[Ed. note: Due to a transcription error, an earlier version of this report misidentified Anera as a Hamas-affiliated organization in Gaza. The organization in question is an-Nour. We regret the error.]
Nitsana Darshan-Leitner, founder and president of Shurat HaDin, an Israel-based non-profit law center, spoke to a November 28th Middle East Forum Webinar (video) about legal actions taken against terror organizations and their financial patrons on behalf of the terror victims she represents.
In the two decades Shurat HaDin has been fighting for those victims either injured or killed by terror attacks, Darshan-Leitner said she has sued a wide range of designated terror organizations, including the entities who fund them, "for aiding and abetting terrorism." These include "Hamas, Islamic Jihad, Hezbollah, Palestinian Authority, Iran, Syria, North Korea, Arab banks, European banks, Chinese banks, Lebanese banks, even going after the social media, Twitter, Google and Facebook, fighting terrorism in court."
To illustrate the persistence required to secure justice for Israeli and American victims of terrorism, Darshan-Leitner described several cases Shurat HaDin has tackled. One case involved the prominent Hamas-affiliated Qawasmeh family in Hebron, several members of which plotted a scheme to aid Palestinian prisoners in Israeli jails. They were mindful of the success of kidnapping Gilad Shalit, an Israel Defense Forces (IDF) soldier held captive by Hamas for years and released after negotiations with the Israeli government. The exchange of Shalit for 1,240 jailed terrorists inspired the Qawasmeh family members to repeat a kidnapping. To carry out their scheme, they needed to secure a sum of 220,000 shekels.
The kidnappers approached an-Nour, a Hamas-affiliated non-profit 501(c)3 charity in Gaza that funds Hamas terror attacks, pays financial rewards to the families of suicide bombers, and compensates Hamas prisoners in Israeli jails. An-Nour gave the kidnappers the full amount in cash, with which the kidnappers purchased the necessary cars and guns. After failing to find an IDF soldier looking for a lift at a nearby transit junction, they picked up three hitchhiking Israeli teens on their way home. Fearing discovery, the kidnappers killed the teens and buried them in a field. While planning to resume their plot, they were discovered and arrested by Israel's security services. [Ed.: The incident set in motion the series of events that led to Israel's 2014 Gaza operation.]
Darshan-Leitner said that one of the kidnappers confessed to having plotted a similar scenario twenty years earlier, but he lacked sufficient to execute it. "This is what money does," she said; it enables terrorists to conduct their attacks.
Shurat HaDin represented the families of the murdered teens and filed two lawsuits. One, brought in the U.S. against Iran and Syria, accused them of state sponsorship of terrorism. The U.S. grants specific exceptions to immunity granted under international law if a state sponsor of terrorism is sued and proof is presented that said state funded the act of terror. The second lawsuit, filed by Shurat HaDin in Israel, was brought against Hamas.
Darshan-Leitner said the U.S. court awarded a judgment in her organization's favor after proving via the terrorist's confession and expert testimony that Iran funds Hamas. Collecting on the judgment entails targeting U.S.-based Iranian assets, such as frozen bank accounts, real estate holdings, and business deals. In one such deal, Iran had agreed to purchase eighty aircraft from Boeing for $17 billion.
Although proving Hamas's liability in terror attacks was not difficult, proving its connection to the Palestinian Authority (PA) in the lawsuit against Hamas in Israel was a greater challenge. Expert testimony proved that the varied wings Hamas creates to obfuscate the connection between them are all one entity that leads to the Hamas organization. Moreover, despite the competition and conflict between the PA and Hamas, the PA fully funds Hamas's $1 billion budget to support Hamas offices in Gaza, its employees' salaries, and Hamas prisoners jailed in Israel.
Shurat HaDin put a lien on Hamas's money held by the PA, stipulating to the court that these funds should go to terror victims, not to Hamas. Under Israeli law, the third party in a suit is responsible for the debtor, which means the PA owes Shurat HaDin in the judgment the courts awarded in Shurat HaDin's favor. The PA refused to pay, so Darshan-Leitner's organization put a lien on the Israeli Treasury, which collects and holds billions of shekels in taxes that it transfers to the PA monthly. Although Israel's outgoing government refused to pay Shurat HaDin out of fear the PA would collapse, she hopes the incoming government will "respect the rule of law" and enforce the judgment on behalf of terror victims.
Shurat HaDin filed a different lawsuit against the PA in U.S. federal court in New York in 2004 on behalf of American citizens killed or injured by PA police and security guards. Darshan-Leitner said the lawsuit was filed in New York "because I wanted to receive a judgment not from the Israeli court but from a Federal Court in the United States, granted by a jury that will come and declare who's responsible for paying for the Intifada, who is really steering the Intifada."
The PA filed a motion to dismiss, which was denied. In the case, which came to court in January 2015, the PA claimed that killing Jews was not their policy, but because their employees went "rogue" by committing attacks "after work hours," the PA bore no responsibility. Darshan-Leitner said that "when the trial opened, they found it hard to explain to the jury if they were rogue employees, how do you keep paying their salary until today? These terrorists were sitting in the Israeli jail receiving a salary from you every month."
She noted that terrorists in Israeli jails get PA salaries tri-monthly, suicide bombers' families get stipends, and schools, streets, and institutions are named for these terrorists. The New York jury issued a $655 million judgment in Shurat HaDin's favor, finding the PA responsible for the twenty-four acts of terrorism cited in the lawsuit.
The PA, shocked at the findings, considered filing an appeal. To do so, however, required a bond to be posted in the amount of the judgment. The PA enlisted the aid of the State Department under the Obama administration, which convinced the court judge to lower the judgment amount to a $10 million bond. With the aim of avoiding a declaration of bankruptcy, the PA legal team also filed "a statement of interest" in the court, claiming the PA was a "national security asset in the Middle East."
Darshan-Leitner said that the PA's legal team forwarded a technical argument on appeal based on "personal jurisdiction." However, their assertion that the PA has no personal jurisdiction because it "does not exist" in the U.S. presented a dilemma for the court.
Shurat HaDin had filed its case based on the Antiterrorism Act, an extraterritorial law enabling American citizens injured or killed abroad by terrorists to bring suit in the U.S. against overseas organizations. The dilemma was that because the State Department, in essence, issued a statement that the PA did not have the money to pay, the "judgment was unconstitutional."
Undaunted, Darshan-Leitner went to Congress and presented the dilemma, saying that the suit had been litigated over fifteen years "based on a law that [Congress] legislated" but that a court now found "unconstitutional." She argued that Congress could fix the law by reinstating personal jurisdiction. If the PA wanted to continue receiving U.S. financial aid, they would have to agree to the reinstatement. After Congress changed the law, the PA declared they would forego further U.S. aid. Although aid to the PA eventually resumed, Shurat HaDin will persist in challenging the courts and Darshan-Leitner said she is confident that they will "ultimately win the case."
Shurat HaDin also fights diplomatic challenges. It filed a lien on the assets of Al-Haq, an Israel-designated terror organization, arm of Hamas, and key element behind the U.N.'s Pillay Commission, which accuses Israel of "war crimes" in its last Gaza operation fighting Hamas. Darshan-Leitner said that Navi Pillay, an "avowed antisemite" who heads the committee, is not only conducting a "crude" investigation against Israel's defensive operation but is even targeting Israel's birth as a state in 1948, thereby questioning Israel's right to exist. It was Al-Haq that, along with ninety other pro-Palestinian organizations, submitted briefs against Israel to the U.N. committee. The Pillay Commission bases its charges against the Jewish State on Al-Haq's filing.
Holding banks accountable for funding terror organizations has become more difficult. In the past, it was sufficient to prove the existence of wire transfers from a bank to such organizations. Today, the burden of proof required in U.S. courts is much higher in that it must be proved that a bank "conspired" with the murderous aims of a terror organization.
Darshan-Leitner said the most significant challenge recently faced by her law center is from the social media tech companies. Shurat HaDin claims they violate the U.S. Antiterrorism Act by providing services to terror organizations. In the face of lawsuits filed against them in U.S. Federal Courts, social media companies claim they are immune under Section 230 of the Communications Decency Act and therefore cannot be sued. Darshan-Leitner said that Shurat HaDin "finally scored a victory in the Supreme Court of the United States [which] agreed to hear our case." This will be the first opportunity for the Supreme Court to determine whether social media companies "should enjoy immunity or not."
In response to a question on this subject, Darshan-Leitner said "the balance changed" in that Israel is not seen as set upon by enemies' intent on destroying it; rather, now the Palestinians are considered victims. Despite Israel's efforts to "explain the history of the conflict" and uphold its right to return to its ancient homeland, the danger is that the U.S. Boycott, Divestment, and Sanction (BDS) movement is "poisoning" the minds of American youth, inciting them to protest and question Israel's legitimacy. A new project being developed in Israel will, with the aid of artificial intelligence technicians and psychologists, allow Israel to "fight this battle on social media."
"This is our work," Darshan-Leitner said. "We give some measure of closure to the terror victims, and we punish those who kill innocent citizens on the streets of Jerusalem and Tel Aviv. We come with a very clear message that there is a very high price to [pay for] Jewish blood."
For more information: israellawcenter.org
Marilyn Stern is communications coordinator at the Middle East Forum.