An unlikely nemesis: maverick lawyer sues Israel supporters over human rights

Maybe it figures that the people who successfully sold otherwise-intelligent Americans on the notion that their army (the Israeli Defense Force) was “the most moral army in history” could in the end be brought down by a maverick lawyer such as Martin McMahon. McMahon is an iconoclastic character you might meet in the pages of Tom Wolfe’s catastrophic comedy, “The Bonfire of the Vanities.” Although very old to play the role, he is the boy who piped up to say — albeit in Martin’s case in legalese acceptable to federal judges — “but the Emperor has no clothes!”…

Specifically, he just sued Benjamin Netanyahu, Miriam Adelson, AIPAC (and assorted AIPAC operatives), David Friedman, Jared Kushner, Jason Greenblatt, Donald Trump, Mike Huckabee, Rudy Giuliani, Andrew Cuomo, Newt Gingrich, Mitch McConnell and a few other adherents of Zionism in the U.S. District Court for the District of Columbia, alleging they are “war criminals” or aiders and abettors of war criminals.

Before you note that it’s easy to file a piece of paper in court, you need to know a couple more things:

First, the complaint in Dawabsheh v. Netanyahu is 175 pieces of paper. They carefully describe a very long “pattern and practice” of violence and theft against Palestinians and specify a century’s worth of International Law defining such acts as war crimes and crimes against humanity. The lead plaintiff among a baker’s dozen of Palestinians and Americans is the personal representative of the three Dawabsheh family members, 18-month-old Ali Sa’ad and his mom and dad, killed in July 2015, when Israeli settlers firebombed their home in a village in the northern West Bank.

Moreover, McMahon won a unanimous ruling last year in the U.S. Court of Appeals for the DC Circuit upholding the viability of a similar complaint he filed in 2017. In fact, the trial court in that case (the same court as for the new case) will hold a hearing April 21 in Al Tamimi v. Adelson to schedule the trial process. That case (against Sheldon Adelson et al.) seeks $1 billion in damages from a Who’s Who of 40 wealthy and influential “charitable” benefactors of Israel for war crimes, including genocide, extra-territorial killings and ethnic cleansing allegedly intended to rid the Occupied Palestinian Territories of its Palestinian inhabitants.

The new complaint against Netanyahu et al. also invokes the Alien Tort Statute 18 U.S.C. § 1350 (ATS), as well as the Torture Victim Protection Act 28 U.S.C. § 1350 (TVPA). It alleges the defendants “have aided and abetted the commission of numerous war crimes and crimes against humanity i.e. the denationalization and dehumanization of the Palestinian people and aiding and abetting the establishment of an apartheid regime in the OPT [Occupied Palestinian Territories].” Many of the alleged crimes were perpetrated by “belligerent settlers” said to be financed by the defendants and protected by “rogue Israeli soldiers” at the behest of Israel’s political leaders, the complaint says.

Why another case, when the first one is still unfolding? “The new case broadens the challenge,” McMahon told Mondoweiss. “We’re going beyond mere financial contributors to the ethnic cleansing settlement project, which injured the plaintiffs by stealing their property. This case zeroes in on the war crime of denationalization. It holds accountable masterminds like Netanyahu, AIPAC, Kushner and key Israel supporters like Giuliani, Gingrich and Huckabee, who knowingly gave material support to crimes against the Palestinians.”

Among the many claims detailed in the complaint, McMahon includes the charge of installing an Apartheid regime in the OPT, drawing on the groundbreaking opinion of federal judge Shira Scheindlin in a case relating to South African Apartheid that denationalization and dehumanization are war crimes and non-state actors can abet those crimes. Regarding Netanyahu personally, the lawsuit seeks declaratory relief, namely, an order declaring that he is a war criminal. A deeply ironic touch is that McMahon cites a Jerusalem court’s ruling in 1961 granting Israeli prosecutors jurisdiction over Nazi war criminal Adolph Eichmann, though his crimes were in eastern Europe and he was abducted from Argentina.

Defendants Kushner, Friedman, Greenblatt and Trump are the target of the complaint’s fourth cause of action based on their part in promoting the so-called “Deal of the Century” peace plan for Israel-Palestine. The complaint charges that the plan seeks to legitimize the theft of thousands of square miles of Palestinian property, extinguishing “any and all property claims” belonging to the Palestinian and Palestinian-American plaintiffs, and implicitly abolishing Palestinians’ right under international law to return to places from which they fled during episodes of Israeli ethnic cleansing. The court is asked for an order to stop the land transfer component of the “peace plan” and refer the issue to the UN General Assembly, as well as referring to that body “the issue as to whether Israel owes the state of Palestine the sum of $50 billion for the intentional destruction of the OPT.”

In all, the sprawling new complaint covers a vast swath of the bloody history of Israeli aggression against the Palestinians, always focusing the stories down into legal causes of action against the specific named defendants. It’s quite a read.

“A big reason we won the earlier decision in the D.C. Circuit,” McMahon said, “was that the judges saw that we had a lot of facts. So, why not let us prove them in court?”

The 2017 case has dozens of plaintiffs, including activists in the village of Nabi Saleh: Bassem Tamimi, his daughter Ahed, and on behalf of the late Mustafa Tamimi, who was killed by Israeli occupying soldiers in 2011. The hearing next month will set a trial date, but discovery in the case is likely to be a lengthy process.

How worried should the defendants be? It seems incredible that McMahon’s lawsuits could really succeed in getting a verdict. If they did, there’s no telling what impact they would have on Israel’s standing in the world. But the sudden emergence of a magic bullet from such an unlikely nemesis is scarcely more incredible than the fact that the State of Israel has been committing the deeds McMahon alleges for decades in plain sight of the “community of nations” and with the emphatic blessing and support of the “leader of the Free World,” aka, the United States.

In any event, the cases still have a long way to go. So far, despite the D.C. Circuit’s 2019 vindication of the Al-Tamimi complaint, the defendants have not even endured the substantial negative publicity one might have anticipated. What if the boy in the story piped up about the Emperor’s nakedness but nobody listened? Even as social media has exposed Israel’s brutality as never before, most people have learned not to see that and not to hear the daily din of protest. What’s different about Little Boy Martin, however, is that he is being heard in federal court. Until his voice in that venue is eliminated, the many powerful defendants perhaps should not sleep at night in their accustomed serenity.

Copyright Steve France, March 2020

Correction: This post originally listed the late Mario Cuomo, not his son Andrew, as a defendant in McMahon’s latest suit.