Tuesday, November 29, 2005

Case of the Month: Doe v. Israel

My vote for the most important international law case in November is Doe v. Israel, ___ F.Supp.2d ___ (D.D.C. Nov. 10, 2005), available here. The case arises out of claims by Palestinians living in Israel or the West Bank against public and private Israeli defendants, including Ariel Sharon, Shimon Peres, the State of Israel, Israeli government instrumentalities, and various private defendants, including Israeli West Bank settlers.
The case has virtually everything. The claims range from the exotic (genocide) to the mundane (trespass), with over a dozen others thrown in for good measure. You get the impression the plaintiffs opened the human rights playbook and threw everything they could possibly think of at the defendants. According to the opinion, "The complaint exceeds 140 pages and includes nearly 600 paragraphs, broadly alleging that plaintiffs, or their loved ones, have been personally and financially injured by the actions of the Israeli defendants-and those acting under their command or policies-regarding settlement activities in the West Bank." The defendants responded in kind and raised the ramparts high, including every obstacle they colorably could propose.
Most important, the case offers a primer on many, if not most, of the issues typically addressed in an international litigation class: ATS, TVPA, RICO, jus cogens, the political question doctrine, the act of state doctrine, head of state immunity, sovereign immunity, FSIA exceptions, the Hague Service Convention, jurisdictional discovery, personal jurisdiction over private defendants, and the extraterritorial application of substantive laws. If you wanted a good introduction to the salient issues in human rights litigation, Doe v. Israel is not a bad place to start.
What is most interesting about the case is that it illustrates just how difficult it is to clear the many hurdles that stand in the way of most human rights cases. As Doe v. Israel underscores, there are a host of procedural and substantive doctrines that have been established to restrain judicial interference with foreign affairs. Each doctrine has its place, but the combined effect is to make it exceedingly rare for a human rights case to run the gauntlet and secure success in the end. This is as it should be, for these doctrines were designed to ensure that only a special and narrow category of international human rights cases will survive scrutiny. Any other approach would risk having a wide range of international disputes resolved in U.S. courts. It would be, for example, a strange development indeed if a large portion of the Palestinians' grievances against Israel were resolved in a federal courthouse in Washington D.C.

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