Israel and the U.S. ruling on war crimes
A recent ruling effectively revokes immunity for foreign officials living in the United States for crimes committed in their home countries. It could put Israelis in the dock.
The U.S. Supreme Court ruled this week that under the Foreign Sovereign Immunities Act, not all former foreign officials living in the United States can claim immunity from prosecution in U.S. Courts. Its decision could have an immediate impact on Israelis.
'Sovereign immunity' offers states protection from lawsuits in another country's courts, based on the principle that disputes between nations should be resolved by diplomacy, not litigation.
Victims of the Somali regime recently filed a civil lawsuit against Mohamed Ali Samantar, who 20 years ago, had served as Somalia's prime minister, vice president, and defense minister.
The plaintiffs claimed that Samantar had been responsible for their torture, as well as other human rights violations. Their allegations included torture during interrogations, imprisonment for years without trial and rape by their prison guards. They based their suit on federal laws aimed at protecting foreign torture victims, allowing foreign citizens to claim for damages in American courts.
In his defense, Samantar claimed that as he was a minister in Somalia's cabinet at the time of the alleged crimes, he was immune from civil lawsuits in the U.S. A district federal court upheld his argument, and the suit was thrown out.
The plaintiffs appealed to the Supreme Court, which ruled that the Foreign Sovereign Immunities Act did not apply to specific foreign government officials, effectively revoking Samantar's immunity.
The former Somali PM was then granted a rare second appeal from the Supreme Court, questioning whether or not the Foreign Sovereign Immunities Act could in fact be applied to individual officials.
But the Supreme Court effectively rejected Samantar's claims, leaving only a narrow opportunity to gain immunity nonetheless. From the ruling's wording, it seems the court did not feel that this loophole would benefit Samantar's cause.
In recent years there have been two failed attempts to prosecute Israeli officials in the U.S. In 2007, Palestinians filed a lawsuit against former Shin Bet chief Avi Dichter, claiming he was responsible for the deaths of their relatives after an Israeli plane dropped a one-ton bomb on their Gaza home. A federal court said Dichter had functioned within his official duties, ruling him immune.
Another 2007 lawsuit accused former Israel Defense Forces chief Moshe Ya'alon of war crimes over the 1996 bombing of a United Nations camp in the Lebanese town of Kfar Kana, in which a number of civilians wer killed. But Ya'alon too was ruled immune from litigation, with appeals at federal level also rejected.
This week's ruling could now result in a wave of lawsuits against foreign officials. So far, 36 separate civilians lawsuits have been filed in the U.S. against various foreign officials, all of which were denied. The list of counties whose officials had been prosecuted includes Israel, Saudi Arabia, Australia, Jordan, Japan, and France.
Israeli officials could conceivably defend themselves from civil lawsuits in the U.S. by claiming their actions should be considered an "act of state" - a defense relying on the principle that each country may handle affairs within its jurisdiction without intervention from foreign states.
The problem with this line of defense is that as opposed to relying on the Foreign Sovereign Immunities Act, the claim of a "state act" recognizes the court's authority while seeking protection regarding a specific claim. The risk of that is that senior officials would have to explain their motivation for their actions to the court.
Haggai Carmon is an international lawyer who also provides legal representation to foreign countries.