Why the Palestinian Authority is Not a State (Says a U.S. Court)

Is the Palestinian Authority a sovereign state? When Palestinians bomb an Israeli bus, is that an act of war? Or is it an act of international terrorism? The U.S. District Court in D.C. has issued an opinion partially answering these weighty questions in a lawsuit brought by a U.S. victim of a bus bombing in Israel against the Palestinian Authority. The lawsuit is brought under the Anti Terrorism Act, which allows U.S. nationals to sue for injuries suffered from terrorist attacks. (It is worth noting that unlike the more famous Alien Tort Statute lawsuits, these terrorism lawsuits are specifically authorized by Congress.)

The court held that the Palestinian Authority is not a sovereign state for purposes of the U.S. Foreign Sovereign Immunities Act. This is a tricky point because, undoubtedly, the PA does exhibit some qualities of a state. Ultimately, the Court held the PA collaterally estopped from raising this defense, but I’m not so sure this can’t come back on appeal.

The court also held that an attack on a civilian bus is not an “act of war” nor did it take place “in the course of” an armed conflict for purposes of the lawsuit. This is also a tricky proposition. While attacking a civilian bus seems clearly not an “act of war”, it is arguable that the attack occurred “in the course of” armed conflict between Israel and the PA.

This lawsuit, and six others with identical facts, will most likely go forward. Whether these lawsuits are helpful in ultimately resolving the Israel-PA conflict is less likely, especially when a U.S. court has to rule on questions such as Palestine’s statehood and the legality of its attacks under international law. But the victims have an undoubtedly powerful claim here and it is hard to say no to them, especially when the statutes plainly authorize these kinds of lawsuits.