Mondoweiss / September 24, 2022
A U.S. court has ruled in favor of a dozen U.S. families who, in 2009, sued Hezbollah for damage and injuries they suffered in the 2006 fighting with Israel.
On July 12, 2006, Hezbollah took three Israeli soldiers hostage, hoping to trade their release for that of Palestinian and Lebanese prisoners. Instead, Israel launched a massive military operation aimed at neutralizing Hezbollah. The result of the war was massive devastation of Southern Lebanon, over 1,100 Lebanese killed (the overwhelming majority of them civilians), 119 Israeli soldiers and 43 Israeli civilians killed, over 1 million displaced Lebanese, some 300-500,000 Israelis fleeing the north of the country, and Israel furious over its unexpectedly massive losses and Hezbollah’s emerging from the conflict intact and with an enormous boost in its popularity throughout the Middle East for having withstood Israel’s massive attack.
Israel’s own report into the conflict was scathing. It was a severe indictment of Israel’s conduct in the war, but it was concerned only with the military failures, not the needless destruction of so much of Southern Lebanon, most of which degraded civilian infrastructure and killed innocent Lebanese. In any case, and as is always the case in armed conflict whether the adversaries are evenly matched or not, it was inevitable that there would be a great deal of loss and suffering on both sides.
The U.S. Circuit Court’s decision last week takes things to a different level. Because Hezbollah is on the Foreign Terrorist Organization (FTO) list, Americans can pursue a case under the Anti-Terrorism Act. If Lebanon or Syria had caused these losses with their armies in a conflict with Israel, the Act would not apply. Only because Hezbollah is designated as an FTO, not a foreign state—an arguable point, considering the group’s prominent position in the Lebanese government—could this case have been brought.
That also means that an American citizen who might have been present in Southern Lebanon in the summer of 2006, or had property there at that time and suffered injury or loss would not be able to bring a similar case against Israel.
The plaintiffs were represented by the Israeli lawfare organization, Shurat HaDin, and its founder, Nitsana Darshan-Leitner, along with a New York lawyer, Robert Tolchin, from a law firm, The Berkman Law Office, which specializes in taking on “… international terrorist organizations, international banks that have funded terrorism, and finance companies that have helped terrorists hide their assets.”
Clearly, Shurat HaDin saw this as an opportunity to pull a pyrrhic victory out of what was widely viewed as a significant defeat for Israel in 2006. After the verdict was announced, Darshan-Leitner said, “This is a powerful and historic court victory against the terrorists that compels them to understand that Israelis will continue to pursue them even years after their rocket attacks. With this $111 million U.S. judgment against Hezbollah, we can begin to locate and seize their assets worldwide. (Hezbollah leader Hasan) Nasrallah believes he can continue to threaten Israel with his terrorist rockets, but the victims have legally struck back and aim to bankrupt him and his Iranian masters. Only by exacting a heavy price from those who engage in the business of terrorism can we prevent the suffering and loss of additional victims to their violence.”
In fact, it will be very difficult for the plaintiffs to ever receive any of this money. Hezbollah does not keep its funds in U.S. banks nor in places the U.S. can easily get it, and it is not at all clear that this ruling will make it possible to take action against businesses that may have a connection to Hezbollah. But it could have a damaging effect down the road.
In a far off future where the recognition and enabling of Palestinian rights are on the horizon, cases like this one will be a major disincentive for groups found liable in these decisions to come to terms, as they will find themselves vulnerable to the collection of these judgments if they are more connected to the U.S. banking system, as Afghanistan has learned to its dismay. And it’s not only Hezbollah and other non-governmental military groups that could be involved.
Just last month, Darshan-Leitner and Tolchin won a case which expanded the definitions of the Anti-Terrorism Act to enable American courts to hold governments liable should they fund a group that carries out an attack which harms Americans or their property overseas. According to a report in The Jerusalem Post, “The court said that financial support, weapons and training provided by Iran and Syria were crucial factors in aiding and abetting Hamas’s abilities to target innocent civilians, and that this long pattern of egregious conduct by the defendants merited the imposition of punitive damages.”
The merits of these decisions—trying to adjudicate such personal losses in a conflict zone including areas under belligerent occupation and only enforcing litigation on the occupied people and their resistance—are extremely dubious. Collecting on these decisions is not feasible, but for countries with economies as badly damaged as those of Iran, Syria, and especially Lebanon, they preclude open trade with the United States for fear of losing sums of money that, to them, would be quite significant even while, to the U.S. they’d be so tiny as to be unnoticeable.
These mechanisms are intentionally designed to work only in one direction. No court in the United States would consider actions by Israel to be terrorism. Nor would any U.S. court agree that the Israeli government is responsible for any action by settlers which might fall under the U.S. definition of terrorism, Palestinian Americans have no legal recourse. Only Americans harmed by Palestinian, or in this case, Hezbollah’s, actions can avail themselves of this legal remedy.
The obvious current example is Shireen Abu Akleh. Her family, whether they are living in Palestine or the United States, cannot use the Anti-Terrorism Act to seek recompense, much less justice, for the Israeli military intentionally murdering the Palestinian-American citizen and prominent journalist. Nor can the people of the West Bank and Gaza use these laws to seek penalties against the United States government which provides Israel with the billions of dollars of funding every year to buy U.S. weapons, planes, missiles, tanks, and more which are used to kill Palestinians, destroy their homes, prevent their freedom of movement, and ensure they have none of the rights we generally take for granted.
It’s not hard to understand that a person who lost a family member or sustained a major financial loss in an exchange of fire during the 2006 fighting would want compensation. But when only one side is afforded the means to seek it, that not only reinforces impunity on the other side, it makes it that much harder for those who are currently considered enemies to change that relationship.
And when the one side that is protected is the side committing daily crimes of dispossession, occupation, and massive violence while the more vulnerable side is the one experiencing those conditions and fighting back with the inferior means at their disposal, it is not just practically foolish, but morally reprehensible. The very definition of U.S. policy toward Israel and Palestine.
Mitchell Plitnick is the president of ReThinking Foreign Policy; he is the co-author, with Marc Lamont Hill, of Except for Palestine: The Limits of Progressive Politics