Updated Sept. 24, 2019 Since The Zionist Advocacy Center (TZAC) began using the False Claims Act (FCA) to legally challenge nonprofit organizations (NPOs) working in Palestine only three cases were publicly known. Although TZAC claims it has filed six more cases against NPOs, the identity of the defendants has been a mystery, as FCA cases are automatically sealed when filed for at least 60 days, often longer. Now a federal court has unsealed TZAC’s case against Oxfam GB (Great Britain). The complaint alleges that Oxfam’s Gaza Urban and Peri-Urban Agricultural Platform (GUPAP) provided material support to terrorism, contrary to its anti-terrorism certification to USAID.  TZAC argues that because GUPAP allegedly supports ministries tied to both Hamas, which is on the U.S. terrorist list, and the Palestinian Authority (which is not), Oxfam GB’s certification to USAID is false. The U.S. initially declined to exercise its statutory right to take over the case and on Sept. 20 told the court it plans to file a motion to dismiss. Oxfam told the New Humanitarian that “We are aware of the lawsuit and reject the allegation made in it.”

TZAC’s complaint, filed Feb. 20, 2018, claims that Oxfam GB is part of a larger confederation that is “anti-Israel,” citing NGO Monitor (an advocacy group that engages in disinformation, according to the Policy Working Group, which is comprised of Israeli ex-diplomats, academics and others).

The complaint goes on to list 30 USAID grants to Oxfam between October 2013 and September 2017, amounting to over $53 million. It quotes USAID’s anti-terrorism certification, where grantees state they have not knowingly provided material support to terrorism for the last ten years and will not do so. Although the Oxfam grants were not for the GUPAP program, which was funded by the Swiss government, the USAID certification applies to all activities of an organization, however funded. GUPAP operated between 2013 and 2017 with the goal of increasing small-scale agriculture in Gaza, where land is in short supply, thereby addressing food insecurity and decreasing dependence on foreign aid and markets.

The short (seven-page) complaint then alleges that, because the Ministries of Agriculture and National Economy are part of the government in Gaza and Hamas controls the government, GUPAP provided material support to Hamas by assisting the ministries with the agricultural program. This is similar to arguments TZAC has made in past cases. However, in this case, TZAC goes on to expand its legal theory to claim that the ministries are “nominally subdivisions of the Palestinian Authority,” which it claims is an “entity” that supports terrorism by providing financial support to family members of people injured or killed in the conflict with Israel. This includes families of people convicted or accused of terrorist offenses. TZAC calls this a “pay to slay” scheme, bringing hotly contested issues of fact and policy into the gray area surrounding the definition of material support.

The argument that any assistance or support to the Palestinian Authority is material support, despite the fact that it is not on the terrorist list, attempts to stretch the law beyond the limits of how it is currently applied. The U.S. government has provided funding to the Palestinian Authority in the same time frame that Oxfam supported the GUPAP program. So if TZAC’s reasoning is taken to its logical conclusion, the U.S. government has violated its own material support prohibition, as have any other entities that have done business with or worked with the PA. That may explain why the U.S. declined to intervene in the case.

TZAC seeks triple damages under the FCA, although even if Oxfam were found liable TZAC would not automatically be entitled to that amount. If Oxfam wins the case it could seek to recoup its legal costs from TZAC.

The court set the following schedule for the case:

  • The government’s motion to dismiss must be filed by Oct. 18;
  • TZAC will have until Nov. 18 to respond;
  • If the court denies the motion to dismiss Oxfam will have 30 days from the date of that decision to file its answer to TZAC’s complaint.

The pleadings indicate that Oxfam is represented by J. Emmett Murphy and Jeffrey S. Bucholtz of the law firm King & Spalding LLP, who successfully defended The Carter Center in a False Claims Act suit filed by TZAC.

For more information on lawfare attacks against NPOs see:

False Claims Act Lawsuits: What Nonprofits Need to Know

False Claims Act Cases Against NPOs