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Shireen Abu Akleh killing: The legal mechanisms available for justice

As investigations continue into the killing of the Palestinian-American journalist, MEE looks at all the avenues available in the pursuit of accountability
Journalists carry posters of Palestinian journalist Shireen Abu Akleh as they gather to condemn her death in front of Israel consulate in Istanbul on 12 May 2022.
Journalists carry posters of Palestinian journalist Shireen Abu Akleh as they gather to condemn her death in front of Israel's consulate in Istanbul, on 12 May 2022 (AFP)
By in
Washington

The killing of Palestinians at the hands of Israeli authorities is continuously glossed over in western media as collateral damage in a battle between Israeli forces and Palestinian combatants.

But while many deaths of innocents are overlooked, some come with increased diplomatic and legal pressure for the US and other western countries that are close allies to Israel.

In the case of Shireen Abu Akleh's killing at the hands of Israeli forces, her status as a journalist and a US citizen opens pathways for potential punitive measures for those responsible, and also gives her family and loved ones a number of mechanisms to pursue justice on a global stage.

'The US government ... should be taking the lead on actually conducting an investigation and not relying on the Israelis'

- Adam Shapiro, Democracy for the Arab World Now

Both within the US and on the international level, legal experts and rights advocates say there are multiple ways to seek accountability over the killing, and a number of precedents that pave the way for investigations and civil litigations.

Abu Akleh, a veteran journalist of more than 25 years at Al Jazeera, was shot and killed on Wednesday morning during an Israeli raid in the Palestinian village of Jenin. While Israeli authorities have launched an investigation into the matter, they have already walked back their initial claim that it was a Palestinian gunman who shot her.

Multiple eyewitnesses, including Middle East Eye contributor Shatha Hanaysa, assert that Abu Akleh came under Israeli sniper fire.

The Israeli investigation is still in its infancy, but an initial probe stated she was killed about 300 feet from Israeli forces and that the Israeli army's elite Duvdevan Unit did fire several rounds in the direction of where Abu Akleh and other journalists were positioned.

Israel has said it will cooperate with Palestinian authorities, as well as Qatar - Abu Akleh's employer Al Jazeera is a Qatari state-affiliated news agency.

Still, rights advocates have issued concerns over Israel's investigation into the killing, noting that previous investigations have led nowhere, including a recent probe into the death of Omar Asad, an 80-year-old Palestinian with US citizenship who died under Israeli custody earlier this year.

"It's clear that based on the documented track record of the Israeli military and government that they have a pattern of not investigating cases in which their forces are involved in the killing of civilians, journalists, and then on top of that, American citizens and other foreign nationals," said Adam Shapiro, advocacy director for Israel-Palestine at Democracy for the Arab World Now.

"The US government, which has a stake in this case, because Shireen was an American citizen, should be taking the lead on actually conducting an investigation and not relying on the Israelis to investigate."

Shapiro noted there is a precedent to show the US can take a lead in investigating Abu Akleh's death, citing the case of Daniel Pearl, an American journalist who was kidnapped and killed in Pakistan in 2002. The US sent FBI agents to investigate the matter alongside cooperative Pakistani officials.

"So in this case with the Israelis - there were previous cases with the Israelis - we can assume that the Israelis would be a little bit hostile, and we know they're not always interested in investigating these claims," Shapiro said.

"So there's even more of a reason why the US should be assisting in a case like this."

'A matter of effectiveness'

The United Nations and the International Criminal Court (ICC)  could also play a role in the investigation. Both the ICC and the UN High Commissioner for Human Rights have launched probes into Israeli war crimes, the latter of which will present its first findings next month.

"This is an avenue that already exists. It was mandated a year ago. Just next month, we're going to see the first reaction," said Sherif Mansour, Middle East and North Africa programme coordinator at the Committee to Protect Journalists, referring to the UN's investigation.

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"And I think this is a case where the timing of [the killing] should be informing the findings and recommendations of the report that will come out in June," he told MEE.

UN officials have already called for an independent probe into the matter. Mansour said this is because Israel has continued to show its ineffectiveness at dealing with the killing of journalists.

"It's not just a matter of jurisdiction. It's a matter of effectiveness. We at the committee documented last year a journalist who was killed in an Israeli bombing in his home, and they're still investigating whether that was direct targeting or not," he said.

"There are at least 18 journalists that we've counted since 1992 who have been killed by the Israeli or Palestinian sides, and none of those cases have seen any accountability against the perpetrators.

"This is why a UN investigation and this is why the Human Rights Council have moved. They don't usually move until all the local and regional accountability mechanisms have been exhausted."

Laws and sanctions

Despite the pessimism towards an Israeli probe, there are several ways in which lawmakers in the US and Europe could punish those directly involved in the killing.

In the US, the Global Magnitsky Act could be invoked to impose sanctions on the individuals or group that is responsible for shooting the Palestinian journalist. Since being signed into law in 2016, the act has been used by the US government to impose sanctions on individuals in China, Guatemala, Cuba, Bulgaria, and others in several countries.

"The Magnitsky Act would also be able to impose sanctions then on those individuals who were the unit of the military that's been involved," Shapiro said.

The European Union also has its own version of this law, the European Magnitsky Act, and could use it to similarly sanction the individuals involved in the shooting of Abu Akleh.

There is also the Leahy Law, a US law named after Senator Patrick Leahy, which could be invoked to bar the US government from providing military assistance to foreign security forces responsible for gross human rights violations, including extrajudicial killings.

While Shapiro said that it is unlikely that either act would be used against Israel given its status as a close US ally, the killing of Abu Akleh fits within the parameters of the laws.

However, "Unfortunately, both the Magnitsky Act and the Leahy Law don't really have much to do with accountability in terms of the actual killing itself, from the perspective of who the individual perpetrator was," he added.

Take it to US courts

For Abu Akleh's family, her US nationality also affords them a number of opportunities to seek redress in American courts - options not available to foreign nationals.

"Every killing is tragic, obviously, especially unlawful killings of civilians, but there are different options available in US courts when it is a US national who was killed," Gissou Nia, a human rights lawyer and director of the Strategic Litigation Project at the Atlantic Council, told MEE.

'Every killing is tragic ... but there are different options available in US courts when it is a US national who was killed'

- Gissou Nia, human rights lawyer

One of those options is through the war crimes statute within Title 18 of the US criminal code, which allows for the Department of Justice to bring charges against the perpetrators of war crimes.

"The key thing about the war crime statute is that it allows for what's called nationality jurisdiction, meaning either the alleged perpetrator is a US national or the victim is a US national," Nia said.

"That's an option that's available. We saw this being discussed with respect to American journalists who have been recently killed or injured in Ukraine by Russian forces."

Another option that could be used is the Torture Victim Prevention Act of 1991, which allows US citizens and non-US citizens to file civil lawsuits in alleged cases of torture or extrajudicial killings committed in foreign countries.

This act has been cited in several lawsuits over the past several years, including when Egyptian-American activist Mohamed Soltan sued former Egyptian Prime Minister Hazem el-Beblawi for allegedly being responsible for his torture in an Egyptian prison.

A number of civilian families have also used the act to file lawsuits against Libyan military commander Khalifa Haftar for allegedly being responsible for both the torture and extrajudicial killings of their family members during the country's civil war.

Soltan's case was thrown out after the US government intervened, while the litigation in Haftar's case is still ongoing.

In Abu Akleh's case, Nia said that her death would likely fall under the category of extrajudicial killing, making a legal case through this act a viable option for her family.

Legal precedents

If Abu Akleh's family were to take this case to court, it would not be the first time that the killing of a US journalist would be deliberated over in the American legal system.

Marie Colvin, an American journalist and war correspondent for the Sunday Times, was killed in a rocket attack on a makeshift media centre in the rebel-held city of Homs in February 2012.

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Her family lodged a claim against the Syrian government in a court in Washington citing the terrorism exception to the Foreign Sovereign Immunities Act, which says that a foreign country on the US state sponsor of terror list can be sued over the extrajudicial killing of a US national.

In 2019, the court ruled that the Syrian government had to pay $300m in damages to Colvin's family.

Jamal Khashoggi, a US resident and Saudi columnist for Middle East Eye and The Washington Post, was killed in 2018 at the Saudi consulate in Istanbul in a murder that US intelligence assessed Saudi Crown Prince Mohammed bin Salman was responsible for.

A court case in Turkey was thrown out earlier this year, but one lawsuit against the Saudi government over Khashoggi's killing remains in a US court in Washington, although it has yet to rule on whether the US has jurisdiction over the case.

Still, Nia noted that whenever it comes to crimes committed abroad, "there's inevitably a foreign policy component" that gets in the way of seeking accountability.

"Sometimes, as you saw in the case of Mohamed Soltan, that can affect what moves forward very differently from when we're dealing with purely domestic criminal prosecutions and civil suits."