Plaintiffs brought an action against the US Campaign for Palestinian Rights under the Anti-Terrorism Act 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 was granted in March 2021.
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 made claims under the Anti-Terrorism Act for damages caused by incendiary devices launched into Israel from Gaza by unnamed persons. JNF argued that USCPR was 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 did not alleged facts to support their conclusions, that USCPR’s activities are lawful, that plaintiffs relied on guilt by association and did not allege facts that would “bridge the gap between these lawful, peaceful and protected acts and the damage caused…” USCPR’s motion to dismiss was granted by the United States District Court for the District of Columbia on March 29, 2021. The court said the plaintiff’s arguments “are, to say the least, not persuasive.” JNF asked the court to reconsider, and after the court denied that request appealed the case to the U.S. Circuit Court for the District of Columbia, where the case is pending.
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 (direct liability) or “any person who aids and abets, by knowingly providing substantial assistance, or conspires with the person who committed such act of terrorism” (indirect liability).
JNF’s suit was based on three allegations against USCPR:
- First, JNF alleged that, by acting as the U.S. fiscal agent for the BNC, the USCPR supported 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 said, “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 noted 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 claimed 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, amounted 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 stated 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 unsupported conclusion that the US Campaign ‘materially supports’ acts of trespass, public nuisance and terror.”
- Third. JNF alleged 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 stated 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.”
District (Trial) Court Proceedings
JNF filed its opposition to the Motion to Dismiss on May 19, 2020. It repeatedly claimed, 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, argued that JNF had 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)
The court’s opinion dismissing the case rejected plaintiffs’ arguments, stating that “Plaintiffs’ conclusory assertions that the US Campaign directly financed or supported Hamas, lacking in any specific factual basis, cannot save plaintiffs’ direct liability claims” (p. 7), and that “plaintiffs have failed to state claim for aiding-and-abetting liability under the ATA.” (p. 11)
The court explained that plaintiffs’ claims “do not plausibly allege that defendants cause their injuries.” (p, 4) The plaintiffs did not allege facts to show USPCR’s financial support to the BNC Committee, Great Return March and Stop the JNF Campaign was a “substantial factor in the sequence of events that led to their injuries” or that the injuries were “reasonably foreseeable or anticipated as a natural consequence.” (p. 5) It noted that the presence of an intermediary (here the BNC Committee) attenuates the chain of causation. Since plaintiffs did not allege USCPR gave direct support Hamas. The court found that USCPR’s “support of the BNC and other groups are simply too removed from a terrorist act or organization to state a claim under the ATA.” (p, 6) The court also found that JNF failed to meet the six-factor test to establish liability for aiding and abetting. The plaintiffs’ state claims were also dismissed.
Court of Appeals Proceedings
JNF’s appeal brief, filed on Jan. 24, 2022, argued that its factual allegations are sufficient to meet the legal test for the case to proceed as to both direct and indirect (aiding and abetting) liability. JNF notes that case law requires the Court of Appeals to treat its allegations a true and give it the benefit of all inferences in deciding whether its complaint is adequate.
It then argues that its claim for direct liability is adequate because the BNC is controlled by Hamas, basing this on the broad allegation that “there is little to noting that happens on Gaza that Hamas does not know about approve and support,” including launch of incendiary kites and balloons during the Great Return March.
In its response brief, filed March 1, 2022, USCPR points out that “Plaintiffs Complaint is replete with suggestions of guilt by association. No allegations link the US Campaign to burning kites and balloons or rockets…”) It then points out that JNF’s allegations “boil down to three actions it took as part of its advocacy for Palestinian rights. These are 1) serving as the U.S, fiscal sponsor for the BNC, 2) posting social media comments about the Great Return March and urging supporters to contact Congressional representatives and 3) participating in the Stop the JNF Campaign. USCPR points out that there are no allegations its funds went to Hamas or that it had ties to any group other than the BNC. The remaining activities alleged all involve speech protected by the First Amendment.
On the issue of indirect liability, JNF relied on the appeal court’s 2022 decision in Athchley v. AstraZenica UK Limited in which it set out three elements and six factors needed to establish indirect liability. It argues that USCPR meets the criteria for each one without citing specific facts outside of USCPR’s role as fiscal sponsor for the BNC or its general advocacy in support of the Great Return March.
USCPR’s response brief provides a detailed analysis of JNF’s failure to allege adequate facts to support its claims, concluding that “Atchley did not, of course, exempt Anti-Terrorism Act claims from the requirement that pleadings must rely on factual allegations, not conclusory statements. See Atchley, 22 F.4th at 220-21).”
JNF filed its final appellant brief on April 26, 2022, and USCPR filed its final appellee brief on April 29, 2022. Oral arguments are pending.
Last updated: May 11, 2022