Ali Mahmud Ali Shafi et al. v. Palestinian Authority and Palestinian Liberation Organization

Court	United States Court of Appeals for the District of Columbia Circuit, United States
Case number	10-7024
Decision title	Appeal from the United States District Court for the District of Columbia
Decision date	14 June 2011
Parties	Ali Mahmud Ali Shafi Shirin Ali Shafi Lamia Ali Shafi Palestinian Authority Palestinian Liberation Organization
Categories	Torture
Keywords	Alien Tort Statute; armed conflict; Common Article 3 of the Geneva Conventions; Palestinian territories; torture
Links	Appeal from the United States District Court for the District of Columbia
Other countries involved	Palestine

Summary

Ali Mahmud Ali Shafi is a Palestinian national who was spying for Israel until he moved to Israel in 1994. On his return to Palestine in 2001, he was arrested by Palestinian Authority (PA) security officers and subsequently brought to a PA security building where he was detained for several months. During that period, he was severely beaten, left without any clothes, and was not permitted to take a bath. In 2002, Ali Shafi was forced to sign a confession which was used as the basis for his conviction of killing the Palestinian leader Raed al Karmi and for spying for Israel. He was sentenced to death. However, in March 2002, Ali Shafi escaped.

In 2009, Ali Shafi brought a claim in the District Court for the District of Columbia against the PA and the Palestinian Liberation Organization. The District Court dismissed the complaint. On 14 June 2011, the Court of Appeals for the District of Columbia Circuit confirmed the decision because claims can only be brought under the Alien Tort Statute (ATS) against state actors. The defendants in this case were no state actors and therefore appellants failed to state a claim within the jurisdiction conferred by the ATS.

Procedural history

On 27 April 2006, Ali Mahmud Ali Shafi and his wife, Shirin Ali Shafi, filed a complaint before the District Court for the District of Columbia against the Palestinian Liberation Organization (PLO) and the Palestinian Authority (PA). They claimed that the defendants are responsible for the torture and ‘physical and mental abuse’ of Mr. Ali Shafi, and requested damages on the basis of the Alien Tort Statute (ATS).

On 23 February 2010, the District Court for the District of Columbia dismissed the case for failure to state a claim within the jurisdiction conferred by the ATS.

On 9 March 2010, appellants filed a Notice of Appeal.

Legally relevant facts

The case concerned the alleged torture in the West Bank by both the PLO and the PA of a Palestinian national who was spying for Israel.

The appellants argued that the torture was committed during an armed conflict, which was of a non-international character, and that it therefore breached peremptory rules of armed conflict reflected in Common Article 3 of the Geneva Conventions was applicable (p 12).

Furthermore, with regard to the requirement that in principle only acts of torture committed by state actors are actionable under the ATS, the appellants claimed that non-state actors can nonetheless be public officials and could therefore be considered state actors (p. 13).

Core legal questions

Does the ATS provide that a district court has jurisdiction over a civil action by an alien for torture committed by non-state actors? (p. 5)

Did the District Court abuse its discretion by declining to hear a negligence claim brought on the basis of foreign law after the federal claim has been dismissed? (p. 16)

Specific legal rules and provisions

Alien Tort Claims Act of 1789 (Title 28 U.S. Code, Chapter 85, Section 1350)
United States Code, 2011 (Title 28, Chapter 85, Section 1367 on Supplemental jurisdiction)

Court's holding and analysis

On 14 June 2011, the Court of Appeals for the District of Columbia Circuit held that torture by non-state actors was not actionable under the ATS.

The appellants’ argument that the alleged torture violated international norms because it occurred during an armed conflict, was rejected by the Court of Appeals. The Court held that it could not be determined that the alleged torture indeed occurred in the context of an armed conflict which was required for Common Article 3 of the Geneva Conventions to be applicable (pp. 12-13).

As regards appellants’ argument that non-state actors can be public officials, the Court held that it was not tenable because it would otherwise ‘open the doors of the federal courts to claims against nonstate actors anywhere in the world alleged to have cruelly treated any alien’ (p. 11). However, the Court noted that some claims against non-state actors are recognised by the ATS, such as piracy and infringement of the rights of ambassadors, or even genocide (pp. 14-15).

The Court of Appeals also upheld an earlier decision by the District Court which dismissed the appellants’ negligence claim brought under Israeli Law on behalf of their minor daughter. The Court noted the District Court was correct in declining to hear the negligence claim as it arose from events that had taken place in Israel and the claim was made under Israeli law (p. 16).

Further analysis

K. S. Bhatia, ‘Reconsidering the Purely Jurisdictional View of the Alien Tort Statute’, Emory International Law Review, Vol. 27, April 2013, pp. 448-508.

W. Pearlman, Violence, Nonviolence, and the Palestinian National Movement, Cambridge: Cambridge University Press 2011.

J. J. Paust, ‘The Reality of Private Rights, Duties, and Participation in the International Legal Process’, Michigan Journal of International Law, 2004, Vol. 25, pp. 1229 - 1249.

S. T. Morison, ‘Article: Accepting Sosa's Invitation: Did Congress Expand The Subject Matter Jurisdiction Of The Alien Tort Statute In The Military Commissions Act?’, Georgetown Journal of International Law, 2012, Vol. 43(4), pp. 1097- 1174.

Instruments cited

Alien Tort Claims Act of 1789, United States

Torture Victim Protection Act of 1991, United States

Related cases

Sosa v. Humberto Alvarez-Machain, 542 U.S. 692 (2004)

Filartiga v. Peña-Irala, 630 F.2d 876 (1980)

Social media links

‘Tortured for helping Israel’, The Augean Stables, 1 May 2006.

J. Gerstein, ‘U.S. judge: can't sue Palestinian Auth. over torture’, Politico, 25 February 2010.

‘US judge throws out suit against Palestinian Authority over torture’, Security Law Brief, 26 February 2010.

J. H. Adler, ‘Debating Sosa in Ali Shafi v. Palestinian Authority’, The Volokh Conspiracy, 14 June 2011.

R. Alford, ‘Torture by Non-State Actors Not Actionable Under ATS’, Opinio Juris, 17 June 2011.

J. Bellinger, ‘New Decision on Alien Tort Statute and Non-State Actors’, Lawfare, 17 June 2011.

‘The Alien Tort Statute, the Blackstone Three, and the Historical Basis of Judge Williams’ Concurrence In Shafi v. Palestinian Authority’, The View From LL2, 19 June 2011.