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KNOX v. PALESTINE LIBERATION ORGANIZATION

March 1, 2004.

LESLYE KNOX, individually, as personal representative of the Estate of Aharon Ellis and as natural guardian of plaintiffs Jordan Terrell Ellis, Reuven Carter, Shanon Carter, Shayrah Carter, Yoshavyah Carter and Amitai Carter, JORDAN TERRELL ELLIS, minor, REUVEN CARTER, minor, SHANON CARTER, minor, SHAYRAH CARTER, minor, AMITAI CARTER, minor, by their next friend and guardian Leslye Knox, PRINCE SHALEAK, MELLONEE ELLIS, FRANCINE ELLIS, LYNNE ELLIS, YIHONADAV ELLIS, TSAPHRIRAH ELLIS and ARON CARTER, Plaintiffs, -against- THE PALESTINE LIBERATION ORGANIZATION, THE PALESTINIAN AUTHORITY (aka "The Palestinian Interim Self-Government Authority" and/or "The Palestinian Council" and/or "The Palestinian National Authority"), YASSER ARAFAT, MARWAN BARGHOUTI, NASSER AWIS, ZIAD MUHAMMAD DAAS, ESTATE OF ABDEL SALAM SADEK HASSUNA, deceased and JOHN DOES 1-99, Defendants


The opinion of the court was delivered by: VICTOR MARRERO, District Judge

DECISION AND ORDER

Plaintiffs, the representative and heirs and survivors of the Estate of Aharon Ellis ("Ellis") (collectively "Plaintiffs") commenced this action asserting claims arising under the Antiterrorism Act of 1990, 18 U.S.C. § 2331 et seq. (the "ATA"), and other related common law tort causes of action. They allege that Ellis was murdered in a terrorist Page 2 attack that occurred in Israel in January 2002 and that the shooting was planned and carried out by defendant Abdel Salam Sadek Hassuna ("Hassuna") acting in concert with and under the direction and assistance of the Palestinian Liberation Organization ("PLO"), the Palestinian Authority ("PA"), Yasser Arafat ("Arafat"), chairman of the PLO and leader of the PA, as well as numerous other named and unnamed individual defendants (collectively "Defendants"). Before the Court is Defendants' motion pursuant to Fed.R.Civ.P. 12(b) to dismiss the complaint asserting lack of subject matter jurisdiction and non-justiciability.*fn1 For the reasons discussed below, Defendants' motion is denied.

I. BACKGROUND*fn2

 A. FACTS AND ISSUES PRESENTED

  On the night of January 17, 2002, Ellis, an American citizen then 31 years old, was performing as a singer before approximately 180 relatives and guests celebrating the Bat Mitzvah of twelve-year-old Nina Kardoshova ("Nina") at the David's Palace banquet hall in Hadera, Israel. At Page 3 approximately 10:45 p.m., random violence struck. While Nina, her family and guests were dancing, Hassuna, a named defendant in this case though now deceased,*fn3 arrived at the banquet hall, burst through the door and, using a machine gun, opened fire into the crowd of celebrants. Six people were killed in the attack, including Ellis, and over 30 were wounded. And so, a moment of terror supplanted symbolism with reality; what began as an initiation ended in fatality. For Ellis and the other victims, a rite meant to commemorate an early passage into life was turned, instead, into a bloody ritual vainly exalting death.

  Plaintiffs seek damages from Defendants, claiming that Hassana and the other individually named and unnamed defendants were employees, agents and/or co-conspirators of the PLO and PA and, as such, planned and carried out the attack acting in concert with or under instructions or inducements or with the assistance or material support and resources provided by the PLO the PA, Arafat and the other individual defendants.

  The issues the parties' arguments and rebuttals present to the Court, however, far transcend the tragedy that ended Ellis's life and the compensation his heirs seek from Defendants. As framed in its larger dimensions, the dispute Page 4 the parties portray implicates several other far-reaching questions. Is Palestine a state? Is the Israeli military occupation of Palestinian territories an illegal hostile act under international law, or a reality that bears on the validity of Palestine's claim to statehood? Are the PLO and PA constituted governmental entities of a state of Palestine entitled to sovereign immunity, or incubators and agents of international terrorism? Was the violent attack underlying this action carried out with the active knowledge, assistance or participation of Arafat and other high ranking PLO and PA officials? Are Defendants entitled to claim any form of state or governmental immunity to shield them from any further inquiry here into Plaintiffs' allegations? Does this Court possess authority to exercise jurisdiction over the subject matter or over any individual Defendants to permit discovery and further consideration of the merits of Plaintiffs' claims?

  Some of these issues are relevant to the matter before the Court. Others decidedly are not germane, even though interjected by the parties, and serve at least to provide some context and "atmospherics" that in some respects inform the actual controversy before the Court. Thus, the first challenge the Court addresses below is how to parse which issues are and are not properly here for adjudication.

 B. CHARGES AND COUNTERCHARGES Page 5

  The action at bar is actually one of several recent cases*fn4 commenced in United States courts against the PLO and PA and their officials by American citizens who reside or were visiting in Israel or in Palestinian territories over which the PLO and PA exercise some measure of governmental authority pursuant to certain underlying agreements detailed below. Plaintiffs in these cases, individually or in a representative capacity, assert claims for personal injuries arising from the crossfire of violence that has occurred during the longstanding conflict in that region of the world. As confirmed in the instant litigation, the plaintiffs and defendants in the various actions, each side represented by the same attorneys, spar over the same fundamental issues, which are articulated at two levels. Juridically, the plaintiffs assert claims of "international terrorism" pursuant to ATA § 2333. In turn, the defendants, invoking sovereign state immunity for the PLO and PA as governmental entities of Palestine, counter with a challenge to the court's subject matter jurisdiction, a question that has not been definitively Page 6 decided in any of the prior actions,*fn5 and so is presented here anew.

  But, somewhat overshadowing their weighty legal disputes, the parties in all of these cases also collide politically. Each side effectively accuses the other of misusing the judicial forum as a platform to advance its larger political agenda. In fact, on the basis of the record before it, the Court finds some truth to those accusations. A fair reading of the complaint and the papers and arguments presented in connection with this motion, and the related issues raised in the companion cases, reveals clear parallels between the legal skirmishes waged here and the epic struggles, portrayed in similarly charged rhetoric, over which the antogonists to the Israeli-Palestinian conflict have clashed through the years, on the ground in Israel and the Palestinian territories, and in countless international arenas.

  Thus, Plaintiffs assert in this action that the PLO and the PA are terrorist entities that from their inception — the PLO in the 1960s and the PA in 1994 — to the present, have carried out terrorist attacks as an established and systematic Page 7 policy and practice and as a means of achieving their political goals. (See Compl. 1 17-18.) To these ends, according to Plaintiffs, the PLO and the PA have "planned and carried out terrorist bombings and shootings" in which hundreds of innocent civilians have been murdered or wounded, including dozens of American citizens. (Id.) Plaintiffs lay culpability for these acts of violence and atrocities squarely on the PLO and the PA. Plaintiffs assert that these entities have acted through authorization and instructions of their officials, agents and employees, including Arafat and the other high-ranking PLO and PA officials, and have as a primary purpose "to intimidate and coerce [the Israeli] civilian population into acquiescing to defendants' political goals and demands and to influence the policy of the United States and Israeli governments in favor of defendants' political goals and demands." (Id. ¶ 31.)

  For their part, Defendants dismiss Plaintiffs' "extreme partisan allegations of terrorism" as a political attack on the PLO and the PA expressing "political animus against Palestine and its leadership" in general terms "similar to many statements of Prime Minister [Ariel] Sharon and the combative and hostile actions of his government. . . . " (See Memorandum of Points and Authorities By Defendants PLO and PA in Support of Their Motion Pursuant to Fed.R.Civ.P. 12(b) Page 8 To Dismiss The Complaint, dated November 6, 2003 ("Def. Mem."), at 24-25.) According to Defendants, the charges Plaintiffs level here not only render the case non-justiciable, but illustrate "the danger it poses to the peace process." (Id. at 24.) In asserting immunity allegedly grounded on the sovereignty of the "State of Palestine under international law" (Def. Mem. at 13), Defendants claim that the PLO and PA constitute core elements and functions of the government of Palestine and are thus entitled to the same immunity as Palestine. (See id. at 16.) They characterize Israel's military occupation of and settlements in Palestinian territories as being "illegal" and violations the Fourth Geneva Convention (id. at 27), and portray the occupation as constituting "oppressive measures against the Palestinian people and government," including "use of excessive military force . . . resulting in death and injury and destruction of property." (Id. at 13-14.) Defendants also point to the "constant suffering by the Palestinian people which has produced a continuing humanitarian crisis and anger and violence and support for violence that would not otherwise exist." (Id. at 13-14.) And they decry Palestine's often being "coerced into acceptance of conditions it opposes or would reject, many exacted by Israel in violation of international law. . . ." (Id. at 15.) Page 9

  The Court delves in such detail into these contentions at this point not to lend them undue legitimacy in the dispute at hand but, quite to the contrary, merely to cite them as exemplars of what is and is not properly and realistically before the Court in this lawsuit. By disposing of the collateral diversions early on, the Court hopes to narrow the inquiry and the parties' focus as the litigation progresses to the precise questions to be adjudicated here: whether these Plaintiffs have a cognizable and valid cause of action against any or all of these Defendants arising out of the tragedy that occurred at David's Palace in Hadera, Israel on the night of January 17, 2002.

  The parties actually do agree, albeit tacitly, on a point that their polemics then proceed to ignore: that this litigation cannot serve to transform this Court into another public platform used for the parties to reenact struggles over what, at bottom, present ancillary political issues, intractable questions that are neither before the Court in the legal dispute at hand, nor are readily susceptible of judicial resolution. Consistent with this observation, Plaintiffs will not emerge from this proceeding with a judgment that, as Defendants frame the issue, "adjudicate[s] history in progress" (Def. Mem. at 27) and:

  [a]ssesses the Palestinian-Israeli conflict over the years in order to adopt the complaint's political and Page 10 prejudiced view that all the violence in the region and beyond was by the PLO and PA and was pure terrorism, instigated, conducted and orchestrated by them and that they bear sole responsibility for all violent acts alleged to have been committed by Palestinians anywhere over the past three decades or more.

 (Id. at 26.)

  By the same token, for the reasons elaborated below, neither are Defendants to obtain, through the back channel of a judicial ruling by this Court, what has eluded them so far from national and international discourse in the political and diplomatic arenas: a declaration of illegality of the Israeli occupation of the Palestinian territories, and a constitutive statement by a branch of the United States government acknowledging or expressing recognition that Palestine is a state.

  That said, the Court is mindful that, enveloped beneath and through the smoke generated by the parties' adjunct rhetorical fray, there are issues that have tangential bearing on the Court's determination of the motion at hand: for example, whether, given the character and scope of Israel's occupation of the Palestinian territories and of Israel's relationship with the PLO, the PA and Palestinian leaders — as described by Defendants themselves and supported by the rebuttal documents upon which Plaintiffs rely — Defendants' claim of sovereign immunity deriving from the alleged statehood of Palestine can reasonably be validated for the Page 11 purposes of defeating the application of the ATA in this case. On this point, this Court finds the record before it ample enough to warrant a conclusion that Defendants' invocation of immunity must fail on two separate grounds.

  First, the Court is not persuaded that Defendants have compellingly established that Palestine is a state as defined by the governing standard applicable here: that articulated in § 201 of the Restatement (Third) of the Foreign Relations Law of the United States (the "Restatement (Third)") (1987). For, in the final analysis, Defendants' claim of statehood for Palestine reduces to an intense, enduring aspiration that, however devoutly wished, apparently still seems more boosted by impassioned protestations and pretensions than affirmed by the juridically recognized ensigns of a sovereign nation. Second, whatever the status of Palestine in the view of other countries, even if it were widely considered an independent state elsewhere, Palestine is not a foreign entity politically recognized by the United States, and therefore, is not one entitled in our courts to be accorded all the privileges and immunities of sovereign states to which this country, acting through the executive branch, does confer formal recognition.

  II. DISCUSSION

 A. STATEHOOD UNDER THE RESTATEMENT

  1. Sovereign Immunity in General Page 12

  The relevant civil remedies provision of the ATA provides that any United States national (or his heirs) may recover treble damages against those who cause him injury through acts of international terrorism. See 18 U.S.C. § 2333. A 1992 amendment to the ATA bars any actions under that provision as against "a foreign state, an agency of a foreign state, or an officer or employee of a foreign state or an agency thereof acting within his or her official capacity or under color of legal authority." 18 U.S.C. § 2337. More broadly, the Foreign Sovereign Immunities Act, 28 U.S.C. § 1602 et seq., deprives federal courts of jurisdiction over any "foreign state" in any civil action, subject to exceptions not relevant here. See 28 U.S.C. § 1604; see also Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 443 (1989) (holding that "the FSIA provides the sole basis for obtaining jurisdiction over a foreign state in the courts of this country"); Arriba Ltd, v. Petroleros Mexicanos, 962 F.2d 528, 532 (5th Cir. 1992).

  The PLO and PA assert that they are part of the "foreign state" of Palestine. Thus, they assert that the FSIA deprives this Court of jurisdiction to hear any aspect of this case and that § 2337 exempts them from the ATA cause of action in particular. As an initial matter, the Court makes clear that these two inquiries are identical, for purposes of this motion. There is no indication that the term "foreign state" Page 13 means something different in Title 18 of the United States Code than in Title 28. In fact, the legislative history of the 1992 ATA amendment indicates that it was intended merely to clarify that ordinary principles of sovereign immunity, as codified by FSIA, would apply to foreign states and their instrumentalities.*fn6 Thus the Court addresses the question of sovereign immunity without differentiating ATA and FSIA principles.

  The Court must therefore determine whether there exists a "foreign state" of Palestine and, if so, whether the the PLO and PA are essential elements of that state. Defendants need not demonstrate that either the PLO or PA would, by itself, Page 14 satisfy the criteria for statehood. See Transaero, Inc. v. La Fuerza Aerea Boliviana, 30 F.3d 148, 153 (D.C. Cir. 1994) (holding that "the core functions of the armed forces . . . are as a rule so closely bound up with the structure of the state that they must in all cases be considered as the `foreign state' itself"). The Court concludes that PLO and PA are not entitled to ...


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