Throughout the 22-day war in Gaza, legal definitions like "distinction" and "proportionality" entered the media's coverage of Israel's actions. The 24-hour news cycle kept the world up-to-date on the destruction, and demands for international legal action appeared before the parties could even put pen to cease-fire. Four days after Israel suspended its campaign, Al-Jazeera reported that the Israeli foreign minister Tzipi Livni nearly cancelled an appearance at the European Union headquarters in Belgium because various European attorneys had petitioned a court there to arrest her on war crimes charges.
Palestinian supporters accuse Israel of disproportionate violence, while Israelis point to Palestinian acts of terrorism as justification. Both war crimes and terrorism have definite legal definitions, but in a world where the United States has declared war on the whole concept of terrorism, international law becomes tricky to navigate.
Nevertheless, the international community's quickness to jump to legal action alongside or even in advance of diplomatic treaties and peace processes could signify a shift in how foreign aggression is settled.
International criminal law deals with egregious violence between states or citizens of different states. It seems that victims of war crimes as well as terrorist attacks would be most likely to seek redress in these courts, where the jurisdiction is supranational and the judgment receives borderless sanction.
But The Hague keeps a crowded docket, and genocide in the former Yugoslavia takes precedence over blown-up school buses in Jerusalem. Since the late '80s, victims of terrorist attacks have turned to civil law, seeking pocketbook rather than prison justice. They may have a better shot at success, especially if they can go to trial in US federal court.
Rhode Island attorney David J. Strachman is one of the leading prosecutors in the developing field of Civil Terrorism Law. He wrote the first book on the topic, along with some colleagues, and presented its basic tenets in a recent talk at the Rochambeau branch of the Providence Public Library.
Wearing a black yarmulke over his bald spot, khaki pants and a blazer-over-sweater-over-button-down combo, Strachman appears intelligent but not intimidating, more accessible than most specialized lawyers. He handles questions and comments like an elementary school teacher, praising the respondent's point but going on to make his own.
Strachman tries his damndest to funny up his legalese, mixing yawner nouns like "adjudication" and "tort claims" with sarcasm and bad stand-up stage asides. He defines the problem of all civil law, not just civil terrorism law, succinctly: "Where do you sue, who do you sue and what law applies?"
He explains there are two major statutes that allow American plaintiffs to sue terrorist sponsoring organizations. These pillars of civil terrorism law--the Klinghoffer Act and the Flatow Amendment--are addendums to or modifications of the Alien Tort Claims Act of 1789. That act--originally devised to settle the claims of slave traders and other shipping businessmen resulting from pirate plundering--established US federal jurisdiction for recovering damages in civil suits where the defendant is an alien and committed a crime "in violation of the law of nations or a treaty of the United States." It's pretty sweeping legislation, but, Strachman says, was insufficient to satisfy the claims of victims of terrorist attacks.
This changed when the daughters of Leon Klinghoffer, an American tourist held hostage and killed by Palestine Liberation Front members while on a cruise, lobbied Congress and secured the passage of the Anti-Terrorism Act of 1991. Strachman calls the Klinghoffer statute a "remedy" and a "beautiful tool" because it expands both the pool of plaintiffs and the class of plaintiffs beyond typical tort claims law.
"If something happens to an American overseas," Strachman explains, "under the statute you can haul that terrorist into court anywhere in the United States." The act also "relaxes the rules" for serving process on the defendant, because, Strachman points out, "how do you sue Yasser Arafat when he's hiding in the Moukata in Ramallah with Israeli tanks all around him?" The answer: you can try him, or any one else sued under the legislation, in absentia and collect on assets held in the US.
Most important, because it deals with how much money victims can get, the Klinghoffer statute defines potential defendants in civil terrorism suits as "anyone who provides material support and assistance to a terrorist." As Strachman puts it, "anybody along the food chain can be held responsible," including, sometimes, foreign governments.
In the New York decision that led to Klinghoffer and later Strachman's victory, the district judge ruled that the Palestine Liberation Organization could be sued in US courts because it was an organization rather than a state and, thus, not protected by international law.
But the defendants in civil terrorism suits wanted to be able to recover as much money as possible. Suing a government, for example Iran, is bound to be more lucrative than targeting a Hamas cell, or even a particular suicide bomber. "There are a lot of practical considerations that go into targeting terrorism," Strachman says. "One, who's the deep pocket, and, two, whether we can actually reach that person."
In Alien Torts Claim Act history, on the rare occasion that a suit is successful, the defendant rarely had sufficient assets in the US to satisfy the final judgment. "The statute basically says, we want American citizens to go out and attack terrorism in court," Strachman says, "well what good is that if you can't satisfy the judgments?" To that end, Strachman goes after "state sponsors of terrorism," using court testimony to link them to terrorist organizations and thus hold them accountable for damages.
Suing a state is a foreign concept in international law, which operates on the legal principle of "sovereign immunity." Much as a foreign diplomat accused of crimes can retreat into the protection of diplomatic immunity, so the governments of foreign states are supposed to be un-sue-able.
So an addendum to the Klinghoffer statute called the Flatow Amendment appeared, after much congressional lobbying by the families of terrorism victims. Flatow creates an exception to foreign sovereign immunity. Under Flatow, if and only if a foreign government is a US-declared "state sponsor of terrorism" can it be sued.
The State Department keeps an official list (current members include Sudan, North Korea, Iran and Cuba), but before you can bring suit against one of the listed countries, you must obtain permission from the State Department. Of course, as Strachman points out, "It's very political who's a state sponsor and who's not."
But once he secures judgment, making terrorists pay is not so easy. Strachman claims that though he uses the US legal system to obtain civil justice, he often runs up against the government when it comes to settlement money. "The biggest enemy for terrorism victims in a legal sense is not the terrorists themselves but the US government, who repeatedly stymies attempts of terrorism victims to obtain satisfaction of their judgments."
Strachman goes after whatever assets he can, from Shah-era Iranian antiquities held in a University of Chicago museum to withholding taxes from Palestinians working within the Green Line collected by Israel and designated for transfer to the Palestinian Authority. This all involves a good deal of legal tap-dancing, lobbying and hunting down of available funds to attach to the suit settlements. The Iranian antiquities, for example "had nothing to do with the Islamofascists who run Iran now," Strachman says, "but they had the mantle of the state, so we could get any asset that was owned by Iran."
Meanwhile in Guantanamo
The Klinghoffer and Flatow amendments are meant only for terrorism suits. But the legal theory behind them, especially the question of jurisdiction, could have powerful implications. Setting up the US federal court system as an arbiter of international justice, involving parties from all over the world, raises questions of American legal accountability in both the domestic and foreign contexts.
If you've ever witnessed a painful divorce you know that civil law requires subscription to a tight oppositional mentality with little room for gray area. Coming from this arena, it's not surprising that Strachman uses the idea of the law itself to present the dichotomy between "Us" and "Them." He imbues his comments on "how wonderful the American legal system is" with a healthy dose of American Exceptionalism: "To think that everything we do, the sort of rights that we have can be adjudicated and the smallest detail of those rights can be fought over is shocking. To think that the level of refinement that our society has over the narrowest of issues...no other country has anywhere near what we have."
But what if that American legal refinement were turned against Israel or the United States, rather than the "terrorist" Palestinian Authority? When asked about the potential war crimes charges against Israel's Livni, Strachman practically guffaws. "Obviously to compare a politician in a western democracy with somebody like Abbas is obscene" he says. "It's pornographic. It's an absurdity to suggest that they have courts over there that can address these things."
Instead, some suggest "these things" like torture and war crimes and Bush Administration policies in the War on Terror can be addressed in the American legal system. Now, acts of war are not considered terrorism, and there are specific international legal exceptions for them. Nor is the US government considered a "state sponsor of terrorism." So while the action of torturing prisoners in Guantanamo may be comparable to these same acts committed by "unlawful enemy combatants," Strachman holds they cannot be defined as terrorism.
But torture practiced by a state does violate the Geneva Convention, and it would seem to follow that while legally prosecutable in international criminal court, plaintiffs could also try their luck at suing their torturers in US court, flipping the system to their advantage.
Like the awarding of damages, that depends on how much the US government and court system is willing to place itself in jeopardy. In late 2008, the US District Court of Appeals ruled against four former Guantanamo detainees who tried to sue former Secretary of Defense Donald Rumsfeld for damages related to crimes committed against them while they were held in the prison. The court claimed official immunity for Rumsfeld and cited the need to uphold national security; the Supreme Court recently ordered the District Court to revisit the decision.
President Obama, of course, just signed an executive order to close the Guantanamo base. But those who see his inauguration as the advent of a more sympathetic attitude toward the Middle East or international justice shouldn't be so sure. Obama's inaugural address maintained the kind of binaries Strachman uses when talking about his legal opponents. "For those who seek to advance their aims by inducing terror and slaughtering innocents," Obama said, "we say to you now that our spirit is stronger and cannot be broken. You cannot outlast us, and we will defeat you." Al Qaeda might respond, "See you in court."
SIMONE LANDON B'10.5 obstructs justice.