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Matar et al v. Dichter

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Synopsis

Matar v. Dichter is a federal class action lawsuit against Avi Dichter, former Director of Israel’s General Security Service (GSS), on behalf of Palestinians who were killed or injured in 2002, when a one-ton bomb was dropped on a residential apartment building in Gaza City at midnight, a so-called “targeted” assassination.

Status

On April 16, 2009, the United States Court of Appeals for the Second Circuit affirmed the dismissal of the case against Avi Dichter.  The Court deferred to the view of the Executive that it should decline jurisdiction over this case. In May 2007, Judge William Pauley of the Southern District had dismissed the case on other grounds, finding that Dichter possesses immunity under the Foreign Sovereign Immunities Act (FSIA) because, according to the Israeli government, he was acting in the course of his official duties.

Description

Matar et al v. Dichter is a class action lawsuit brought against the former Director of Israel’s GSS, Avi Dichter. It charges Dichter with war crimes, extra-judicial killing and other gross human rights violations for his participation in the aerial bombing of a Gaza residential neighborhood. The suit charges that Dichter planned and directed the attack, and that GSS provided the necessary intelligence and gave final approval to drop a one-ton bomb on an apartment building in the middle of the night, which killed eight children and seven adults, and injured over 150 other people. Claims were brought under the Alien Tort Statute (ATS) and Torture Victim Protection Act (TVPA). The plaintiffs seek compensatory and punitive damages against defendant Dichter for violations of state, federal, and international law. The plaintiffs include Ra'ed Matar, whose wife and three children (ages 1 ½, 3 and 5 years) were killed in the attack, as well as plaintiff Mahmoud Al Huweiti, whose wife and two sons (ages 4 and 5 years) were killed. Over 150 people were injured in the attack, including plaintiff Marwan Zeino, whose spinal vertebrae were crushed.


The attack occurred just before midnight on July 22, 2002, when the Israel Defense Forces (IDF) dropped a one-ton bomb on al-Daraj, a residential neighborhood in Gaza City in the Occupied Palestinian Territory (OPT). The attack was widely condemned by the international community, including the U.S. government, at the time.


Plaintiffs argue that Dichter, as a former foreign official acting outside the scope of his lawful authority, is not entitled to immunity under the Foreign Sovereign Immunities Act (FSIA) or under common law. Plaintiffs further argue that to allow immunity for claims brought under the TVPA defeats the very purpose of the Act.
  The Court of Appeals for the Second Circuit declined to rule on Plaintiffs argument that the FSIA does not apply to Avi Dichter.  The Court stated that it would instead look to the common law.  Finding that “in the common-law context, we defer to the Executive’s determination of the scope of immunity,” the Court adhered to the Executive’s determination that it decline jurisdiction over this case.  

 

 

Timeline

• December 8, 2005: The Center for Constitutional Rights (CCR) brought a class action lawsuit against Avi Dichter, the former Director of Israel's GSS, on behalf of the Palestinians who were killed or injured in a 2002 air strike in Gaza.  CCR brought the case in the Southern District of New York District Court with the Palestinian Center for Human Rights (PCHR) and CCR Cooperating Counsel Judith Brown Chomsky and Michael Poulschock. 

• February 22, 2006: Defendant filed a motion to dismiss.

• April 26, 2006: Plaintiffs filed their opposition to the motion to dismiss.

• May 31, 2006: Oral arguments were held before Judge William Pauley in the Southern District of New York.

• November 17, 2006: Upon the court’s invitation, the United States submitted a Statement of Interest, arguing that Dichter is immune from suit for the official acts alleged in the lawsuit.  

• January 18, 2007: The parties filed responses to the Statement of Interest.

• May 2, 2007: Judge Pauley dismissed the case, finding that Defendant Dichter possessed immunity under the FSIA because, according to the Israeli government, he was acting in the course of his official duties.

• June 14, 2007: Plaintiffs filed their Notice of Appeal.

• September 24, 2007: Plaintiffs/Appellants filed their opening brief on appeal.

• September 27, 2007: The Center for Justice and Accountability filed an amicus brief in support of Plaintiffs.

 

• November 7, 2007: Defendant/Appellee Dichter filed his brief on appeal.

• November 19, 2007: Washington Legal Foundation and Allied Educational Foundation filed an amicus brief in support of Defendant.

• December 19, 2007: The United States filed an amicus brief in support of affirmance of dismissal.

•January 22, 2008: Plaintiffs/Appellants filed their reply brief on appeal.

• January 16, 2009: Oral argument before the United States Court of Appeals for the Second Circuit.

• April 16, 2009: The Court of Appeals for the Second Circuit (Judges Jacobs, Kearse and Hall) affirmed dismissal of the case. 

 

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