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Hebrew University
Yuval Shany, law school, celebrates Prosecution of Israeli Soldiers and Leaders as "War Criminals"

http://www.eajg.nl/index.asp?navitemid=104&type=3&item=290


 16-12-2005
Ha´aretz

 

The civil suit filed in New York last Wednesday against Avi Dichter, the former head of the Shin Bet security service, demonstrates once again the very real possibility that Israeli soldiers and civilians could be sued in foreign countries due to their involvement in military actions taken during the current intifada. The arrest warrant issued against Major General Doron Almog in London last September was an example of the possibility of filing criminal charges against Israelis in a foreign country, whereas the suit against Dichter demonstrates the possibility that civil "intifada suits" could be filed abroad. Moreover, it would appear that the legislation passed in the Knesset in the past year, which gives the state broad immunity against "intifada suits" in Israel, significantly increases the chances of legal steps against Israeli soldiers and civilians being taken in foreign courts.

 

 

The suit against Dichter assigns him with personal and command-level responsibility for killing and injuring innocent Palestinian civilians during the targeted assassination of Salah Shehadeh, the head of the Hamas military wing in Gaza, in July 2002. The steps taken in the United States are based on American law that grants American courts "universal"
authority regarding damages or physical injury caused as a result of the violation of international law, regardless of where the damage was caused. Many dozens of suits have been filed in the United States based on these laws.

 

American law, however, stipulates that the American courts can apply their authority only in cases in which the plaintiffs have no possibility of filing suits in the local courts of the country where the injury was caused. It is this backdrop that underscores the dubious practical wisdom behind the amendment to Israel's Civil Torts (Liability of the State) Law, which considerably broadened the immunity granted to the state against damage suits stemming from Israel Defense Forces actions in the
territories, thereby retroactively denying the right of Palestinians to submit "intifada suits" related to damages caused them after September 2000. Consequently, denying the right to file suits in Israel's courts means that there is nothing to prevent the filing of corresponding damages suits in the United States.

 

Moreover, the writing regarding this legal development was on the wall. In a debate held in the Knesset Constitution, Law and Justice Committee in June (before the amendment to the law was passed), Prof. Mordechai Kremnitzer of the Hebrew University of Jerusalem warned the committee: "I propose thinking very carefully before blocking the way to the these suits in Israeli courts ... There is a more realistic danger that we will find ourselves facing these suits in various courts in other countries, with far fewer defenses under far less favorable conditions ... No one will be able to defend this stupidity." The filing of the suit against Dichter in the United States illustrates very well the legal logic behind
Kremnitzer's opposition to the broadening of state immunity (although it is possible that the wording of the law that preceded the amendment would also have prevented the filing of "intifada suits" in Israel due to clear-cut "war-like actions").

 

It would appear that the message coming now from New York is that in an age when the enforcement of international law, both on the civil and criminal level, has become a global matter, the state's eschewal of conducting a serious investigation into the complaints of suspicion of international crimes being committed by its citizens, and the denial of the right to file claims of damages by the victims of Israel's military actions, does not grant broad legal protection to its soldiers and citizens, as might have been assumed. On the contrary, broadening the state's immunity considerably increases the risk of having suits filed against Israeli soldiers and citizens in less friendly legal forums and under far harsher legal conditions. As a result, there is a serious likelihood that Almog and Dichter will not be the last Israelis to find themselves open to "intifada suits" abroad.

 

Dr. Yuval Shany is a senior lecturer in international law in the faculty of law of the Hebrew University of Jerusalem.

 


 

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