Wednesday, August 02, 2006

The Devil's Advocate Advocates

Greg at Rhymes With Right tipped me to this story:

The Jordan-based Arab Bank yesterday asked a federal judge in Brooklyn to dismiss a lawsuit brought by thousands of Israelis who claim the bank fueled terrorism by providing payments to the relatives of suicide bombers.

Lawyers for the bank said that the 4,000 foreign citizens who are plaintiffs should not be allowed to have their case heard in the American court system. They argued that terrorism against Israel does not violate any "international norm." Lawyers for the bank said that some 80 countries, most Islamic or African, do not consider Palestinian Arab suicide bombers to be terrorists.

"One man's terrorist is another man's freedom fighter -- that holding is binding on this court," said an attorney for the bank, Kevin Walsh of LeBoeuf, Lamb, Greene and MacRae.

The plaintiffs who are suing Arab Bank in U.S. District Court in Brooklyn are the victims of terrorist attacks during the second intifada and the relatives of victims. While the overwhelming majority are citizens of Israel, some plaintiffs are from Afghanistan, Moldova, and several other countries.

Ugly, unconscionable, but I see the strategy.

Basically, the plaintiffs are using the Alien Tort Claims Act, a statute from 1789 that allows non-citizens to bring actions in U.S. federal courts against those who violate international laws recognized by the U.S. Its purpose was to establish jurisdiction over such cases with the federal courts, to prevent a U.S. state from ruling on a case touching on international relations. Mostly dormant for 200 years, in 1980 the applicability of the statute was expanded to allow victims of human rights violations to bring cases in U.S. courts.

The most recent Alien Torts case defined the issues that the Arab Bank lawyers are responding to. Basically, in Sosa v. Alvarez-Machain, the court ruled that individuals could bring a case under Alein Torts provided the case touched on violations of international law that were recognized in 1789. (Talk about originalism.) That means, the Alien Tort Claims Act applies to "violation of safe conducts, infringement of the rights of ambassadors, and piracy". However, the court also added that claims could be brought in other cases provided the allegation was that the defendant had violated an international law as well established today as the three standard violations mentioned above were in 1789.

So basically, to proceed, the plaintiffs have to show that the terrorism financed by Arab Bank is as much a violation of international law today as piracy was in 1789. To prevent them from going forward, the defendants attorneys are arguing that in the case of Israel, terrorism is not necessarily defined as illegal, and is therefore not the unambiguous violation of international law that Sosa requires.

The defendant's lawyers will trouble making that case, but as awful as the argument is, they have a slight chance of prevailing.

The phrase "international law" is a noun but people use it as an adjective. If I set up a male friend on a blind date with a woman I describe using the adjective "pretty", he'll get a picture of the woman in his head based entirely on how he understands that word. Not dissimilar is the way people throw around the phrase "international law"; it's a noun with a specific meaning, but people use it hoping that others will understand the phrase as an adjective, and interpret it to mean legality in whatever conventional sense they have of that word. But conventional law is not at all like international law.

Conventional law is understood to be a set of rules decided on in a somewhat coherent and structured way, as when Congress passes a law or a court determines what a law or Constitutional principle means. If the law passed becomes understood to be unjust, mechanisms exist to correct or overturn the statute. Unlike conventional law, international law is inherently unstructured and incoherent, and is simply the agreed upon customs of sovereign states. It is backed up only by the brute force of other states, and there is no Court of Appeals. A treaty may codify a custom, or clarify obligations between states, but no treaty is greater that the willingness of sovereign states, whether or not they are signatories, to see the treaty followed. One nation can unilaterally back out of a treaty without repercussion provided other states do not apply brute measures to penalize them. International law is merely the consensus of nations, however ugly that consensus may be.

The Arab Bank's lawyers note that dozens of countries recognize the "right" of Palestinians to blow up Israeli civilians. Their argument hinges on that being sufficient to show the Alien Torts act should not be invoked. In a sense, that kind of consensus is all that is necessary to commence the "veto" process of international law.

The problem for the defendants is that the rhetoric of Islamic states is probably insufficient to show that international law on the matter of terrorism against Israel is ambiguous, the standard under Sosa for a court to reject jurisdiction. In order to counter the defendants claims, the plaintiffs can argue that the suicide bombing in particular is a violation of international law even if war against Israel is not, that Israel's right to exist is recognized by authorities superior to the general consensus of Islamic states, and that the Palestinians, however just their cause, are obliged by international law to use methods other than mass murder to achieve their goals. I think all of those arguments will be persuasive to the courts, though I'm not free at the moment to cite chapter and verse on each one.

Further, there is much ambiguity in Sosa's demand that the law invoked in an Alien Torts case be unambiguous. The "big three" claims cited from 1789 are safe conducts, the rights of ambassadors, and piracy. The last has a well established legal history that itself is somewhat ambiguous. Reading some of those old cases, one could argue "one man's pirate is another man's irregular navy." Yet a claim of piracy is sufficient to bring a case under Alien Torts. I think the claims against the Arab Bank for funding terrorism will proceed quite happily, despite the abominable claims made the Arab Bank's lawyers.

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