Trying to get Israel into a court room anywhere in the world to be held to account for its actions is a bit like trying to nail jelly to a wall with one arm tied behind your back. A ground-breaking legal move by three Americans and a Belgium, though, could result in the Zionist State being forced to defend itself in a US courtroom.
Exhibit One is bound to be a 25-metre motor yacht called Challenger 1, which was flying the Stars and Stripes when the Israelis launched a military operation in which nine civilian activists were killed and scores more were wounded and abused. The yacht is still being held by Israel, which is refusing to return it to its rightful owners. The unprecedented legal action has been mounted by the group of four who were on board at the time. They lodged a civil claim for damages in the US District Court for the District of Columbia in Washington on Tuesday.
Filed against the State of Israel, the claim is for injuries suffered during an attack on a US ship in international waters back in 2010. Challenger 1 was one of a group of vessels sailing as part of the Freedom Flotilla seeking to deliver humanitarian aid and medical supplies to the Palestinians living in the besieged Gaza Strip. The claim says that the four plaintiffs are seeking compensation for the “harm and distress, injuries and losses caused by the [Israeli] attack.”
Israel has a default position of refusing to acknowledge any wrongdoing at anytime, anywhere against anyone. Not unexpectedly, therefore, it has refused to accept responsibility and liability for anything that happened in international waters in the Mediterranean Sea on 31 May 2010.
Eight Turkish humanitarian aid workers and a dual US-Turkish national on board the Mavi Marmara were killed by Israeli bullets fired from Israeli guns in the hands of Israeli soldiers; a ninth Turkish citizen, Uğur Süleyman Söylemez, has since died of his injuries after being in a coma for four years, bringing the death toll to 10. However, in almost 6 years since the attack by Israeli commandos on civilian ships, no compensation has been paid by the Israeli government to those directly affected.
The Turkish courts are holding a war crimes trial against the Israeli soldiers deemed to have some responsibility for the killings on board the Mavi Marmara. Because Israel refuses to acknowledge any liability, those wanted for the crimes are refusing to go to Turkey and attend the court.
In a separate move last November, the International Criminal Court (ICC) ordered a reinvestigation of the Mavi Marmara raid after prosecutors who had been probing the case had argued previously that there was no need to proceed to a trial. Three judges decided that the complaint filed by the Comoro Islands, where the ship was registered, was valid and the prosecutors’ decision not to proceed with the case should be readdressed. The judges also cited an appeals court decision to reject the arguments of the prosecutors. The Mavi Marmara was leading the flotilla when Israeli commandos launched their assault.
One of the plaintiffs is the indomitable David Schermerhorn, who was among those human rights activists who first broke the siege of Gaza back in August 2008, also by sea. Two boats from the Free Gaza Movement arrived in the Port of Gaza to the astonishment of Palestinians who had not seen such a sight in 41 years; that’s how long the siege in one form or another has been endured.
“Basic rights should be respected and upheld by our US courts,” said Schermerhorn after successfully filing the papers to sue Israel this week. “We want those responsible in the Israeli authorities to be held accountable for their harmful actions. They should not get away with needless violence against unarmed civilians and with stealing humanitarian aid and our belongings.”
The case is said to be “ground-breaking” as it relies on an exception in the Foreign Sovereign Immunities Act (FSIA) to sue a foreign state for serious violations occurring in the US. A US-flagged ship like Challenger 1 is classed as US territory for the purposes of American law.
“States are generally immune from suit in United States courts,” explained Steven Schneebaum, the US Counsel for the plaintiffs, “but that immunity is waived in a number of circumstances. When agents of foreign governments commit wrongful acts in the United States that cause personal injury, and egregious acts against US nationals anywhere in the world, they are not entitled to immunity. We contend that both of those exceptions apply to the facts of this case.”
According to Professor Ralph Steinhardt, leading international law expert at George Washington University and a member of the plaintiffs’ legal team, “Israel is a sovereign state, which gives it certain rights and powers, but that certainly does not include the right to attack a civilian vessel flying the flag of the United States on the high seas and then to assault the civilians on board, including US citizens.” The attack on Challenger 1 was a patent violation of international law, including the laws of war, human rights, and the law of the sea, Prof Steinhardt pointed out. “It falls to the courts of the United States to enforce the rules when – as here – Congress has given jurisdiction to those courts. If the situation were reversed, and the United States had attacked an Israeli vessel on the high seas and mistreated the Israeli citizens abroad, the Israeli Foreign States Immunity Law would open Israeli courts to a suit against the United States.”
UK-based international lawyers representing the plaintiffs in this and other legal actions around world, Sir Geoffrey Nice and Rodney Dixon, emphasised that this case is a real test for the international rule of law. “The rights of citizens to protest peacefully should be protected vigorously,” they asserted. “No State should enjoy impunity. We have also brought a case in California for the wrongful death of a US citizen who was killed in the raid on the flotilla.”
A report on the attack released by the UN Human Rights Council in September 2010 found that “the force used by the Israeli soldiers in intercepting the Challenger 1… was unnecessary, disproportionate, excessive and inappropriate, and amounted to violations of the right to physical integrity…” In addition, the Prosecutor of the International Criminal Court has found in her preliminary examination of the attack a reasonable basis to believe that acts perpetrated against the Freedom Flotilla amounted to war crimes.
Three of the four plaintiffs in Washington DC are US citizens, and the other is a Belgian national. They are all humanitarian activists who have been working to highlight the plight of those in Gaza for decades. Each suffered physical and emotional harm and distress as a result of the attack. David Schermerhorn, a US citizen, was injured by a stun grenade thrown at him by an Israeli commando; it exploded less than half a metre from from his head, causing permanent partial loss of sight in one eye. Huwaida Arraf, a dual US and Israeli national, is a US lawyer and human rights activist; she was physically abused by Israeli soldiers who slammed her head against the deck of the ship and stood on it before handcuffing and hooding her. Belgian Margriet Deknopper was shot in the face with a “rubber” bullet which broke her nose. Mary Ann Wright, a US Army and Army Reserve veteran and former US diplomat, was assaulted by Israeli soldiers when they detained her and the others after boarding the ship.
Hakan Camuz of Stoke & White LLP (London) who act for all of the passengers on all of the boats and ships involved highlighted that the plaintiffs, like all those on the Freedom Flotilla, were trying to do the right thing by bringing to the world’s attention the “cruelty” of the blockade and its “dire humanitarian consequences” for the ordinary people of Gaza. “They wanted to bring the residents of Gaza food, medical supplies, the necessities to survive, but were stopped with unjustified, brutal force, for which we now seek a just remedy. However, this action is solely concerned with recovering appropriate damages for those of have suffered loss and injury as a result of Israel’s actions on the high seas.”
Ground-breaking indeed, and with possibly devastating results for Israel’s infamous ability to act with impunity in breach of international laws and conventions that the rest of the world are expected to abide by. We shall watch this case with interest.
- Mavi Marmara attack remembered in Gaza.
- Turkey appeals ICC Mavi Marmara ruling.
- Spanish court issues arrest warrants for Netanyahu and other officials.
The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.