Plaintiffs brought an action against the US Campaign for Palestinian Rights under the Anti-Terrorism claiming that, by acting as fiscal sponsor for the Boycott National Committee, a coalition of organizations in Palestine, the USCPR should be held liable for injuries caused by incendiary kites and balloons launched into Israel from Gaza. USCPR’s motion to dismiss for failure to state facts supporting this claim is pending in federal court.
In November 2019 the Jewish National Fund and 12 individual Americans living in Israel filed suit against Just Peace in the Middle East, a U.S. charity d/b/a the US Campaign for Palestinian Rights (USCPR). The suit makes claims under the Anti-Terrorism Act for damages caused by incendiary devices launched into Israel from Gaza by unnamed persons. JNF argues that USCPR is liable because it collects funds from U.S. donors for the Boycott National Committee (BNC) in Palestine and one of BNC’s members is a coalition that includes Hamas, which the State Department has designated a Foreign Terrorist Organization (FTO). USCPR’s motion to dismiss, filed March 5, 2020, argues that the plaintiffs have not alleged facts to support their conclusions, that USCPR’s activities are lawful, that plaintiffs rely on guilt by association and have not alleged facts that would “bridge the gap between these lawful, peaceful and protected acts and the damage caused…” USCPR’s motion to dismiss the case for failure to state a claim is pending in the United States District Court for the District of Columbia.
The Anti-Terrorism Act (ATA) allows any U.S. national suffering injury due to an act of international terrorism to sue in federal court and, if successful, recover triple damages. (18 USC 2333(a)) The standard to establish liability (18 USC 2333(d)(2)) is for an act of international terrorism to be “committed, planned, or authorized” by a designated FTO or “any person who aids and abets, by knowingly providing substantial assistance, or conspires with the person who committed such act of terrorism.”
JNF’s suit is based on three allegations against USCPR:
• First, JNF alleges that, by acting as the U.S. fiscal agent for the BNC, the USCPR supports Hamas. The BNC was established in 2008 to promote boycott of Israel as “a central form of civil resistance,” responding to a call from more than 170 Palestinian civil society organizations. The BNC is not on the U.S. FTO list. The plaintiffs allege that one of BNC’s members, the Palestinian National and Islamic Forces (PNIF), which also is not on the U.S. FTO list but includes Hamas, has an unnamed representative on the BNC Secretariat. The motion to dismiss says, “The Complaint attempts to connect the BNC to Hamas through the PNF, Compl. ¶¶ 70-85, but none of these allegations relate to any conduct by the U.S. Campaign.” (p. 4) It further notes that because “the BNC is a coalition of organizations, one of which is another coalition representing numerous Palestinian groups, some of which have been designated as FTOs- Plaintiffs seek to hold the US Campaign liable for supporting terrorism.”
• Second, JNF claims USCPR’s support for the Great Return March, a series of demonstrations in support of Palestinian rights under UN Resolution 194 to return to lands they were expelled from in 1948, amounts to support for launch of incendiary devices into Israel and the impact on land owned by JNF and the individual plaintiffs. USCPR’s motion to dismiss states the “the Complaint makes the circular allegation that the US Campaign supported the GRM “as part of its campaign and conspiracy to support the BNC, which in turn supported the GRM, and ‘other acts of international terror’…Based on this, the Complaint leaps to the supported conclusion that the US Campaign ‘materially supports’ acts of trespass, public nuisance and terror.”
• Third. JNF alleges USCPR’s participation in the “Stop the JNF” campaign, which seeks to end “on-going displacement of indigenous Palestinians from their land” amounts to tortious interference with JNF’s right to do business. In response to this, USCPR’s motion to dismiss states that, “Longstanding Supreme Court doctrine makes clear that a claim of tortious interference cannot be based on participation in a lawful campaign of political and social change. Claiborne, 458 US. At 914.”
JNF filed its opposition to the Motion to Dismiss on May 19, 2020. It repeatedly claims, without factual support, that the BNC is comprised of listed Foreign Terrorist Organizations. It makes extensive claims against Hamas and then argues that USCPR should be held liable for Hamas’ actions based on a “chain of liability” theory.
USCPR’s Reply, filed June 9, 2020, argues that JNF has presented suppositions rather than facts and that, “Stripped of conclusory and unfounded assertions, the Opposition would be forced to confront the issue actually before this Court: that the allegation that the US Campaign served as a fiscal sponsor of the BNC and made statements in support of the protesters at the Great Return March are insufficient to state a plausible claim that the US Campaign’s acts were a ‘substantial factor’ – or any factor at all – “in the sequence of events that led to Plaintiffs’ injuries….” [p. 8]
There is no clear guidance on the degree of separation required by U.S. law. However, Treasury’s Office of Foreign Assets Control has established a “50% rule” to determine when an entity is “owned and controlled by” an FTO. In this case, there are two organizations – the BNC and PNIF- between the USCPR and Hamas, and no allegation that Hamas has 50% or more representation in either body.