Litigating the Arab-Israeli Conflict: The Politicization of U.S. Foreign Courtrooms

Abstract

Since the establishment of the State of Israel in 1948, Palestinians have constituted a nation living as refugees in exile, as civilians under military occupation, or as members of a global Palestinian diaspora. Without a state and a sovereign government, redressing claims of grave violations of international human rights against the Israeli government that both dispossesses and dominates them is an arduous challenge. However, in the alternative to bringing claims in an Israeli court, Palestinians can also bring forth claims in U.S. courts pursuant to the Alien Tort Claims Act (ATCA). The ATCA is an eighteenth-century statute made actionable in the present day by a Second Circuit Court decision that held that the statute grants subject matter jurisdiction in federal courts for violations of international customary law. While U.S. federal courts have, through the ATCA, become formally available for redressing violations of international human rights, Palestinians have found no judicial recourse in these courts almost without exception. As defendants, Palestinians have no defenses available to them; as claimants, their claims do not withstand judicial scrutiny. The uniformity of judicial outcomes involving Palestinian plaintiffs and defendants is a function of their politicization, meaning their adjudication according to foreign policy interests irrespective of the legal questions at hand. As such, the politicization of cases involving the Arab-Israeli conflict and critical of Israeli occupation policies is indicative of the interlocking relationship between law and politics and is demonstrated by 1) undue deference to the Executive Branch; 2) legislative and executive endorsement of lawsuits against Palestinians; and 3) the supplanting of legal considerations for political ones in the application of the Foreign Sovereign Immunities Act as well as the political question doctrine.