D.C. Circuit’s bad law


As a general rule, domestic courts are terrible places to address such intractable problems as multi-party international political conflicts. And yet, they are exactly the forums varying groups on either side of the Israeli-Palestinian divide have turned to in the ever-widening phenomenon popularly known as lawfare. Thus, we saw Jewish Americans several years ago rally behind an American-Israeli boy born in Jerusalem who sued the U.S. State Department over its refusal to list his birth country as Israel.

Back then, the Zivotofsky case resulted in a clear pronouncement from the U.S. Supreme Court that courts have no business adjudicating thorny questions of foreign policy. But today we see Palestinians and Palestinian-Americans turning to the American judiciary to endorse the fanciful assertion that Israeli settlers, aided financially by casino magnate Sheldon Adelson and a group of co-conspirator billionaires and non-governmental organizations such as Friends of the Israel Defense Forces, engaged in genocide.

Last week, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit sent the case, Al-Tamimi v. Adelson, back down to U.S. District Judge Tanya Chutkan, who had ruled two years ago that the plaintiffs’ charges implicated such substantial questions of U.S. foreign policy as to make them non-justiciable. Although the appeals court properly acknowledged that the Palestinians’ attempt to get a judge to rule on the sovereignty of the West Bank was outside of the court’s subject matter jurisdiction, it concluded nonetheless that a court could determine — in a non-political manner — the genocide question.

We respectfully disagree.

The basis of the Palestinians’ genocide claim against Adelson and the other defendants is a claimed violation of the Alien Tort Statute. That law grants U.S. courts jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations.” They assert that the settlement enterprise is designed, and actually accomplishes, the ethnic cleansing of a national or religious group. “And it is well settled,” the appeals court wrote, “that genocide violates the law of nations.”

The Simon v. Hungary case upon which the court relied, however, dealt with an entire state seeking to eradicate an ethnic minority. That’s hardly the case here. Nonetheless, if Israeli settlers are engaging in genocide — which they’re not — it would be the most anodyne genocide in world history. In all of its anti-Israel fervor, Human Rights Watch in 2017 was only able to tally 62 Palestinian killings in the West Bank — out of a population of more than 2 million.

In order for a court to rule that genocide is the stock and trade of Israeli settlers, their funders and supporters, it would have to first determine that Palestinians in and around settlement areas are an ethnic and religious people distinct from the rest of the Palestinians in the West Bank. And that is a uniquely political question.
Fortunately, the case can still be dismissed on its merits

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