Nitsana Darshan-Leitner, Israel’s Legal Warrior

Published: February 20, 2022
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Some of Israel’s fiercest battles are fought off the battlefield. They are waged in courtrooms, on social media and in the political bodies of world opinion. Yet many of those confrontations have tangible ramifications on the ground. And few are more aware of the threats they pose and the damage they inflict than Shurat HaDin’s Nitsana Darshan-Leitner.

As president of the Tel-Aviv-based civil rights organization Shurat HaDin-Israel Law Center, Mrs. Darshan-Leitner is an activist lawyer who has become one of Israel’s foremost legal warriors in courts around the world. She pioneered the use of civil lawsuits to fight terror financing, BDS, and the many lawfare threats against the State of Israel. Under her tutelage, Shurat HaDin has represented hundreds of terror victims in lawsuits against terrorist organizations and their backers and has won hundreds of millions of dollars in compensation.

Mrs. Darshan-Leitner has initiated legal actions against terrorists in Israeli, American, European and Canadian courts, including lawsuits against Hamas, Islamic Jihad, the Palestinian Authority, Hezbollah, Iran, Syria, Egypt, UBS, and other entities. She has used her legal prowess to successfully block the Gaza Flotilla and won a major victory against Airbnb for delisting Jewish homes in Judea and Samaria from its website. She continues to lead Shurat HaDin in the fight against the anti-Israel boycott movement, to protect Israelis from the International Criminal Court and to combat jihad on social media.

The mother of six children, Mrs. Darshan-Leitner was chosen as one of the 50 most influential Jews in the world by the Jerusalem Post in both 2016 and 2018. And she was cited as one of the 50 most influential Israeli women by Israel’s financial magazine TheMarker.

In an exclusive interview, Shurat HaDin’s legal champion spoke about her commitment to the fight against terrorism in all its forms and demonstrated how one woman’s advocacy can help shape that fight around the world.

What inspired you to become involved with Shurat Hadin?

As a law student, I was already involved in human rights cases, fighting on behalf of victims. When the Second Intifada broke out, I decided to try and fight terror organizations on behalf of terror victims. I started filing lawsuits against the Palestinian Authority, Iran, and Syria.

After three years, I started appearing in court with other private lawyers in judgments against Iran and in decisions against the Palestinian Authority. Then I was approached by a secret unit in the Mossad called Harpoon that was headed by former Director of the Mossad, Meir Dagan.

My book Harpoon: Inside the Covert War Against Terrorism’s Money Matters details these experiences. The goal of Dagan’s unit Harpoon was to fight terror funding. And the Mossad asked us if they could collaborate with us and give us evidence to use to go after banks that are aiding and abetting terrorism and to extend our activities against the Palestinian Authority. Since we couldn’t do it as private lawyers anymore, we established the Shurat HaDin Israel Law Center to take on these cases and file them in global courts.

Did this method influence other countries in their fight against terrorism?

Yes, exactly. That’s the point of the book. Meir Dagan paved the way for other governments to follow and other countries learned about the new way to fight terrorism. The idea was to fight terrorism in a non-conventional way, without shedding blood, by going after the money. And the United States and other countries began to utilize this method in their fight against ISIS. Ultimately, it led to the sanctions that they imposed on the Iranian regime.

Does Shurat HaDin continue to work with the Israeli government?

Sometimes we do. But we do it by working with the Foreign Ministry, the Justice Ministry, the IDF, the Navy, and the District Attorney’s office. The problem with working with the government is that sometimes they have their hands tied. They cannot do many things that they wish to do because of certain interests and foreign relationships and international treaties that they have signed onto.

Basically, if a government chooses to start a legal proceeding against an entity like the PA or China or Qatar and the next day this entity becomes your peace partner or becomes someone you can rely on, you cannot stop the legal proceedings. The political interests may change but the legal proceedings cannot be terminated. Once you start the legal wheel rolling, you have to continue until the end. Therefore, a government, per se, cannot get involved in legal proceedings. However, they sometimes have a specific goal or need to hit such an entity in the pocket, and this is where they use private lawyers or private organizations.

Did the Abraham Accords change this set of dynamics at all?

No. We did not have any lawsuits against the Emirates. But if Qatar would join the Accords, then we would have an issue.

Palestinian armed groups take part in a drill simulating a war against Israel, in Rafah, in the southern Gaza Strip, December 2021. (Abed Rahim Khatib/Flash90)

Has Shurat HaDin been active in the arena of the International Criminal Court?

Yes. We continue our work there because we believe that the investigations that the former Chief Prosecutor initiated will continue with the new prosecutor. We are preparing lawsuits in the ICC as a not-for-profit and private organization to fight for criminal indictments against the heads of Hamas, the PLO and the PA.

The Israeli government is not part of the ICC. Israel is not a party to the court or a party to the Rome Statute. Yet the ICC’s actions against Israel cannot be left open, so we are there defending Israel’s interests because the government cannot be there.

Can you describe how some of your cases were concluded and whether they resulted in any concrete deterrence on the part of terrorists?

Take our case against the PA. In Israel there’s a lien of half a billion NIS from the PA’s money. In the U.S., we ended up with a multi-million-dollar settlement against the PA. I think these cases teach the PA that the actual money that they give to terrorists before they attack or the weapons that they provide them for the attack itself might turn into hundreds of millions of dollars in judgments at the end of the day. It’s certainly a deterrent.

How difficult is it to actually collect money from these judgments for terror victims and their families and how do you collect tangible monetary compensation?

So far, we have had judgments in the amount of $2 billion and we were able to collect $300 million.

And we continue our collection efforts. The collections are usually done in two ways. One is the liens that we put on third parties — on bank accounts, buildings, or deals with third parties. The other way is through settlements with entities — for example the PA or banks. We settle the cases out of court and compromise. This is how we win and are able to collect some of the judgments.

L-R: Eyal Yifrach, 19; Gilad Shaar, 16; and Naftali Fraenkel, 16, Hy”d, three Israeli teenagers who were kidnapped and killed by Palestinians in June 2014. (IDF/AP)

Can you describe the logistics that go into building a case?

Let’s take the case of the three teenagers that were kidnapped and murdered in 2014. We investigated the case and, as the entire world knows, Hamas is the organization that committed the kidnapping and murder. But we had to prove that in court. So, we went to the military court where one of the terrorists was indicted, put on trial, and sentenced. We pulled out the records to understand what evidence was collected to connect the terrorists to Hamas. We went to social media pages and to the Hamas internet websites. We collected many pieces of evidence and created a puzzle. Then we wrote an opinion that proved that these terror attacks were done by Hamas in Israel. Based on this evidence we won a judgment against Hamas for 38 million NIS.

In the United States, we wanted to include Iran and Syria, in addition to Hamas, as state sponsors of this terror organization. We brought expert opinions to prove how Iran and Syria are helping Hamas and we’re in between judgments against Iran and Syria. Now we have to collect the judgments. Regarding the judgment against Hamas we are going to put a lien on the money that the PA is funding Hamas with. A big portion of the PA’s budget goes to Hamas in Gaza, and we are going to seize this money. In the U.S. case against Iran and Syria we look for assets that belong to these countries and we seek a judgment against these assets.

While tracking assets and funds in bank accounts, is it difficult to get the banks to comply?

Yes, because terror organizations don’t keep their money under its real name. You won’t find bank accounts under Hamas or Hezbollah or Islamic Jihad. You will find bank accounts under specific names of individuals or charities or NGOs. We know that they are affiliated with Hamas or that they’re officials of Hamas or that they are charities that fund Hamas, but we have to prove it in court. These institutions are affiliated with these terror organizations but the burden is on us to prove that.

You mentioned social media, which seems to be the new frontier for recruiting terrorists, and you have been involved in lawsuits against Facebook, Google, and Twitter. Have you been making any headway?

Recently, we did meet with some headway in our case against Google. But so far, I can tell you that the cases were denied and dismissed because the court always applies the Communication Decency Act of 2015, which is a law that grants blanket immunity to social media networks.

How do you get around this immunity?

By filing lawsuits. We file our lawsuits in the federal courts in New York. Recently we had a case with Google and for the first time the court of appeals had a dissenting opinion siding with us. They said that the Communications Decency Act should not apply to terror cases and that the social media network is not a bulletin board as they claim but rather are very involved with content.

Therefore, they should be considered as publishers and be held accountable for the content a terror organization publishes on their pages.

An additional judge said the Communication Decency Act is an old law that has to be renewed and should not be applied to current events. So now for the first time we have a chance and are going to ask for a reconsideration of the case.

Are you able to sue for wrongful death under the Anti-Terrorism Act?

Yes. My arguments in court regarding the social media cases are that I don’t really care what Hamas puts on their Facebook pages. They can say that the IDF is the most immoral army in the world or they can put butterflies and flowers on their page. But the mere fact that Hamas actually has a Facebook page is a violation of the Anti-Terrorism Act because an American company is not allowed to provide any sort of services to a designated terrorist organization. And social media services supply material support to a terrorist organization.

Are you getting support from American politicians on this issue?

We are now trying to get their support. We know that congressmen and senators are working on changing the Communication Decency Act, but I come from a totally different angle. I am involved on behalf of the counter-terrorism aspect and on behalf of terror victims. These cases should not have immunity from incitement on social media. There should be zero tolerance of terror online.

The Ben & Jerry’s ice cream factory in the Be’er Tuvia Industrial area in Israel. (AP Photo/Tsafrir Abayov, File)

Are you also involved with combatting the growing BDS movement, like what we recently saw with the Ben & Jerry’s boycott?

Yes. For instance, when Airbnb wanted to remove houses owned by Jews in Judea and Samaria in 2018, we filed a lawsuit against them under the Fair Housing Law. It was successful. They backtracked from their policy, settled the case out of court, compromised, and changed their policy.

When Ben & Jerry’s announced that they would no longer sell ice cream in Judea and Samaria we moved to take on the company’s name to make ice cream there. Because once Ben & Jerry’s announced they don’t want to operate in Judea and Samaria, they gave up their right for their trademark there. It seemed that anyone could take over the trademark and we were the first ones to do so. In any case where there is a place for legal proceedings against the BDS movement, we go and fight them.

The 2018 Taylor Force Act seeks to cut off U.S. aid to the PA until it ceases “pay for slay” martyr payments to families of terrorists. A new bill, called the Taylor Force Martyr Payment Prevention Act of 2021, was recently introduced by Senate Republicans aimed at foreign banks involved with “pay for slay.” How effective will this be and do you think it will garner enough support among Democrats?

The Taylor Force Act was under President Trump and yet it was difficult for it to pass. This new law under President Biden might be even more difficult to pass. On the other hand, if the U.S. wants to fight terrorism, this is one of the legislations they have to pass. I can’t predict what will happen in Congress, especially when you have the extreme “Squad” and the progressive wing of the Democratic Party. But in the end, it’s up to the U.S. if they want to fight the “pay for slay” policy, to fight terror financing, and if they want to put an end to money going into the hands of terror organizations.

This is not an Israeli problem and it’s not a Middle East problem; it’s a problem that is all over the world. We know that 9/11 would not have happened if Bin Laden was not financing the entire operation. It all comes down to money. Money is the oxygen of terror organizations, and if you want to stop the flow of terrorism you must stop the flow of the money.

We’ve been seeing a lot of lone wolf attacks lately in Israel. We know they are indoctrinated by terror organizations, but do they get direct financial backing from them?

You’re right about them being connected to a terror organization. There is no such thing as a lone wolf. It all comes from a designated terror organization that supports the lone wolf, that incites him to go and kill and that gives him weapons and instructions.

We have a judgment that we won in a federal court in NY, where actually Taylor Force was one of the plaintiffs. It’s called Force vs Iran. The courts said that there is no such thing as a lone wolf. That lone wolf basically is incited by and gets his instructions from a terror organization. The terror organization has many methods of carrying out attacks. They have organized cells, launch missiles and infiltrate into the State of Israel. Recently, as these three means were diminished, they use a new method involving their agents inside the West Bank. They incite them and give them instructions via social media, teaching them how to carry out terror attacks without being near them and without teaching them face to face. It’s all on social media.

So, when someone gets up one morning and grabs a knife and stabs a Jew it’s only because he was incited and instructed and told how to do it. Afterwards, the terror organization takes responsibility for the attack, like the recent stabbing attacks in Israel by Hamas and Fatah. Each one takes responsibility for the terror attacks that they themselves are responsible for.

Do you feel that the challenges become more difficult with time or has your success somewhat eased the process?

Unfortunately, it’s becoming harder. The law in the U.S. is interpreted against us in recent years. In the beginning it was enough if you could prove that a bank is giving money to a terror organization knowing that this is a terror organization. Today you have to prove that a bank conspires with the terror organization and that it shares the same values. It’s not enough to prove that the bank was negligent or knew that the money was going to terror organizations. This makes it very hard.

What do you think precipitated this?

Perhaps short memory.

Looking at your work, what case are you most proud of?

I think our judgment against the PA that we won in a jury trial in NY for $655 million in 2015. Although it was vacated by the Court of Appeals and by the Supreme Court, we are back now to reinstate this judgment and the court is now siding with us. It was shocking for the PA and a great victory for us. Also, we had the Gaza Flotilla case, which we were able to block by legal means and the Airbnb victory. I’m very proud of the cases we win.

Are you ever scared for your own safety?

No. I live in Israel where anyone can get killed! But really, I just continue doing it. We have to continue because it’s such important work.

Have you become personally close with any of the terror victims and their families and do you maintain relationships with them?

Yes. I keep in touch with all the victims. Like the families of the three teenagers, the family of the soldier who was lynched in the beginning of the Intifada, the family of Taylor Force, and the families of the kids who were massacred in the Mercaz Harav Yeshiva. And many other victims.

You deal with a lot of sadness. Does it ever cause you to become depressed?

It’s very depressing, especially when you have to go and hear them testify in court or pursue their affidavits or sit with them when they need to go through expert opinions on the case. It’s very hard.

But it must also be rewarding, trying to achieve justice.

Of course, absolutely. I remember one time the father of one of the victims called me and said, “Thank you for letting me fight back and getting my integrity back. I feel like I’m no longer a victim.”

I’m able to get closure and a measure of justice for the terror victims.

And this is my reward.