Whether Israeli settlers are committing genocide is not a political question; Al-Tamimi’s case can proceed.

On February 19, 2019, the District of Columbia Court of Appeals reversed the lower court, and ruled that the case brought by Palestinians against Sheldon Adelson and other Americans can proceed.  Al-Tamimi v. Adelson, 2019 WL 660919 (C.A.D.C., 2019)

“The plaintiffs, both Palestinian nationals and Palestinian Americans, claim the defendants, pro-Israeli American individuals and entities, are conspiring to expel all non-Jews from territory whose sovereignty is in dispute. They sued in federal district court, pressing four claims: (1) civil conspiracy, (2) genocide and other war crimes, (3) aiding and abetting genocide and other war crimes and (4) trespass. Concluding that all four claims raise nonjusticiable political questions, the district court dismissed the complaint for lack of subject matter jurisdiction. We now reverse.”

Martin F McMahon, Attorney for the Palestinians

The Palestinians’ complaint is over 200 pages and and the Court’s summary is chilling:

The plaintiffs are eighteen Palestinians who mostly reside in the disputed territory and a Palestinian village council. The defendants, all American citizens or entities, are eight high-net-worth individuals, thirteen tax-exempt entities, two banks, eight construction and support firms and a former United States deputy national security advisor. The complaint alleges that the defendants engaged in a conspiracy to expel all non-Jews from the disputed territory. Specifically, the individual defendants (excluding Abrams) funneled millions of dollars through the defendant tax-exempt entities and banks to Israeli villages called “settlements.” Armed with this financial assistance, the settlement leaders hired full-time security coordinators who trained a militia of Israeli settlers to kill Palestinians and confiscate their property. The defendant construction and support firms destroyed property belonging to the plaintiff Palestinians and built settlements in its place and, here in the United States, the deputy national security advisor publicly endorsed the settlements. All defendants knew their conduct would result in the mass killings of Palestinians residing in the disputed territory. 

The lower court dismissed their complaint because it decided that five political questions were raised, and the courts typically avoid political questions which are better resolved by the Executive or Legislative Branches. 

Baker, the fountainhead of the modern political question doctrine, did not definitively resolve whether the doctrine is jurisdictional. Indeed, at one point, the Supreme Court suggested that the doctrine is not jurisdictional.

The political question doctrine arises from the constitutional principle of separation of powers. The “doctrine excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch.” Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230 (1986).

The DC Court of Appeals found that only two questions presented in the complaint are potentially political questions which might prevent the judiciary from considering the case. The first is who has sovereignty over the disputed territory? The other can be restated as: are Israeli settlers committing genocide?  To determine if these two questions are jurisdiction-stripping political questions, the Court of Appeals turned to the Baker factors. [Baker v. Carr, 369 U.S. 186 (1962)].

The first potential political question presented—who has sovereignty over the disputed territory—plainly implicates foreign policy and thus is reserved to the political branches. As the Supreme Court has explained, in our constitutional system questions regarding the “legal and international status [of Jerusalem] are … committed to the Legislature and the Executive, not the Judiciary.” Zivotofsky ex rel. Zivotofsky v. Kerry (Zivotofsky II ), 135 S. Ct. 2076, 2081 (2015). What is true of Jerusalem specifically is true of the entirety of the disputed territory. In fact, the Executive Branch recently addressed the question who has sovereignty over the disputed territory. See Statement by President Trump on Jerusalem (Dec. 6, 2017), https://www.whitehouse.gov/briefings-statements/statement-president-trump-jerusalem (“We are not taking a position [on] any final status issues, including the specific boundaries of the Israeli sovereignty in Jerusalem, or the resolution of contested borders.” (emphasis added) ).  On the other hand, the second potential political question presented—are Israeli settlers committing genocide—is a purely legal issue.  And it is well settled that genocide violates the law of nations. Simon v. Republic of Hungary, 812 F.3d 127, 145 (D.C. Cir. 2016)

 

Genocide has a legal definition. See United Nations Convention on the Prevention and Punishment of the Crime of Genocide art. 2, Dec. 9, 1948, 78 U.N.T.S. 277, 280 (defining genocide, in part, as “[k]illing members of [a national, ethnic, racial or religious group]” “with intent to destroy [the group], in whole or in part”). Thus, the ATS—by incorporating the law of nations and the definitions included therein—provides a judicially manageable standard to determine whether Israeli settlers are committing genocide. We recognize that the Alien Tort Statute, 28 U.S.C.A. Sec. 1350 “enable[s] federal courts to hear claims in a very limited category defined by the law of nations and recognized at common law.” Sosa v. Alvarez-Machain, 542 U.S. 692, 712 (2004). 

Naturally, the Department of Justice didn’t want the courts involved in this case and argued that the complaint could create an inter-branch conflict because, “[g]iven the level of political and military support provided Israel by the American government, a judicial finding that the Israeli armed forces had committed the alleged offenses would ‘implicitly condemn American foreign policy by suggesting that the [government’s] support of Israel is wrongful.’ ” Gov’t Appellee’s Br. 16.

However, the DC Court of Appeals concluded this concern, although entitled to deference, is now moot as the plaintiffs have waived any theory of liability based on the conduct of the Israeli military.

Ultimately, we believe that the court would create an inter-branch conflict by deciding who has sovereignty over the disputed territory. By answering the question—regardless of the answer—the court would directly contradict the Executive, which has formally decided to take no position on the question. We do not believe, however, that the court would necessarily create an inter-branch conflict by deciding whether Israeli settlers are committing genocide. A legal determination that Israeli settlers commit genocide in the disputed territory would not decide the ownership of the disputed territory and thus would not directly contradict any foreign policy choice. 

In the final analysis, the DC Court of Appeals concluded that the question who has sovereignty over the disputed territory does present a “hands-off” political question, but the question whether Israeli settlers are committing genocide does not.

If it becomes clear at a later stage that resolving any of the claims requires a sovereignty determination, those claims can be dismissed.

So Al-Tamimi and the others who brought this case climbed a very steep mountain to reach the courthouse doors. They have been admitted in, and now must climb Mt. Everest if they are going to prevail on their claims.