• Melissa L. Steinberg

A Tale of Two Non-State Terror Actors

Updated: Oct 2, 2019

Two non-state terrorist actors worked in close proximity to each other in recent years. Both claimed sovereignty over the territory of actual sovereign nations, and over which neither group has ever maintained “sovereignty” in any accepted legal or practical sense. While both maintained minimal governance, administration, and infrastructure in the territories they claimed, neither qualified as a “state” under any accepted definition.[1] Both committed acts of “international terrorism” in furtherance of the sovereignty that eludes them, including the indoctrination and recruitment of children for martyrdom operations in flagrant violation of international law. Both financed their terrorist acts through criminal enterprises and state sponsorship. Both openly espoused genocide to achieve their goals, and both intentionally wounded and killed scores of innocent civilians as a result.

For the actor emerging more recently, former President Barack Obama emphasized the need for “strategies to counter violent extremism that radicalizes recruits and mobilizes people, especially young people, to engage in terrorism.” The UN has forcefully condemned its tactics while supporting its victims:

As for the more established non-state actor, there was surprisingly little international condemnation of its goals or tactics. Although it also engaged in “violent extremism that radicalized recruits and mobilized people, especially young people, to engage in terrorism,” former President Barack Obama repeatedly expressed his sympathy for its cause, if not solidarity with its tactics. The UN condones its tactics, while consistently vilifying its victims:

The United States is just one of many countries to support this pseudo-regime through “humanitarian aid.”

The fact remains that America will never hold Palestinian terrorists accountable for statutorily proscribed violence against American citizens and interests unless and until America holds itself accountable for fostering a political environment in which double-standards and policy based on anti-Semitic tropes are allowed to flourish. The mere fact that our judicial system is so susceptible to interference strikes at the essence of our carefully cultivated, dynamic, relatively predictable legal system built upon the cornerstones of stare decisis and rule of law. This system works only if the judiciary, setting aside all prejudices and externalities, interprets laws faithfully, in accordance with well settled principles of legal doctrine and justice. Once that process is corrupted, it is impossible to have faith in our adversarial system, and our constitutional system of checks and balances promulgated to protect and empower an independent judiciary.

The implications for the American, predominantly Jewish, victims of Palestinian terror are multiple and manifest. However, as should be obvious from the side-by-side comparison to ISIS, there are even greater implications if America’s judges, politicians, and populace cannot subordinate their personal biases to combating a new reality in which quasi-state actors reign supreme in the realm of international terrorism. The scourge of quasi-state perpetration of terror against American citizens and interests will not likely disappear in the near future; nevertheless, after Sokolow, Americans’ ability to deter terrorist quasi-regimes and obtain meaningful compensation for their injuries may have disappeared, absent good faith efforts by the three coordinate branches of the U.S. government, and their constituent citizens.

With the Anti-Terrorism Act effectively castrated (at least for using civil litigation in American courts to combat terrorist acts committed by non-state actors), it is up to us to find new ways to fashion remedies, whether through creative interpretations of existing law, or successful passage of new laws that will allow American victims of Palestinian terror meaningful days in court. We cannot continue to live and practice under a regime that not only allows, but incentivizes, atrocities against its own people.

Of the 9 fatalities in the July 31, 2002 bombing of a cafeteria at Hebrew University in Jerusalem, 5 were American. In the next post, I will unpack how that was not a coincidence - and how we should expect this targeted killing to continue if we do not find ways to use our legal processes to prevent the wanton slaughter of innocent Americans abroad.

[1] See Applicability of the Obligation to Arbitrate Under Section 21 of the United Nations Headquarters Agreement of 26 June 1947, Advisory Opinion, 1988 I.C.J. Rep. 12 (Apr. 26) (“While Palestinian statehood has clearly not been accepted by the international community, the Palestinian Authority can be regarded as possessing some form of limited international personality. Such personality, however, derives from the agreements between Israel and the [Palestinian Liberation Organization] and exists separately from the personality of the [Palestinian Liberation Organization] as [a 'national liberation movement,'] which relies upon the recognition of third parties.”)

[2] Yonah Alexander & Dean Alexander, The Islamic State: Combating the Caliphate Without Borders, Preface at xvi (2015).

[3] Id. at xviii.

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