On Sunday, November 7, Israeli authorities responded to an illegally constructed mosque in Rahat. Or, as most media outlets prefer to tell the story, “Israeli police raze[d] mosque amid protests” (CNN headline). Muslim objectors threw rocks. Israeli police responded with rubber bullets.
The human story is fraught with emotion, so this author will stick to the inanimate subject matter today—the story of the machines used in the demolition.
Israel typically uses armored Caterpillar D9s for its urban renovation projects, but it’s hard to tell what type of machine led the charge in this instance. None of the articles on the subject make explicit mention of machinery, and from the few pictures available it looks like there might have been a few tractors (obviously not D9s) and even something that looks like a Hitachi excavator.
Given the reputed efficiency of such Israeli operations, it seems like a wonderful branding and advertising opportunity for machinery companies. After all, if Caterpillar’s machines can withstand Palestinian protests and still demolish structures in impressive time, then just imagine how effective they could be in road work or mining in the Western United States.
An armored Caterpillar D9
So why do companies prefer to avoid the spotlight? Because they also want to avoid costly litigation. Since 1980, protesters in foreign countries have used the Alien Tort Statute (28 U.S.C. § 1350) to sue American companies in American courts for alleged human rights violations. The most famous of these cases to arise from Israel occurred in 2007 and charged Caterpillar with assisting the government of Israel in the violation of human rights (Corrie v. Caterpillar, Inc.).
Poor Caterpillar. This seems absurd even if it is assumed that Israel violated human rights. If John Doe lawfully sells a lawnmower to a neighbor who then uses it to run over his enemy’s feet, should John Doe be held accountable? But even more to the point, if John sells a lawnmower to a foreign, democratically elected government that is both recognized by, and an ally of, the United States, should he be vicariously sued for the allegedly improper use of this lawnmower? If the answer is yes, then U.S. commerce to all countries will effectively end under the possibility that American products could be used for bad ends.
Fortunately, American courts—after straying in the 1990s—now largely see the issue the same way and are working to restore the Alien Tort Statute to its original, limited scope (meant for extreme measure such as piracy and assaults on ambassadors). The Supreme Court’s ruling in Sosa v. Alvarez-Machain (2004) did much in this respect, but even more important is the recent Ninth Circuit ruling in Kiobel v. Royal Dutch Petroleum (2d Cir. Sept. 17, 2010). This new paper from Washington Legal Foundation details the importance of these cases.
The legal details of the Alien Tort Statute still need to be wrapped up—it would help if the Supreme Court would issue a new ATS decision similar to Kiobel—but given the way things are going, it shouldn’t be too long before American corporations can proudly announce that their equipment is used by the Israeli Defense Forces—one of the most efficient fighting forces in the world.
Stephen Richer is the co-founder and director of www.GathertheJews.com and is an employee of a public interest law firm in Washington, D.C.