israeli General Security Services in U.S. federal court alleging war crimes, extrajudicial killing, and other gross human rights violations. Dichter approved of a targeted killing that resulted in a one-ton bomb killing fourteen civilians in violation of customary international law. Without considering the legal questions before it, the court dismissed the claims under the Foreign Sovereign Immunities Act and after finding that a political question existed because, in the words of the court, “the defendant is a high ranking official of Israel, a United States ally.” Erakat shows that in cases arising from the same political context but filed against Palestinians, the court did not invoke these doctrines, allowing the claims to go forward.
These outcomes clearly illustrate that in cases involving Palestinian plaintiffs, courts have avoided relevant legal questions that may trigger Israeli culpability. The Tamimi appellate decision sharply stands out from these previous cases.
Though Silber v. Airbnb has been settled, it can still shed more light on this shift. Last month the Center for Constitutional Rights (CCR) intervened in a lawsuit on behalf of Palestinian landowners and West Bank residents in a first-ever challenge of Israel’s settlement enterprise in U.S. courts.
In Silber v. Airbnb, a group of eleven settlers who listed properties in Israeli settlements on Airbnb sued the rental company in federal court in Delaware under the Fair Housing Act, claiming that Airbnb’s decision to delist properties in illegal settlements discriminates against Israelis and Jewish people who wish to rent or list properties.
The intervenors, a Palestinian-American and two Palestinian villages on whose land the settlers have listed Airbnb properties, counterclaimed that the settlers’ actions constitute war crimes, crimes against humanity, and discrimination based on religion and national origin. Palestinian intervenors also claim trespass and unjust enrichment against the settlers who are on their lands. Another intervenor, a Palestinian-American and West Bank resident, filed counterclaims against the settlers for discrimination. Because the illegal settlements exclude Palestinians, all intervenors are prohibited from accessing these properties.
In a statement released on April 9, 2019, CCR expressed dismay and alarm at Airbnb’s decision to settle the case with Israeli settlers instead of abiding by human rights obligations.
Although the D.C. Circuit opinion in Tamimi does not bind the District Court of Delaware’s ruling in Silber, it remains interesting to examine whether, in light of Tamimi, the Delaware court would have allowed Palestinian ATS war crimes and crimes against humanity claims to proceed without dismissing them as non-justiciable.
PROBLEMS WITH TAMIMI V. ADELSON
Despite the shift evident in Tamimi, advocates for Palestinian rights should temper their expectations for several reasons.
First, the court’s analysis is a frustrating illustration of why the question of Palestine will never be properly adjudicated until the U.S. elevates the role of international law in its courts. Until this occurs courts, like in Tamimi,will dismiss sovereignty questions related to Palestine-Israel, despite the recent United Nations (UN) Security Council 2334, which states that Israel’s establishment of settlements in the occupied territories, including East Jerusalem, have no legal validity.
Second, proving genocide will be an uphill battle for the plaintiffs. The judge focused on the claim of genocide proceeding because of its judicially manageable standards, which will help determine whether Israeli settlers are committing genocide. Article 2 of the United Nations Convention on the Prevention and Punishment of the Crime of Genocide defines genocide as any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
Thus, to succeed on a genocide claim, plaintiffs must prove gravity and intent, often an arduous task.
Finally, the plaintiffs may have missed an opportunity when their attorney waived any theory of liability for the U.S. based on the Israeli military’s conduct. In its brief the Department of Justice (DOJ) argued that, because of the political and military support the U.S. government provides Israel, a finding that the Israeli army committed the alleged offenses would “implicitly condemn American foreign policy by suggesting that the [government’s] support of Israel is wrongful.” However, because Israeli settlers are protected by soldiers who are perpetuating the settlement enterprise and settler violence in Palestine, the plaintiffs may have still missed an opportunity to potentially have the court rule on this connection.
The Tamimi case comes at a particularly fraught moment in Palestinian-American relations. The Trump administration’s wholesale support for Israel, evident in several policy shifts that have a profoundly negative impact on Palestine and the prospects of freedom for Palestinians has driven Palestinians into a tight corner. These include the relocation of the U.S. embassy from Tel Aviv to Jerusalem, recognizing Jerusalem as the capital of Israel, defunding the United Nations Agency Relief and Works Agency for Palestinian Refugees, the closure of the PLO’s diplomatic mission to the U.S., and the administration’s continued conflation of resisting Israeli policies with anti-Semitism.
Given these policy shifts, it is unsurprising that the Tamimi case has raised eyebrows among advocates for Palestine rights and grassroots activists, especially as the international solidarity campaigns gain momentum amidst the worsening situation on the ground.
However, the journey for Palestinian rights in U.S. courts will likely be a long and difficult one. Nonetheless, even if the lower court’s ruling on remand does not lead to a favorable result for Palestinians, the era of Israeli exceptionalism in U.S. courts may be coming to an end, as we could be seeing a shift in the courts giving less deference to political branches in cases involving Palestinian plaintiffs. This precedent-setting case could reveal to a wider U.S. audience American governmental, institutional, and individual complicity in the dispossession, discrimination, and displacement of Palestinians.