Exclusive: US Court Rejects BDS ‘Lawfare’ Suit in Precedent-setting Case

Illustration (Image credit: Wix)

The Jerusalem Herald spoke on Wednesday with international lawyer Marc Zell, Vice President of Republicans Overseas and Chairman of Republicans Overseas Israel, about a groundbreaking legal victory Tuesday over the BDS movement that seeks to economically attack Israel.

In the “huge victory,” as Zell put it, the US District Court of Washington, DC, rejected a lawsuit submitted by “Palestinians and Palestinian-Americans” from “East Jerusalem,” Judea and Samaria, as well as Gaza, in addition to five Palestinian village councils. They sought to legally penalize various groups that donated funds, distributed charity, or did business over the “Green Line,” namely the 1949 Armistice line.

Forty-nine defendants were the target of the case, including various individuals, corporations, NGOs, banks, and the United States itself – former US Deputy National Security Advisor Elliott Abrams was singled out as a defendant in the case, and the US substituted itself as a defendant.

Zell was personally involved in the legal battle, as he represented most of the US tax-exempt charity organizations that were sued, including American Friends of Ariel, American Friends of Bet El Yeshiva, Honenu National Legal Defense Organization, The Hebron Fund, Gush Etzion Foundation, and others.

Notable donors to Israeli towns in Judea and Samaria who were targeted included Sheldon Adelson, John Hagee, Irvin Moskowitz, and Haim Saban, while corporations listed in the suit included G4S, RE-MAX, Motorola, Hewlett Packard, and Volvo. Several banks such as Bank Leumi and Bank Hapoalim also appeared in the suit.

"Genocide" Charities?

So what were the “crimes” of these individuals and organizations according to the plaintiffs? Several accusations were leveled, starting with charges of engaging in a “civil conspiracy to expel all non-Jews from East Jerusalem, the West Bank, and the Gaza Strip.”

The BDS activists went on to claim the defendants “committed war crimes, crimes against humanity, and genocide.”

As if genocide wasn’t enough of a claim, they further sued for “aiding and abetting war crimes,” and for being involved in “a 30-year pattern of aggravated and ongoing trespass.”

Zell notes that they sought $1 billion in damages through the suit; initially they demanded around $40 billion before eventually backtracking.

No Political Jurisdiction

In its decision on Tuesday, the court threw out the lawsuit by siding with the defendants, who argued that the court lacked jurisdiction and therefore was prevented by US law from hearing the case.

The court also ruled that it lacked subject matter jurisdiction, because the case was “replete with non-justiciable political questions” which would be inappropriate for the judiciary to decide according to US constitutional laws.

In this context, Zell drew a parallel to the case of Zivotofsky v. Kerry, in which American Jews sought to have “Israel” put on the passport of their child who was born in Jerusalem. The US Supreme Court cited the same reasons when it ruled in 2015 that this was a political question beyond their jurisdiction, because the US president has yet to officially recognize Jerusalem’s status as part of sovereign Israel.

Not delving into political decisions is a decades old judicial doctrine according to Zell, who noted that the case against the United States was also thrown out in addition to the suit against the individuals and organizations. The state claimed immunity from lawsuit and cited the Federal Tort Claims Act, and the court agreed the suit was not appropriate.

When asked about the US government’s involvement in the trial, Zell said that the state “actively resisted the case.”

"Next Time We'll Sanction"

“This is a lawfare case, this is the kind of case that the BDS movement tries to bring all the time against charitable organizations and donors, and they fail all the time,” Zell told The Jerusalem Herald.

He added that despite the ruling, the BDS movement, which seeks to boycott and economically damage Israel by targeting Israeli activity in Judea and Samaria, still plans to file more “lawfare” cases. One of his clients who he represented in the case has in fact already been threatened with renewed lawsuit attempts.

Because of this, he notes “the victory is important to put them (i.e., the BDS activists) in their place. Now if they try to file another case, then we will use this as a precedent to defeat them, and also to obtain sanctions against them for doing so.”

As a result, the ruling may well prove to be a watershed event in providing legal protection to groups supporting the Jewish presence in Judea and Samaria.

According to Zell’s assessment, the plaintiffs are likely to appeal to the US Circuit Court of Washington, DC, which he noted is the “second most prestigious in the US” – but he added with confidence: “I think they’ll also fail there.”

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...הָרִימִי בַכֹּחַ קוֹלֵךְ מְבַשֶּׂרֶת יְרוּשָׁלִָם הָרִימִי אַל תִּירָאִי אִמְרִי לְעָרֵי יְהוּדָה הִנֵּה אֱלֹקֵיכֶם! (ישעיה  מ:ט)

...Raise your voice with strength, herald of Jerusalem; raise it, do not be afraid; say to the cities of Judah, "Here is your G-d!"

(Isaiah 40:9)

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