A recently-filed complaint in a New York district court has the potential to compensate and provide judicial recourse to a handful of Palestinians terrorized by Israeli settlers in the occupied West Bank.
The civil suit is filed under a law that until now has been used almost
entirely to prosecute Muslim and Palestinian Americans.
On 17 May, the New York-based commercial law firm Melito and Adolfsen filed a complaint against five US organizations alleging that they had violated the material support statute, which prohibits individuals from “knowingly providing material support or resources to a foreign terrorist organization.”
The organizations are alleged to have supported terrorist activities by funding settlers who have firebombed, thrown stones and shot at Palestinians, burned Palestinian land and trees, and vandalized Palestinian houses of prayer in the West Bank.
The case is filed on behalf of 15 plaintiffs: 13 Palestinian individuals, one mosque and one Greek Orthodox monastery. All of the plaintiffs have experienced a physical attack or, what is commonly referred to as “price tag” assault, by settlers from nearby Jewish colonies that are given financial support by the defendants of the lawsuit.
The five organizations cited in the lawsuit are The Hebron Fund, Central Fund of Israel, One Israel Fund, Christian Friends of Israel and American Friends of Ateret Cohanim, all based in New York.
The complaint argues that without the monetary support of these American organizations, Israeli settlements would not be able to exist.
America’s courtrooms have played a crucial role in the US global “war on terror.” Under the material support statute in the Anti-Terrorism and Effective Death Penalty Act of 1996, the government has prosecuted dozens of individuals and organizations for providing “material support” to “terrorism.”
Furthermore, over the past dozen years, the courts have seen an increasing number of civil lawsuits filed under a provision within the Anti-Terrorism Act that allows a US national to sue an individual or organization to recover damages from an act of terrorism.
TwistOverall, more than 150 cases have been filed under the material support statute. According to a recently published article in the Harvard Law School’s National Security Journal, the majority of these cases have been brought against Muslim-affiliated organizations and individuals, including, notably, the Holy Land Foundation (“The chilling effect of the ‘material support’ law on humanitarian aid,” May 2013 [PDF]).
So this latest lawsuit filed under the material support law represents a twist on its established application, but not only because the plaintiffs are Palestinians. Representatives from Melito and Adolfsen explained to The Electronic Intifada that although the alleged acts of terror were committed overseas, the New York district court has jurisdiction in this case because the defendants are all US-based organizations.
Significantly, these organizations conduct the majority of their fundraising activity within the US — soliciting and raising money under the auspices and with the incentives of US tax law.
That US organizations that send money to fund settlement activity are able to register for tax-exempt status has been a source of consternation for some time.
The New York Times reported in 2010 that “at least 40 American groups … have collected more than $200 million in tax-deductible gifts to Jewish settlements in the West Bank and East Jerusalem over the last decade” (“Tax-exempt funds aid settlements in West Bank”).
Although settlers are not necessarily members of a foreign terrorist organization, they are allegedly violating the “law among nations” by intentionally driving the indigenous population from their land. The complaint asserts that “defendants are providing material support and financing for acts of terrorism and the efforts to drive the people of occupied Palestine off their land.”
“Forefront of Israel’s battle”The complaint primarily cites the rhetoric on the organizations’ own websites as evidence of their support for terrorist activities in the West Bank. For example, the Christian Friends of Israel openly bemoans the Oslo accords as a “territorial concession,” and characterizes settlers as being on the “forefront of Israel’s territorial battle.”
In addition, public records obtained by Jared Malsin at Salon.com revealed that The Hebron Fund gave money to support two men from the Jewish Underground convicted of carrying out deadly car bomb attacks on Palestinians in the 1980s (“New York charity abets Israeli settler violence,” 15 December 2011).
If the trial is allowed to go forward, the extent and kind of support that these organizations have given to various settlements will be further scrutinized.
The complaint’s argument seeks to portray settlers as “terrorists” on the basis that they operate independently from the Israeli government and with a distinct aim.
“Settlers would be unable to live in occupied Palestine but for the material support and financing provided by the defendants,” states the complaint.
Israeli settler attacks on Palestinians and their land have sharply increased over the past five years.
According to a 2012 report by the Jerusalem Fund, there was a 315 percent increase in attacks from 2007 to 2011. From 2010 to 2011 alone there was a 39 percent increase (“When settlers attack”).
During the first two weeks of June, 540 trees and 2,000 dunams of Palestinian grazing land were damaged by settler attacks, according to the United Nations’ Office for the Coordination of Humanitarian Affairs (one dunam is equal to 1,000 square meters) (“Protection of civilians: Two week reporting period,” June 2013 [PDF]).
And in the first five months of 2013, there were as many such attacks as in the whole of 2012.
In mid-June, the Israeli ministry distanced itself from the actions of settlers, but stopped short of designating “price tag” attacks and the like as “terrorism.”
As for the US, in its 2011 annual Country Reports on Terrorism, the State Department referred to “price tag” attacks as “terrorist incidents” (“Country reports on terrorism, 2011,” June 2012 [PDF]).
And in its 2012 report, it referred to them as expressions of “violent extremism” (“Country reports on terrorism, 2012,” May 2013 [PDF]).
Delicate approachIn an interview with Al Arabiya, attorney Eric Lewis was supportive of the pending complaint, saying, “I think it’s important for the American justice system to show that they are going to apply the statue in a neutral and even-handed way” (“Palestinians to sue US pro-settler groups,” 6 June 2013).
Lewis has served as an attorney to detainees at Guantanamo Bay and represented Palestinians accused of material support for terrorism.
However, for others, the lawsuit necessitates a delicate approach. According to Shayana Kadidal from the Center for Constitutional Rights, whether or not the suit reaffirms the problematically wide scope the law has acquired will depend on how it is argued.
Prior cases have helped to establish a broad interpretation of what constitutes material support, such as sending socks and cash to a particular group or providing training courses on diplomacy (“The legal black hole in lower Manhattan,” 27 April 2010).
Additionally, in US Attorney General Eric Holder’s case against the Humanitarian Law Project, the Supreme Court determined that intent to support terrorism was not necessary for a defendant to be found guilty of violating the statute. The activity in question was the Humanitarian Law Project’s educational work with the Kurdistan Workers’ Party in Turkey and the Tamil Tigers in Sri Lanka (“The First Amendment’s borders: the place of Holder vs Humanitarian Law Project in First Amendment doctrine,” Georgetown University law center, 2012 [PDF]).
Such rulings have made the “material support” statute function as “the primary tool for prosecutorial overreach,” according to Kadidal.
Sirene Shebaya, a civil liberties attorney, views the lawsuit with both interest and apprehension.
“It’s an understandable, novel and interesting way to use the law, but I still have deep reservations that it would expand the use and application of material support,” she told The Electronic Intifada.
Attorney Eric Lewis told commented to The Electronic Intifada: “If the cases are to go forward then the definition of terrorism should be applied literally and neutrally. Under the 2333 definition, both settler charities and charities that support families of those who die in the territories are both covered in my view.”
The organizations being sued did not respond to requests for comment.
Charlotte Silver is a journalist based in occupied Palestine and San Francisco. Follow her on Twitter @CharESilver.