Wednesday's Weird But True Legal Cases - Vol XXXVIII

Tonight's weird (but true) case analysis looks at Sokolow v. The Palestinian Liberation Organization, 2008 WL 4449480 (S.D.N.Y. Sept. 30, 2008), a case which examined whether an American court could entertain claims against the current Palestinian governing body.

In Sokolow, various US citizens as well as the estates and family members of US citizens who were injured or killed in terrorist attacks in Israel brought suit against the PLO and the Palestinian Interim Self-Government Authority (PA). The lawsuit involved claims arising under the Anti-Terrorism Act of 1991 which provides civil remedies to US citizens and their estates in relation to injuries sustained because of acts of international terrorism.

The Defendants moved to dismiss the lawsuit based on their contention that the court lacked subject matter jurisdiction over the case, arguing that:(1) the ATA could not provide jurisdiction because the attacks did not target US interests; (2) that any lawsuit would be more properly brought in Israel and (3) that political questions should not be resolved in civil lawsuits.

The Distirct Court Judge denied the motion and ruled that the Court properly had subject matter jurisdiction over the case. In so doing the court noted:

The ATA bestows subject matter jurisdiction upon the federal courts regardless of whether or not the victims were specifically targeted because of their United States' citizenship. Additionally, a district court should dismiss an action on the grounds of inconvenience or inappropriateness of the forum where the alternative available forum is shown to be significantly more convenient and appropriate. Defendants have failed to make any showing that an Israeli court is a more appropriate forum in which to litigate this action.

Nor does this case, as defendants contend, involve non-justiciable issues precluding federal jurisdiction under the political question doctrine. Defendants warn that, in addition to potentially poisoning any prospect for peace, judicial determinations, made in the course of this litigation, will “interfere with the goals and efforts of the Executive branch to achieve Palestinian statehood through the promotion of President Abbas and the government vehicles of the [PA] and PLO....” (Defs.' Supplemental Opp'n Mem. at 35).

As one court previously observed, “[t]he PA and PLO repeatedly fail to realize that the non-justiciability doctrine is one of political questions and not political cases.” An action does not lie beyond judicial cognizance solely because it raises questions touching upon foreign relations. In responding to similar political and foreign policy concerns previously raised by the PLO, the Second Circuit Court of Appeals, in Klinghoffer v. S.N.C. Achille Lauro, 937 F.2d 44 (2d Cir.1991), observed that “[t]he fact that the issues before [the court] arise in a politically charged context does not convert what is essentially an ordinary tort suit into a non-justiciable political question.”

Interestingly, the defendant also argued that the doctrine of sovereign immunity which generally protects foreign governments from suit, would also be a reason that the court should dismiss the suit. This argument was also rejected, as the court noted:

While the PLO and PA argue their sovereignty, they do not claim individual statehood status. Their assertion of immunity derives from the claimed sovereignty of the State of Palestine. Defendants contend that they are essential agencies of Palestine, performing core governmental functions and, as such, are entitled to immunity.

Palestine, whose statehood is not recognized by the United States, does not meet the definition of a “state,” under United States and international law, and hence does not constitute a foreign state for FSIA purposes. Since Palestine is not recognized, under United States law, as a “foreign state,” the defendants cannot derivatively secure sovereign immunity as agencies and/or instrumentalities of Palestine. Similarly unavailing is defendants' alternative argument that, should Palestinian Statehood be found not to exist, the PA is nevertheless entitled to immunity as a political subdivision of Israel.

One final argument advanced by the defendants was that subject matter jurisdiction was lacking because the action is premised on acts of war, which is barred under the ATA, and further is based on conduct which does not meet the statutory definition of “international terrorism.” In so doing, the Defendants contended that "the persistence of violence, between Israelis and Palestinians in the West Bank and Gaza Strip, constitute 'armed conflict,' under the ATA. They, therefore, conclude that plaintiffs are precluded from maintaining this action because their alleged injuries were sustained in the midst of an armed conflict.

This argument was also rejected, as the Court observed that

Six of the seven subject attacks occurred in Jerusalem. There has been no showing that the situs of the attacks were in any combat or militarized zone, or were otherwise targeted at military or governmental personnel or interests. Rather, plaintiffs allege that the attacks were intentionally targeted at the civilian population. They were purportedly carried out at locations where non-combatants citizens would be known to congregate, such as in the cafeteria on the Hebrew University campus and on a commercial passenger bus. Additionally, the use of bombs, under such circumstances, is indicative of an intent to cause far-reaching devastation upon the masses. The “benefit” of such weaponry is its merciless capability of indiscriminately killing and maiming untold numbers in heavily populated civilian areas. Such claimed violent attacks upon non-combatant civilians, who were allegedly simply going about their everyday lives, do not constitute acts of war for purposes of the ATA. Furthermore, such alleged acts of violence do not fall outside the statutory definition of “international terrorism” as a matter of law.

The lawsuit was permitted to continue beyond the motion to dismiss stage. Time will tell as to whether the Plaintiffs will recover any money from the defendants.

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