In March, two Palestinian-Americans and two Palestinian villages moved to intervene in a suit brought against Airbnb, a global home-rental online platform, in federal court in Delaware by users of Airbnb in Israeli settlements in the West Bank. Airbnb settled the underlying claims and a Delaware judge ordered the case dismissed April 9. But on April 11, the Palestinian intervenors moved to continue their claims under international and domestic law despite the settlement. The intervention represents the first legal challenge brought by Palestinian landowners directly against Israeli settlers to appear in a U.S. court.
The lawsuit stems from an announcement by Airbnb on Nov. 19, 2018, that it planned to remove approximately 200 listings in Israeli settlements in the West Bank (excluding East Jerusalem) from its platform. In its statement, Airbnb explained it had “developed a framework for evaluating how [it] should treat listings in occupied territories,” which included assessing whether those listings contribute to ongoing human suffering or territorial disputes. “When we applied our decision-making framework,” Airbnb said, “we concluded that we should remove listings in Israeli settlements in the occupied West Bank that are at the core of the dispute between Israelis and Palestinians.” Airbnb’s emphasis on the contested status of the West Bank seemed to indicate that it viewed delisting the settlement properties as an expression of neutrality in the longstanding territorial dispute.
On Nov. 28, 11 Israeli-Americans with Airbnb listings in West Bank settlements, along with seven American and Israeli-American prospective renters, filed suit against Airbnb in the U.S. District Court for the District of Delaware, claiming that the new policy violated the Fair Housing Act (FHA). An eighth prospective renter joined the suit in the plaintiffs’ amended complaint. The 19 plaintiffs in Silber et al. v. Airbnb, Inc. argued that “Airbnb’s decision to remove [what it classified as] listings ‘in Israeli settlements in the occupied West Bank’ discriminates against Jews and/or Israelis on its face and in effect on the basis of race, religion and national origin.”
Airbnb moved to dismiss the suit on Jan. 29, arguing that the FHA does not apply extraterritorially or to short-term rentals, and that the proposed policy change would comply with, not violate, Airbnb’s non-discrimination obligations. Airbnb submitted that the plaintiffs lacked standing and subject-matter jurisdiction for their claims, and that removing listings it found objectionable was protected by the First Amendment and the Communications Decency Act.
Two Palestinian-Americans and two Palestinian villages represented by the New York-based Center for Constitutional Rights then moved on March 18 to intervene in Silber as of right. (Intervention in an ongoing lawsuit is allowed in federal court when, for instance, an intervenor claims resolution of the matter without the intervention would impede the intervenor’s ability to protect its own interests, or when the intervenor has a claim or defense that shares a question of law or fact with the main action.)
Intervenors Ziad Alwan, the village of Jalud, and the town of ‘Anata asserted ownership of properties listed by six plaintiffs in the West Bank settlements of Nofei Prat, Ofra, and the Adei Ad outpost of the Shilo settlement. They, along with Randa Wahbe, also asserted “interests in ensuring that Palestinians, including […] themselves, are free from discrimination” on the basis of national origin and religion. This latter argument is premised on the fact that, by Israeli military orders, almost all Palestinian residents of the West Bank cannot legally access the settlements in which the Airbnb properties are listed, except, for example, as laborers with special permits. The intervenors asserted violations of these interests under the FHA and the Alien Tort Statute. They also cited the Fourth Geneva Convention of 1949, which governs situations of occupation, along with other treaties “reflect[ing] the fundamental principle of law that territory cannot be acquired by force,” arguing that “the establishment of settlements is unlawful under international law.”
The deadline for briefs answering the intervention was first set for April 1 and then extended to May 6. But since Airbnb settled with the plaintiffs, the original parties’ first responses to the intervenors’ claims will be their briefs on the intervenors’ motion to continue.
The settlement between Airbnb and the original plaintiffs is a high-profile example of a company bowing to external pressure while struggling to navigate the difficult political climate around Israeli settlements. In its initial announcement regarding the West Bank settlement listings and its later reversal, Airbnb reiterated its opposition to the boycott, divestment and sanctions (BDS) movement. Yet the plaintiffs in Silberalleged “[u]pon information and belief” that Airbnb had decided to remove those listings “in response to calls by individuals and entities aligned and affiliated with the BDS Movement.” This allegation was echoed by state officials in Texas—where state pension funds were ordered to divest from Airbnb under a state law requiring Texas to divest from companies that boycott Israel—and in Florida, as well as by critics of Airbnb’s new policy in the press.
In the weeks since the intervenors submitted their briefs outlining violations of international and domestic law implicated by West Bank settlements, Israeli Prime Minister Benjamin Netanyahu pledged he would annex such settlements. He recently won a narrow victory in Israel’s parliamentary elections. Palestinian Foreign Minister Riad Malki and Palestinian Liberation Organization chief negotiator Saeb Erekat both noted support by the current U.S. administration for Netanyahu’s increasingly severe policies in their responses to his statements on annexation.
Responses to the Palestinian intervenors’ filings are due May 13.
(Note: As a student attorney in the Stanford Human Rights and Conflict Resolution Clinic, Amanda McCaffrey is working on projects in coordination with the Center for Constitutional Rights, which represents the intervenors in the Silber case. The views expressed here are her own and not those of the Clinic or Stanford University.)
IMAGE: An Airbnb apartment owner walks outside of her apartment in Adei Ad outpost north of the Palestinian village of al-Mughayyir, near the occupied West Bank city of Ramallah on November 20 2018. (Photo by MENAHEM KAHANA/AFP/Getty Images)