The actions of Israel almost certainly war crimes, and Palestinian Foreign Minister Riad al-Malki just met with officials from the International Criminal Court to see if they can do something about. It’s unlikely, though; neither Israel nor Palestine fall under its jurisdiction. The body with ability to grant jurisdiction–the UN Security Council–gives the United States veto power over any decisions.
Is there anywhere else to bring a lawsuit? There may well be, and in the United States, of all places. Under a law that is as old as the United States itself. Attempts to sue the IDF were dismissed in 2005 and 2008. Under current circumstances it may be very difficult but worth another go.
The Alien Tort Statute (ATS), passed in 1789, creates a way for non-U.S. citizens to sue for damages in U.S. courts for violations of the “law of nations.” At the time, the law created a forum for victims of piracy on the high seas to sue those pirates they tracked down in the U.S. It also created remedies for diplomatic incidents, like if one diplomat punched another, as actually happened to a French diplomat in the infamous “Marbois-Longchamps affair.”
Since the 1980s, human rights violations are fair game under the ATS. The Center for Constitutional Rights brought the landmark Filartiga v. Pena-Irala case (1980); two Paraguayans sued a former Paraguayan police chief who tortured and murdered their relative. The Second Circuit Court of Appeals held that the ATS applied because all the criteria were met: the Paraguayans were aliens, they were suing the police chief (then located in the United States) for civil damages, and the conduct alleged (torture) was uniformly proscribed by international law. In essence, Filartiga opened up a new field of litigation for violations of the most fundamental human rights norms. The U.S. Supreme Court held in Sosa v. Alvarez-Machain (2004) that courts today have jurisdiction to hear claims for violations of international law that are as specific and universal as the torts recognized at common law. Last year, the Supreme Court limited the jurisdiction to hear ATS cases–more on this later.
The question is–can the families of those killed in Gaza bring an ATS suit in U.S. federal court against Israeli soldiers? If they are aliens, then they may be able to sue for compensation in the United States.
There have been widespread international calls for justice: the UN Human Rights Council voted to investigate the IDF’s actions in Gaza (the United States was the only country to vote against, though seventeen countries abstained). UN High Commissioner for Human Rights Navi Pillay said that the IDF’s repeated attacks of civilians showed a “deliberate defiance of obligations” under international law, and that any actions by Hamas do “not absolve [Israel] from not itself observing its obligations.”
Deliberate and disproportionate attacks on civilians are violations of the law of war–so are unlawful deportations, displacements, and extensive destruction of homes and personal property, all of which Israel has committed not just in the last month but since the 1940s. The Rome Statute establishing the International Criminal Court lays out specific criteria. Although the United States has signed but not ratified the statute, most of the definitions contained in the Statute represent widely accepted customary international law.
There are further strong arguments for the commission of genocide and crimes against humanity by Israeli forces.
When considering an ATS lawsuit under these circumstances, there are some important hurdles:
1) Is the suit precluded by the Foreign Sovereign Immunities Act (FSIA)? Probably not, depending on the defendants. The FSIA immunizes foreign governments and their instruments from the jurisdiction of U.S. courts. However in Samantar v. Yousef (2010) the Supreme Court held that this doesn’t immunize foreign officials or individuals. This means that individual officials and soldiers are probably fair game, while the state of Israel and the whole IDF may be harder (if not impossible) to slip through the FSIA. For instance, the D.C. Circuit in 2008 dismissed a suit by the Center for Constitutional Rights, Belhas v. Ya’alon, against a former IDF commander responsible for shelling a UN compound in Lebanon, killing over 100 civilians and displacing more than 400,000. The rationale of the D.C. Circuit in calling Ya’alon an “instrumentality” of the state of Israel would probably not hold today. (shockingly, the Chief Judge said that the FSIA at the time would preclude suits against the Third Reich).
2) Is the suit precluded by the political question doctrine? A bigger issue, and there is a good chance. Under Baker v. Carr (1962) the political question doctrine bars suits when the courts would interfere with the foreign affairs policies of other government branches. This happened in Doe v. Israel (2005) where the doctrine stopped an ATS suit against Israel by Palestinians living in Israel and the West Bank. The political question doctrine is not clear cut, and it is important to keep in mind that the ATS necessarily involves political questions. Courts will admit statements of interest (SOIs) from the executive, but these aren’t controlling.
3) Is the suit precluded by the act of state doctrine? This is related to the political question issue. Courts do not want to validate or invalidate the actions of foreign governments. In determining this issue they consider several factors, most importantly whether the decision would affect U.S. foreign relations. However, torturing someone isn’t a legitimate exercise of state power. There are strong arguments that jus cogens violations aren’t acts of state. Those are the types of violations at issue here.
4) Is the suit precluded by the new “touch and concern” rule in Kiobel v. Royal Dutch Petroleum? Again, maybe. Last year the Supreme Court limited the jurisdictional reach of the ATS in extraterritorial cases, by requiring that the conduct “touch and concern” the United States. The Kiobel case concerned brutal executions of peaceful Ogoni protesters in Nigeria, which the defendants (Dutch Shell) and their amici spun as “extraterritoriality cubed” because the case involved foreign plaintiffs, foreign defendants and action abroad. It is still unclear what the “touch and concern” language means. But there is a possible problem here since a suit against Israeli soldiers would involve foreign plaintiffs and defendants and conduct abroad. There is however still an argument that the conduct touches and concerns the United States, given the military support the U.S. gives to Israel, and that Israel restocks weapons from U.S. armories.
It has been nearly a decade since Doe v. Israel was decided, and it was only a district court opinion that was highly deferential to Israel. It’s time to look at these issues afresh. There might still be several issues that could cause an ATS suit to fail, but the case is legally buoyant. Case law has evolved, and the political support for Israel’s inhumane acts is becoming less and less tenable.