For months, Israeli settlers have been rampaging through the West Bank terrorizing Palestinians. They have injured civilians, burned and destroyed their property, and even murdered them in cold blood. Although most of these victims have no direct connection to the United States, some do, which presents a potential if unexpected opportunity: to challenge the settlers’ violent project by turning the tables on terrorism torts.
Using 18 U.S.C. § 2333—a federal civil terrorism provision under the Antiterrorism Act of 1992—Palestinian American victims of these recent attacks could bring tort suits in U.S. courts against charities and other third parties—particularly those based in the United States—who support Israeli settlers. Indeed, U.S. charitable organizations have historically provided substantial funds to Israeli settlements and settler groups. According to a 2015 investigation by the Israeli newspaper, Haaretz, U.S. donors gave $200 million in tax-exempt funds to Israeli settler organizations between 2009 and 2013. Under a plausible reading of the law, those groups may now be liable for the harms suffered by Palestinian Americans in the West Bank.
There is, of course, a deep irony in pursuing this approach. Over the past two decades, Section 2333 has been used to undermine rather than further the Palestinian cause. It was, in fact, designed with that purpose in mind. Nevertheless, the current moment presents the chance for Palestinians to flip the script and vindicate their rights.
The Antiterrorism Act
Since the early 1990s, the United States has created a scheme of laws allowing private parties to sue individuals, organizations, and foreign countries for acts of terrorism in U.S. courts. Section 2333 was the first of these laws to go into effect. As various commentators have shown, its passage was largely fueled by a desire to target so-called terrorism by Palestinians generally and the Palestinian Liberation Organization more specifically.
After lying dormant for nearly a decade, Section 2333 began to serve its purpose shortly before 9/11, when litigants started using it to target so-called terrorist groups in Palestine and those purportedly supporting them. These efforts were bolstered, in part, by a public-private partnership between the Israeli government and Israeli legal advocacy organizations, like Shurat HaDin, who together devised a strategy for using U.S. anti-terrorism laws to pursue those allegedly assisting terrorist groups operating in Palestine.
At the outset, this strategy centered on using Section 2333 to target banks purportedly allowing funds to reach so-called terrorist organizations—on the theory that if the flow of money was cut, those groups could not operate. Shurat HaDin found dual U.S.-Israeli citizens to serve as plaintiffs and began suing these multinational financial institutions in the early 2000s for violating Section 2333 by providing “material support to terrorism”—a notoriously vague, overbroad concept that includes everything from giving money to terrorists to engaging in First Amendment-protected speech acts on their behalf.
Under Section 2333, any U.S. citizen injured by an act of international terrorism anywhere in the world can sue in U.S. courts and receive treble damages and attorney’s fees. As originally passed, Section 2333 only included a primary liability provision covering direct violations of the statute. In 2016, Congress amended the statute to add a secondary liability provision, as well. This provision makes defendants liable for aiding-or-abetting or conspiring to commit an act of international terrorism—thereby multiplying the class of harms that can trigger Section 2333.
Over the years, lawsuits devised by Shurat HaDin and others expanded to target defendants such as the PLO, as well as American tech companies, like Google and Twitter, for providing material support to terrorism. Section 2333 litigants have used similar theories to target American charities, like the Holy Land Foundation, that provide humanitarian aid to Palestine. Most recently, the Jewish National Fund and others brought a Section 2333 case against an American NGO, the U.S. Campaign for Palestinian Rights, for its advocacy work on behalf of Palestinian rights.
Despite the relatively expansive, plaintiff-friendly ways in which courts have interpreted Section 2333, most cases have failed because of their tenuous theories of liability—often involving several degrees of separation between defendant’s actions and the violence that injured plaintiffs. The most typical Section 2333 case has, for example, involved a bank providing financial services to a Palestinian individual or organization allegedly affiliated in some way with a terrorist group. Even though U.S. courts are typically quite sympathetic to terrorism plaintiffs—especially when their claims involve purported terrorism by Muslims or Arabs—plaintiffs have struggled to establish the elements necessary to succeed on these tort claims, at least beyond the motion to dismiss stage.
But success on the merits is not really the point. As Shurat HaDin’s founder has acknowledged, these suits are aimed not just at collecting damages but also at creating a “legal onslaught” to “humiliate and damage” those supporting the Palestinian cause. The ultimate goal, in other words, is to isolate Palestinians and delegitimize their pursuit of freedom and self-determination.
In targeting third-parties, in particular, actors like Shurat HaDin have understood the power of Section 2333 to communicate to members of the public that involvement with Palestinian groups or individuals is tantamount to participating in terrorism itself and can land them in a U.S. courtroom. Whether Shurat HaDin and its allies have achieved this chilling effect is hard to say. They have, however, embedded within U.S. case law the notion that Palestinian society is broadly engaged in terrorism, whether in the form of violent resistance or peaceful advocacy.
Recent events raise a compelling opportunity to potentially reverse these effects and revolutionize how Section 2333 has been used thus far. Instead of serving as a tool to marginalize and repress Palestinians, Section 2333 could become part of a “legal onslaught” to undo stereotypes associating Palestinians with terrorism and, instead, to “humiliate and damage” those providing support to Israeli settler groups.
Turning the Tables
Admittedly, there are reasons to doubt that Section 2333 claims brought by Palestinian Americans against those supporting Israeli settlers will succeed. First of all, secondary liability claims under Section 2333 can only be raised with respect to acts of international terrorism perpetrated by groups designated by the State Department as Foreign Terrorist Organizations (“FTOs”). As of this writing, no Israeli settler group—nor any other Israeli group, for that matter—is designated as an FTO, making this basis for liability unavailable to Palestinian American victims of settler violence.
Second, even though Palestinian American plaintiffs could still utilize the primary liability provision of Section 2333, that provision raises other challenges. While Section 2333 claims for primary liability can be brought for acts of international terrorism (including for providing material support to terrorists) that do not involve FTOs, to date, the success of those suits has largely depended upon underlying terrorism by FTOs. In addition, since the FTO designation was created in 1996, it has disproportionately targeted and implicated Arab and Muslim groups—meaning that most primary liability suits under Section 2333 have disproportionately implicated terrorism by Arab and Muslim rather than other groups.
Finally, a potential Section 2333 claim targeting Israeli settler violence is complicated by the contemporary U.S. approach to terrorism, which has been substantially informed by the Israeli approach. As scholars have shown, in the late 1970s and early 80s, Israeli officials and organizations held various events with American neo-conservatives where a particular view of terrorism that was relatively marginalized globally but popular inside Israel was promoted. This Israeli approach framed terrorism as a form of evil threatening the “civilized world” that was perpetrated primarily by Arabs and Muslims. Over the past forty years, this Israeli perspective has gradually become a solidly American one, culminating in the decades long War on Terror.
Despite these obstacles, one of the few Section 2333 cases brought on behalf of Palestinians may present a path forward. That case, Ahmad v. Christian Friends of Israeli Communities, involved primary liability claims and was filed by Palestinian Americans against several U.S. organizations providing financial support to Israeli settlers. While plaintiffs arguably presented a colorable claim that certain Israeli settlers had engaged in terrorism, the court dismissed their complaint. In doing so, it suggested that a “knowing” donor to Israeli settler groups would not inevitably know their money would support terrorist activities; while, by contrast, a knowing donor to Hamas “would know that Hamas was gunning for Israelis… and that donations to Hamas… would enable Hamas to kill or wound… people in Israel.”
Putting aside the court’s stereotypical view on who qualifies as a “terrorist,” its holding presents a blueprint for bringing renewed suits against supporters of Israeli settlers. While primary and secondary claims under Section 2333 have different elements, they both have knowledge and proximate causation requirements. The Ahmad case failed, in part, on the knowledge prong. On that issue, the court believed there was no general understanding that Israeli settlers engage in terrorist acts and that plaintiffs, therefore, could not show that defendants knew they were supporting terrorism by financially supporting Israeli settler organizations.
Ahmad was decided in 2014 when there was far less in the public domain—particularly in the United States—about Israeli settler violence. Now, the American public sphere is awash in such information. Palestinian civilians, civil society, and journalists have extensively documented this violence. Even mainstream U.S. media outlets—which generally only cover Palestinian violence against Israelis—have covered the settler rampage. This arguably makes it more plausible for plaintiffs to satisfy Section 2333’s knowledge prong.
While various doctrinal and factual pitfalls to success still exist, this explosion in widespread, publicly-available information about Israeli settler violence is an opportunity worth exploring, if for no other reason, than to challenge the prevailing narrative as to who is a “terrorist” and to place those U.S. organizations fueling settler violence on notice that their support for Israeli settler groups could place them in the litigation cross-hairs.
