The Case against Avi Dichter
International law and Accountability
Just before midnight on July 22, 2002, the Israel Defense
Forces (IDF) dropped a one-ton bomb on Al-Daraj, a
densely-populated residential neighborhood in Gaza
City in the Occupied Palestinian Territory (OPT). Among
the 15 people who were killed were 8 children, and
more than 150 were injured in the aerial bombing. The
attack completely destroyed 9 apartment buildings and
partially destroyed or seriously damaged 30 more.
Avraham (Avi) Dichter, the Director of Israel’s General
Security Service (GSS), was responsible for planning
and directing the attack. He made the decision to carry
out the “targeted” assassination with the knowledge that
the so-called target’s wife and approximately 10 other
civilians would be killed in the attack. Dichter is responsible
for extrajudicial killings and war crimes, including
both direct and indiscriminate attacks against civilians.
The Al-Daraj attack was widely condemned by the
international community, including the U.S. government,
and is currently being criminally investigated by Israel.
To this day, however, there has been no accountability
for the attack or justice for the victims. According to the
Palestinian Center for Human Rights (PCHR), approximately
724 individuals were killed in these extrajudicial killings carried out by Israel between September 2000 and March 2008; the victims included 228 civilian
bystanders, of whom 77 were children.
Who is Avi Dichter?
Avi Dichter was the Director of Israel’s GSS from 2002 to
2005. Dichter planned and directed the attack on the
residential apartment building. He also had a central role
in developing and escalating the practice of “targeted”
assassinations and was quoted in a Washington Post
article as saying, “After each success, the only thought is,
‘Okay, who’s next?’”
After leaving the GSS, Dichter was served with Plaintiffs’
Complaint in the United States while he was a fellow at
the Saban Center for Middle East Policy at the Brookings
Institution. Dichter is currently Israel’s Minister of Public
Security.
Who are the Victims of the Al-Daraj Bombing?
Among the victims of the bombing are Ra’ed Matar,
whose wife, Eman Ibrahim Hassan Matar, and three
children (ages 1 ½, 3 and 5 years) were killed, as well as
his sister (10 years), niece (2 months), and grandmother.
Mahmoud Al Huweiti’s wife, Muna Fahmi Al Huweiti, and
their two sons (ages 4 and 5 years) were also killed.
More than 150 people were injured in the attack, including Marwan Zeino, whose spinal vertebrae were crushed. He sustained injuries all over his body and remains unable to work due to mobility constraints and pain.
How can Foreign Officials be held Accountable in the United States for Human Rights Violations Abroad?
U.S. courts can hold former foreign officials who are visiting
or residing in the U.S. liable for violations of customary
international law. The Alien Tort Statute (ATS), a 1789
statute, gives non-U.S. citizens the right to file civil suits in
federal courts for such violations. Congress also passed the
Torture Victim Protection Act (TVPA) in 1992 to allow
individuals to seek redress for torture and extrajudicial
killings carried out under the authority of a foreign nation.
In 1980, the Center for Constitutional Rights (CCR)
obtained a landmark decision under the ATS in Filártiga v.
Peña-Irala, finding that a civil case against a former
Paraguayan official in the U.S. for torturing Paraguayan
Joelito Filártiga to death could be brought in U.S. court. In
2004, the Supreme Court in Sosa v. Alvarez-Machain
affirmed the Filártiga line of cases, finding that the ATS
provides a jurisdictional basis for claims for violations of
“specific, universal and obligatory” international norms.
Since Filártiga, former government officials from countries
including Guatemala, Indonesia, Haiti, the Philippines, El
Salvador and Ethiopia have been held liable under the ATS
for violations such as torture, extrajudicial killings and war
crimes.
War crimes, which are absolutely prohibited, include attacks
directed at civilians or civilian objects, as well as indiscriminate
attacks that fail to take feasible precautions to avoid harming civilians. International law also prohibits targeting a civilian in an occupied territory except when they are taking a direct part in hostilities.
Matar v. Dichter
On December 8, 2005, Plaintiffs Ra’ed Matar, Mahmoud Al
Huweiti and Marwan Zeino brought a class action suit
against Dichter on behalf of the Palestinians who were killed
or injured in the Al-Daraj bombing. They are represented by
CCR, CCR cooperating attorneys and the Palestinian Center
for Human Rights. The suit seeks compensatory and punitive
damages against Dichter for violations of customary international
law, namely extrajudicial killing, war crimes, crimes
against humanity and cruel, inhuman or degrading treatment
or punishment.
The case was filed in the Southern District of New York
District Court, pursuant to the ATS, the TVPA and state law,
including claims for wrongful death, negligence, public
nuisance, battery and emotional distress.
In February 2006, Dichter moved to dismiss the case,
arguing that he is entitled to immunity under the Foreign
Sovereign Immunity Act (FSIA) and that plaintiffs’ claims are
political questions that would interfere with U.S. foreign
policy if decided by the courts. The U.S. government
submitted a “Statement of Interest,” arguing that even though
the FSIA does not apply to individuals, Dichter is immune
under federal common law and customary international law
for any official acts. In May 2007, Judge Pauley dismissed
the case, finding that Dichter was immune under the FSIA
because, according to the Israeli government, he was acting
in the course of his official duties, and that the political
question doctrine also warranted dismissal.
Plaintiffs have appealed the dismissal, arguing that the FSIA
does not apply to individuals like Dichter who are no longer
government officials when the complaint is filed. Plaintiffs
further maintain that Dichter cannot be immune because he
acted outside the scope of his lawful authority and because
there is no immunity for violations of jus cogens norms,
including war crimes. Moreover, the political question
doctrine does not apply, as courts not only adjudicate cases
arising out of conflicts like the Israel-Palestine conflict, but
also challenges to U.S. military decisions.
