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Lamis J. Deek

US PLO court verdict is manifestly politicised

American Rachel Corrie was killed by an Israeli bulldozer. Her parents never saw justice [AFP]}

Date of publication: 6 March, 2015

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Legal comment: The recent case in which a US court ordered the PLO to pay $655 million is an example of politicised justice being used to further the unjust ends of the Israeli occupation.

Much like Netanyahu’s series of diplomatic blunders, neither the facts nor the verdict in the Sokolow vs PLO et al case are new. It differs only in degree and context. A US court ordered the Palestinian Liberation Organisation (PLO) to pay damages to victims of terrorist attacks committed in Jerusalem between 2002 and 2004.

The verdict – tripled to a whopping $655 million - entered against the Palestinian Authority and the PLO comes in the aftermath of Israel’s brutal war on Gaza last summer, just as the PA prepares its complaint against the Israeli government before the International Criminal Court.

The Sokolow complaint, filed in 2004 by survivors of Palestinian operations during the Palestinian intifada, claims the PLO and the PA are liable because they supported the operations or otherwise should have foreseen and prevented them.

Selective justice

The case is but another glaring example of Israeli exceptionalism in America. While Sokolow et al. celebrate, the parents of American citizens killed by Israeli forces - Rachel Corrie, Furkan Dogan, Nadeem Nuwara and Orwa Hammad, to name a few - are left out in the cold.

The Court said that terrorism - like pornography - has no clear definition

Rachel Corrie was killed by an Israeli soldier who drove a Caterpillar bulldozer over her. Orwa Hamad, aged 14 years, and Nadeem Nuwara, aged 16 years, were killed execution style by Israeli soldiers, who appeared to shoot them for sport. Nineteen-year old Furkan Dogan was beaten and shot as he filmed the deadly Israeli attack on a humanitarian aid convoy aboard the Mavi Marmara. But none of them will see justice as US courts have repeatedly dismissed cases against Israelis.

The courts’ disparate decisions reflect US policy: Israeli agents in Israeli uniforms systematically killing Americans - and Palestinians - is a matter of foreign policy immune to juridical inquisition. But acts of political desperation by Palestinians become the responsibility of the entire Palestinian people. The American legal system is complicit in feeding this self-fulfilling cycle. The courts invoke legal constructs to find Israelis immune or decline jurisdiction. In Sokolow, the Court went even further, issuing several decisions to recreate the Israeli narrative within the courtroom.

The doctrine of foreign sovereign immunity - which protects state officials from lawsuits - has also successfully shielded Israelis from lawsuits. When immunity is not guaranteed, the US government intervenes, claiming the case broaches foreign policy rendering it beyond the court’s purview as happened in Rachel Corrie’s case where a suit against Caterpillar was dismissed by a similar government intervention.

The only time known to this writer the Supreme Court found the PA immune as a sovereign entity was in passing under its proverbial breath in Mohamad v. PA, a case brought by survivors of a Palestinian-American man tortured to death by the PA.

Obvious bias

The courts have otherwise denied Palestinian statehood to overcome claims of sovereign immunity claiming the PA does not enjoy a critical state feature - control over its government and territory. Ironically, the same Courts did find the PA had enough control over the individuals in its constituency to find it - and thereby the Palestinian nation - liable.

Further facilitating the verdict is the statute underlying the plaintiffs’ claims, the Anti-Terrorism Act. The ATA allows civil action for violation of ‘terrorism’ laws. Federal anti-terrorism laws only require the defendant have aided a designated terrorist organization. Fortunately for the Plaintiffs, all major Palestinian political parties, except Fatah, are designated terrorist organixsations by the US. The New York State "terrorism" standards are similarly skewed, as best summarized in the case of NY vs Morales. Admitting it was unable to define the word "terrorism", the Court said that terrorism - like pornography - has no clear definition but “we know it when we see it.” The Court then cited seven examples, six of which included Muslim defendants. Thus were the parameters of Palestinian liability set.

The Court then, building from and replicating the imbalance of power between Israelis and Palestinians, sanctified the Plaintiff’s evidence and prohibited Palestinians from presenting evidence relevant to their defence. The Palestinians were not allowed to challenge the veracity of the Plaintiff’s evidence because the Court refused to allow inquiry into the conditions under which Palestinian confessions were secured by Israelis, the nature of military tribunals, military convictions and Israeli torture practices. They were also prevented from presenting evidence about the Israeli Occupation, Israeli attacks on the PA, Israeli destruction of PA infrastructure or general PA subservience to Israeli forces. Essentially, the defense was not allowed to present a defense.

If all of that were not enough, the jurors were then introduced to the case by being informed that their identities were kept anonymous. Anonymous jury applications, often granted in cases against Arabs or Muslims for the ostensible protection of the jurors, are psychological tactics intended to impart an atmosphere of fear which the jury then attributes to the defendants.

Thus, the Judge’s direction “to be neutral, to set aside their political beliefs,” issued to a scared jury that heard nothing about Palestinians other than their violence and “networks”, removed from the context of Israeli violence and occupation, did little more than give cover to an overwhelmingly biased proceeding.

America's long vested interest in Israeli impunity may soon become a liability.

But none of this is new. The US courts have long served as tools of Palestinian repression. As early as 1972, the courts denied challenges to NSA sharing with Israeli officials illegally gathered intelligence on pro-Palestinian US-citizens. In 1979 the US reversed its policy of denying extradition in political cases so as to allow the extradition of a Palestinian in Zein Abu Eain v Wilkes. Shortly after the 1996 expansion of the Antiterrorism and Effective Death Penalty Act, the first and longest-held prisoners on secret evidence were Palestinians until 9/11. Volumes could be written about the post-9/11 targeting of Palestinian communities.

Impunity for Israel

Just as Israeli violence seeks to prevent Palestinian return and liberation, pro-Israeli repression and impunity in the US seeks to hinder the mushrooming Palestinian solidarity movement so as to manufacture consent for continued Israeli support. Despite the vast resources behind this project, including the Sokolow verdict, it is part of a losing battle. In fact, America's long vested interest in Israeli impunity may soon become a liability. As Palestinians shift away from US-centered solutions and seek international alternatives for their struggle, the American government may become mired in so-called lawfare as well, which may well be an impetus behind US threats to punish the PA for its statehood and ICC bids.

Domestically and globally, the Palestinian solidarity movement is devising its own lawfare strategies while activists render obsolete the ancient “eternal-victim” Israeli narrative and with it the intended impact of the Sokolow action. A new generation of Americans is no longer cowed by Israeli lawfare and pro-Israeli repression which, though still formidable, is not the threat it once was. Even in the courts, attorneys are seeing more young potential jurors unabashedly attack Israeli policies before judges and prosecutors. Thus, the Sokolow verdict is not the victory US and Israeli pundits and publishers would have us believe.

As one of the latest Palestinian victims of pro-Israeli repression, Rasmeah Odeh, said after being convicted in a politically charged case stemming from her own testimony under torture, “Palestinians know if we do not find justice here we will find it elsewhere.” That elsewhere could soon be at the ICC, in any of the countless states that recognize Palestinian statehood.

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