Landmark Lawsuits Filed in U.S. Courts Against Israeli Officials

By Noura Erakat


	Former Shin Bet head Avi Dichter (l) and former IDF chief of staf Moshe Ya’alon (AFP Photo/HO/IDF).

DECEMBER 2005 marked the filing of two claims on behalf of Palestinian human rights in U.S. federal courts. On Dec. 8 the Center for Constitutional Rights (CCR), a civil and human rights litigation organization, along with the Palestinian Center for Human Rights (PCHR) in Gaza, served Avi Dichter, the former head of Israel’s General Security Services, with papers to appear in court. The complaint filed against Dichter alleges that he provided the intelligence necessary, and the final approval, to drop a one-ton bomb on the residential area of Al-Daraj in Gaza just before midnight on July 22, 2002, killing 15 people, including 8 children, and injuring 150 others.

On Dec. 15 CCR, along with several other U.S.-based human rights attorneys, served Moshe Ya’alon, former head of Israel’s Intelligence Branch and former chief of staff of the Israel Defense Forces. The class action lawsuit charges Ya’alon with war crimes, extrajudicial killing, crimes against humanity, and cruel, inhuman or degrading treatment or punishment for his role in the 1996 shelling of a United Nations compound in Qana, in the south of Lebanon.

The lawsuits against Dichter and Ya’alon are not the first attempts to sue Israeli officers in U.S. courts for the violation of Palestinian human rights. In July 2002, New York-based attorney Stanley Cohen filed a class action lawsuit on behalf of 23 Palestinian Americans against U.S weapons manufactures, Israeli officials and U.S. government officials. (See Sept./Oct. 2002 Washington Report, p. 20.) Unlike that case, which targeted Israeli and U.S. officials protected by diplomatic immunity, the recent lawsuits against Dichter and Ya’alon do not face the same challenge. Neither defendant any longer represents the Israeli government or military—both are retired from the latter and are now working as policy fellows in U.S.-based think tanks. Therefore, they no longer enjoy diplomatic immunity.

Similar cases have been filed in European courts for several years. On June 18, 2001, 23 survivors of the 1982 Sabra and Shatila massacre brought suit against Ariel Sharon, Amos Yaron, and Rafael (Raul) Eitan, charging them with war crimes, crimes against humanity and genocide. Belgium’s Supreme Court held that the country’s 1993 Anti-Atrocity legislation allowed for prosecution in absentia, thereby finding the plaintiffs’ bases for appeal of a lower court decision to be well-founded, and allowed the case to proceed. Simultaneously however, the Supreme Court found Sharon to be temporarily immune from prosecution as Israel’s acting head of state.

Most recently, on Sept. 10, 2005, Chief London Magistrate Timothy Workman, of the Bow Street magistrates’ court in central London, issued an arrest warrant for Maj. Gen. Doron Almog for his involvement in the “wanton destruction” of 59 homes in Rafah refugee camp on Jan. 10, 2002. A source informed Almog that he faced arrest by British police before he descended from the plane on which he had traveled to London. Almog evaded arrest by remaining on board and taking a return flight to Israel. The arrest warrant for Almog followed years of failed attempts to obtain justice through the Israeli judicial system. PCHR responded by providing evidence for solicitors in the UK to pursue the case in UK courts pursuant to its legal principle of universal jurisdiction over war crimes.

The Israeli Precedent

Trying violators of human rights in third-party jurisdiction began as early as 1962, when the Israeli Supreme Court tried Adolf Eichmann for the war crimes he committed against European Jews as a Nazi officer. To justify its abduction and trial of Eichmann, the Israeli High Court held that some crimes “are of such gravity and magnitude that they warrant their universal prosecution and repression.”

Suing foreign persons for war crimes in U.S. courts began in 1980, when human rights practitioners initiated a civil suit against a Paraguayan police officer for the alleged torture of the Paraguayan plaintiff’s son. In Filartiga v. Pena-Irala (Filartiga), the Second Circuit Court which heard the case found that torture constituted a violation of international customary law and awarded the plaintiffs $10 million in legal compensation.

Filartiga was filed pursuant to the Alien Tort Claims Act (ATCA). Enacted as part of the Judiciary Act of 1789—a statute almost 200 years old before it was invoked in 1980—ATCA provides a cause of action for violations of international customary law as well as of United States treaties, and grants subject matter jurisdiction to federal courts to hear those claims. ATCA provides jurisdiction for civil liability only.

The claims against Dichter and Ya’alon are filed pursuant to ATCA and the Torture Victim Protection Act. The suits seek damages and a declaratory judgment for the killings and injuries resulting from their military commands. The ability to bring suit in U.S. courts is imperative—and, ironically, more feasible—in light of the Israeli Knesset’s recent amendment to its civil torts (state liability) law. The amendment retroactively broadens state immunity from damages caused in Israeli-occupied territory, thereby limiting Israel’s liability in its own courts and leaving Palestinian claimants no option but to pursue their claims in third-party jurisdictions, such as U.S. federal courts.

Commenting on the case against Avi Dichter, PCHR director Raja Sourani said, “Justice must finally be delivered to the Palestinian families in this lawsuit who have suffered tremendously because of Avi Dichter’s decision to bomb the al-Daraj neighborhood. These families are representative of scores of other Palestinians who have suffered and continue to suffer as a result of Dichter’s actions.”

U.S. courts may finally deliver some semblance of justice to Palestinian claimants and do the job that neither the United Nations nor the international community has been able to accomplish for the past 58 years.

Noura Erakat is a Palestinian-American legal activist. She is the national grassroots organizer and legal advocate for the U.S. Campaign to End the Israeli Occupation, where she is developing a Palestinian Human Rights Litigation Project.