Conundrum of the Day: Palestinian Statehood

Update: I am closing the comments to this post. My commenters cannot seem to decide whether I am an anti-Israeli bigot or an anti-Palestinian bigot. Mission accomplished? Anyway, the comments section seems to be taking a turn that isn’t appropriate for this blog.

As you know, I am not a public international law expert. I do try to keep up with the news, though, and I have been particularly interested by the Prosecutor’s December 2019 request for a ruling on the territorial jurisdiction of the International Criminal Court in the West Bank, Gaza, and East Jerusalem, which amounts to a request for a ruling about whether Palestine is or is not a state. I have been following Professor Heller’s Twitter feed for updates, including for links to the amicus briefs submitted by several states and NGOs arguing that in fact Palestine is not a state, at least for these purposes, and of course briefs arguing that Palestine is a state. There is a lot one could say here about the apparent disconnect between the view of many scholars and the view of much of the world community, but I want to plumb the depths of the Letters Blogatory archive for a minute to arrive at what I think is an interesting point: (more…)

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Everything About The Tlaib/Omar Story Is Terrible

Everything about the story of Representatives Omar and Tlaib’s aborted visit to Israel is terrible. No one in the whole affair has acted well. And the political motive for the whole fiasco—Donald Trump’s attempt to drive American Jews into the arms of the Republican Party—is so venal, so transparent, and, I hope, so doomed to failure that it makes me despair. (more…)

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Jerusalem Two Weeks On: the Good, the Bad, and the Ugly

Almost two weeks ago, the United States recognized Jerusalem as Israel’s capital. At the time, I applauded the move in principle though I expressed prudential concerns about the potential for a violent reaction. I had the strange experience of applauding President Trump’s speech, which plainly was written by people who knew their stuff and which—if people bothered to read it—was much more nuanced than press reports indicated. In summary, the President said that the United States was recognizing the reality that Jerusalem is Israel’s capital but was not making any assertions about the borders of Jerusalem. He called for maintenance of the status quo at the Temple Mount, and he referred to the holy site by its Arabic name, the Haram al-Sharif. So despite all the over-the-top press, it seemed to me that the change in the US position should only really be concerning to people who feel strongly that the original idea of the 1947 partition plan, which would have treated all of Jerusalem (east and west) and its environs as a corpus separatum not subject to any state’s sovereignty. There might be such people, but none of the parties themselves take this view, which seems to me an anachronism. If that’s not your view, I didn’t see how it was reasonable to oppose what the President said, unless you think that Israel has no claim to West Jerusalem, the portion of the city to the west of the Green Line (the border after the war that ensued when the Arab states rejected the partition plan and invaded what was to become the State of Israel).

Today, I want to look at what’s happened regarding Jerusalem since: the good, the bad, and the ugly.

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Case of the Day: Livnat v. Palestinian Authority

Joseph's Tomb at Shechem
David Roberts, Joseph’s Tomb at Shechem

The case of the day is Livnat v. Palestinian Authority (D.C. Cir. 2017). In 2011, Ben-Yosef Livnat was killed, and Yitzhak and Natan Safra were wounded, in a terrorist attack at Joseph’s Tomb, a holy site in Nablus. The Livnat and Safra families sued the Palestinian Authority, alleging that the terrorists in the incident were the security guards the PA had hired to guard the site. The claims were under the Anti-Terrorism Act, 18 U.S.C. § 2333, and for common-law torts. The PA moved to dismiss for lack of personal jurisdiction. The district court granted the motion, and the plaintiffs appealed.
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Case of the Day: Gilmore v. Palestinian Authority

The case of the day is Gilmore v. Palestinian Interim Self-Government Authority (D.C. Cir. 2016). Esh Kodesh Gilmore, a US citizen, was killed in a terrorist attack in Jerusalem in 2000. His estate and survivors sued the Palestinian Authority and the PLO, asserting claims under the Anti-Terrorism Act and on common law theories. At first, the PA and the PLO defaulted, but they later moved to vacate the default and moved to dismiss, arguing that the suit “was a politically-motivated attack on the PA and therefore non-justiciable,” and that Palestine was a state and therefore entitled to foreign sovereign immunity. The court vacated the default and denied the motion to dismiss. But the PA then failed to answer, and again was defaulted. After a hearing to assess damages, the PA again moved to vacate the default, this time filing an answer and promising to participate fully in the litigation, including in discovery. The court vacated the default.

In discovery, the PA asserted the state secrets and law enforcement privileges as to material created by the General Intelligence Services, the PA’s intelligence agency. The court ordered an in camera review of the documents withheld, along with an ex parte submission by the PA explaining the documents. At the close of discovery, the PA sought summary judgment, arguing that there was no admissible evidence “linking Gilmore’s murder to any particular person.” The evidence consisted of statements published online by the Israeli Ministry of Foreign Affairs, a passage from the book, The Seventh War, which recounted a prison interview that implicated Muhanad Abu Halawa, a former PA soldier, in the murder, a statement by an associate of Halawa written and signed while in Israeli police custody, the testimony of the associate during the trial of Halawa’s supervisor, and an expert report by a former IDF intelligence officer. The court agreed that the evidence was inadmissible and granted summary judgment. Gilmore’s estate and survivors appealed.
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Case of the Day: Sokolow v. PLO

Woman being evacuated after a Jerusalem terror attack
Aftermath of a 2002 Palestinian terror attack in Jerusalem. Credit: Times of Israel / Flash90

The case of the day is Sokolow v. Palestine Liberation Organization (2d Cir. 2016). I wrote about a similar case, Safra v. Palestinian Authority, back in 2015. The gist of the earlier case, which was decided in Washington, was that the Palestinian Authority could not be sued for damages under the Anti-Terrorism Act because it was not subject to the court’s personal jurisdiction. The irony in Safra was that in order to prevail, the PA had to argue that it wasn’t a state, since states are always subject to the personal jurisdiction of the district courts in cases where an exception to FSIA immunity applies. That’s not a legal argument the supporters of unilateral declarations of Palestinian statehood are likely to want to trumpet, but it carried the day.
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Case of the Day: Zivotofsky v. Kerry

The case of the day is Zivotofsky v. Kerry (S. Ct. 2015). At least since US recognition of the State of Israel in 1948, the United States has never recognized the sovereignty of Israel or any other state over Jerusalem. The State Department’s practice, when issuing passports to US citizens born abroad, is to list the country of birth in the passport; but its policy is never to list a country of birth that is at odds with the US position on recognition of a foreign state. Thus when a US citizen is born in Jerusalem, the passport does not list Israel or any other country as the place of birth; instead, the passport simply lists Jerusalem as the place of birth.
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Case of the Day: Safra v. Palestinian Authority

While I don’t generally write about personal jurisdiction cases, the irony in Safra v. Palestinian Authority (D.D.C. 2015), is too good to pass up, especially in light of the verdict in Sokolow v. Palestinian Authority yesterday. In Sokolow, the jury found that the Palestinian Authority was liable for more than $200 million to victims of terrorist attacks in Jerusalem several years ago under the Anti-Terrorism Act. In Safra, on the other hand, the Palestinian Authority avoided trial—if the court’s decision withstands appeal—by successfully arguing that the court in Washington lacked personal jurisdiction.
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Palestine Signs The New York Convention

The big news in the past few days is that Palestine, after being rebuffed by the Security Council, signed the Rome Statute, taking a first step toward seeking to bring war crimes charges against Israelis and also perhaps opening the way to war crimes charges being brought against Hamas terrorists. But Palestine also signed a bunch of other conventions, including the New York Convention.
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