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Hastings International and Comparative Law Review

Authors

Gwynne Skinner

Abstract

The Political Question Doctrine is a problematic and an often misused doctrine that prevents courts from fulfilling their Article III responsibilities. Nowhere is this misuse more prevalent than in human rights cases involving Palestine, and in particular, human rights cases alleging misconduct by the Israeli government or officials. This Article discusses in detail courts' decisions regarding the Political Question Doctrine raised in human rights litigation, and analyzes courts' decisions in such cases involving Palestine. It notes the stark difference in both outcome and analysis regarding cases against the PLO, Arab Bank, or others acting in Palestinian interests - all of which have been allowed to proceed where the Political Question Doctrine has been raised - and cases alleging abuses by Israel or Israeli officials. Part I provides the framework by discussing the origins of the Political Question Doctrine. Part II summarizes the doctrine's emergence and applicability in human rights litigation in the United States, noting in particular the cases discussions of the doctrine when it has arisen as a defense in cases involving the individuals, corporations, and groups, such as the PLO. Part III describes how the courts have dismissed all cases involving Israeli's alleged illegal actions on, inter alia, political question grounds, and describes why and how these decisions are analytically contradictory and problematic. The Article concludes that only when the Political Question Doctrine is reformulated, narrowed, and clarified will cases arising in clearly political contexts be adjudicated with less contradiction and more analytical consistency so that biases and prejudices - conscious or unconscious - will not seep into these decisions.

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