Ending a saga dating back to the end of the Second Intifada in 2004, a US jury on Monday handed down a historic verdict against the Palestinian Authority for involvement in six terror attacks from that time period, charging them with $654 million in damages.
The wrongful death civil damages trial could have massive diplomatic and financial implications for the PA, as it teeters, according to some dangerously, near collapse and as it tries to rally international support for its push for the International Criminal Court to prosecute Israeli soldiers and officials for alleged war crimes related to the summer Gaza war.
Closing statements in the case were delivered on Thursday before the US federal New York court and jury.
PA lawyer Mark Rochon rose first, and after presenting a sometimes understated trial persona, stood tall with some dramatic flair to defend his client from a possibly multibillion-dollar judgment and vast negative diplomatic implications.
Rochon, in a soft voice at times sounding weak and quivering, said, “I fear,” that this jury will find his client liable “because of who they are, not what they did or did not do."
The plaintiffs', represented by Shurat Hadin – Israel Law Center and Kent Yalowitz of Arnold & Porter, central points are that a large volume of PA employees, including numerous policemen and commanders, have been arrested and convicted by Israel as having organized, planned and perpetrated suicide bombings and shootings against Americans in Israel, including the six attacks from 2001-2004 in the case during the Second Intifada. In those attacks, 33 were killed.
“So much sadness. So much sadness and death,” Rochon began. “All those souls extinguished.”
But “we’re not here to decide the Second Intifada,” to issue a judgment on that sadness, death, or the occupation, Rochon said, explaining that if the jury just focused on the six incidents at issue in the case, “the PA and the PLO are not liable.”
“Sometimes people who do terrible things work for the government.” But these are “things they did for their own reasons.”
A verdict against the defendants “would only damage the government and the PLO who do not deserve that.”
After his opening emotional appeal, Rochon slowly grew in indignation, doing his best to disconnect the dots that the plaintiffs had drawn together in their case.
Rochon attacked the credibility of the plaintiffs’ expert witnesses: "The only people you can bring in are IDF intelligence officials who served during that time?" Rochon encouraged the jury to decide for themselves whether such witnesses were "Objective? Uninterested? Or biased?"
"Who you gonna believe?" he said, adding “the IDF or a report from the USA that explicitly states: There is no conclusive evidence that the senior leadership of the PA or PLO were involved in planning or approving specific acts of violence."
Rochon was referring to a US State Department report known as PLOCCA from the Second Intafada period which covered to what extent the PA was complying with obligations to Israel and the US under various agreements.
Many statements in the periodic reports defended the PA from accusations of involvement in terror, but others did not, and those that did were sometimes hotly debated at the time.
The plaintiffs "want you to infer that from the absence of evidence. And that's not how it works," Rochon said.
Noting the specific case of Abdel Karim Aweis, Rochon showed a document where Aweis said he was hiding information from a PA intelligence officer, something that showed the PA wasn't collaborating with his attack. "This is crazy town, ladies and gentlemen."
As his remarks drew to a close, Rochon's voice grew small and pleading once again. Leaving reporters cupping their hands to their ears to hear what he was saying. "What they did was despicable, selfish," Rochon said. "But it was not the PA."
But Rochon's spirited defense was not enough against the legal and emotional onslaught brought by plaintiffs.
Yalowitz rose to respond and burst forth with righteous indignation, declaring that the PA “didn’t have to pay terrorists if it didn’t want to.”
"This case is about 10 American families who were going about their daily lives," Yalowitz said, as he went on to describe how those families were victims of terror attacks and as family members each stood up in turn in the gallery.
He referred to the Anti-Terrorism Act which was the basis of the civil damages case as created to hit “those who send terrorists where it hurts most - the wallet."
Regarding the burden of proving the PA’s liability which the plaintiffs needed to carry to win, he said, "if the scale tips even a little bit," Yalowitz explained. "I will have carried my burden."
Yalowitz also addressed the PA claim that it and the PLO were separate entities who could not be held liable for each other’s actions.
"If you're a beat cop walking the streets" Yalowitz said, "You fairly represent the NYPD."
"If an NYPD cop" commits a murder in New Jersey and you say "'Good job. And we're going to keep you on payroll while you're in jail' that says something."
"You don't have to be senior to represent the entity."
Yalowitz continued, "If you have a policy that says: If you commit a terrorist act, you keep your job," get a promotion, and get paid while you're in jail, "that says something about who you are and what you believe in."
Regarding whether the PA’s alleged support for the six terror attacks met the legal definition of “material support,” Yalowitz said "the biggest support you can give is money and personnel and these guys gave both."
Shurat Hadin Director Nitsana Darshan-Leitner said, ”As both sides have rested and the case is handed over to the jury, the terror victim families are optimistic that the defendants will be found guilty of the violent attacks that they perpetrated during the Second Intifada and which have devastated their lives.”
Darshan-Leitner added, “While the plaintiffs presented numerous expert witnesses and a myriad of documentary evidence, the PLO and Palestinian Authority barely made an effort to rebut the allegations against them.”