Avi Dichter, the former Director of Israel’s General Security Service (GSS), has been sued in a United States court for his role in the Al-Daraj, Gaza bombing that killed fifteen people and injured approximately 150 others. The Center for Constitutional Rights (CCR), along with CCR cooperating attorneys and the Palestinian Center for Human Rights (PCHR), represent the survivors of the July 2002 bombing in a class action lawsuit against Dichter for war crimes, crimes against humanity and extrajudicial killings.(1)
Plaintiffs have alleged that Dichter participated in the decision to drop the one ton bomb around midnight on the residential neighborhood in the densely-populated area, and that GSS provided the necessary intelligence and final approval to carry out the attack. The Complaint alleges that Dichter not only knew the bomb would kill the so-called “target,” Saleh Shehadeh, but also his wife, and possibly ten other civilians. The court has jurisdiction over Dichter because he was served with the complaint when he was in New York in December 2005, after he had left the GSS, and prior to becoming the Minister of Public Security.
Under the principle of universal jurisdiction (UJ), courts exercise jurisdiction over internationally condemned crimes regardless of where they were committed, and often without the state having a connection to the perpetrator or the victim. UJ laws seek to prevent impunity, whereby human rights violators may evade accountability for their conduct. Such laws in nations that include Spain, Belgium, Germany, and the United Kingdom have been used to convict criminals for human rights abuses committed in other countries. The U.S. criminal UJ torture statute was recently used for the first time to indict Chuckie Taylor for torture in Liberia.
Although universal jurisdiction often refers to criminal proceedings, where a state can (and sometimes must) bring charges, and the defendant can be arrested and imprisoned, it also applies to civil cases brought by survivors for monetary damages, as with the case against Dichter. The suit was brought under the Alien Tort Statute (ATS) (or Alien Tort Claims Act (ATCA)), a statute from 1789 that gives federal courts jurisdiction over civil tort actions by foreign nationals for violations of customary international law. Since 1980, when CCR won Filártiga v. Peña-Irala, holding a former Paraguayan official liable for torturing a Paraguayan citizen in Para guay, the ATS has been used to sue human rights violators found in the U.S. for violations occurring anywhere in the world.(3) Former government officials from countries including Guatemala, Indonesia, Haiti, the Philippines, El Salvador, Ethiopia, and Argentina have been held liable in U.S. courts for human rights abuses committed outside the U.S., against foreign citizens.
Despite such precedent, Dichter moved to dismiss the case claiming that he is immune from liability under the Foreign Sovereign Immunities Act (“FSIA”), which governs U.S. courts’ jurisdiction over foreign states. Some courts have applied the FSIA to individual officials acting within their scope of authority, but the Second Circuit (where Dichter’s case is being heard) has not. A class action case brought by CCR against Moshe Ya’alon on behalf of survivors of the 1996 shelling of a U.N. compound in Qana, Lebanon was recently dismissed pursuant to the FSIA in the District of Columbia District Court, where the FSIA applies to individuals.