The Arab-Israeli Conflict and Civil Litigation against Terrorism

By Schupack, Adam N. | Duke Law Journal, October 2010 | Go to article overview

The Arab-Israeli Conflict and Civil Litigation against Terrorism


Schupack, Adam N., Duke Law Journal


ABSTRACT

The Arab-Israeli conflict has been a testing ground for the involvement of U.S. courts in foreign conflicts and for the concept of civil litigation against terrorists. Plaintiffs on both sides of the dispute have sought to recover damages in U.S. courts, embroiling the courts in one of the world's most contentious political disputes. Plaintiffs bringing claims against the Palestine Liberation Organization, the Palestinian Authority, material supporters of terrorism, and the Islamic Republic of Iran have been aided by congressional statutes passed precisely to enhance their ability to bring such lawsuits, whereas plaintiffs bringing suit against Israel or Israeli leaders have not had the benefit of such laws. Although the courts have sought to give effect to the congressional authorization embodied in these statutes, they have faced the resistance--at times half-hearted--of the executive branch, which regards such legislative and judicial involvement as an intrusion on its foreign policy prerogatives. Though these lawsuits have been subject to criticism and have not fully achieved the goals attributed to them, U.S. courts have largely acted within the authority given them by Congress and the executive branch in hearing the suits, and there is at least some evidence that such lawsuits constitute an effective tool in the fight against terrorism.

INTRODUCTION

Alisa Flatow, a twenty-year-old Brandeis University student studying in Israel, was killed on April 9, 1995, when Palestinian Islamic Jihad terrorists blew up the bus in which she was traveling in the Gaza Strip. (1) On April 18, 1996, Saadallah Ali Belhas's wife Zeineb and nine of their children were killed when an errant Israeli shell hit the U.N. compound at Qana, Lebanon, where they were sheltering from Israel's Operation Grapes of Wrath against Hezbollah fighters. (2) What separates these victims and their families from thousands of others who have died in the course of the Arab-Israeli conflict is that their families sought justice through private civil litigation in the United States. Using statutes intended to combat terrorism and human rights violations, these plaintiffs and others like them have forced U.S. courts to confront the contentious Arab-Israeli conflict. (3)

In light of that dispute's central role in U.S. foreign policy and international politics, this Note takes the conflict as its starting point. In doing so, it offers a new approach to analyzing how U.S. courts have dealt with civil suits related to terrorism in the context of a conflict laden with foreign policy concerns. Prior scholarship has tended to focus on particular statutes, (4) particular cases, (5) or the general concept of civil litigation against terrorism. (6) In contrast, this Note begins with the conflict and proceeds to examine related civil cases brought in U.S. courts.

The purpose of this approach is twofold. First, the Note categorizes different types of U.S. civil cases that are connected with the Arab-Israeli conflict. After discussing the factual background of one or more important cases in each category, this Note examines how courts have handled that category of cases. Second, the Note analyzes how courts have resolved cases in these different categories and the impact of those decisions on the broader concept of civil litigation against terrorism.

Part I examines civil suits against the Palestine Liberation Organization (PLO) and the Palestinian Authority (PA), the first kind of litigation brought in U.S. courts related to the Arab-Israeli conflict. (7) Part II reviews civil actions against nonstate material supporters of terrorism, focusing on attempts by David Boim's parents to hold U.S.-based funders of the Palestinian terrorist group Hamas liable for their son's murder. Part III discusses suits against Iran under the state sponsor of terrorism exception to the Foreign Sovereign Immunities Act (FSIA), (8) including Stephen Flatow's attempt to hold the Iranian government liable for funding the Palestinian terrorists who murdered his daughter.

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