IDF General Sued For "Targeted Killings"

mijopaalmc said:
Here is the full text of the Order to Dismiss: Matar v Dichter

I don't pretend to understand it all, but it seems that the force of the order lies primarily on the immunity granted by the United States to "agencies or instrumentalities" of foreign entities. Thus, it does not mean that Dichter did not violate any international. Rather, it means that Dichter cannot be prosecuted under US law because such prosecution is forbidden by US law.

I myself am not clear on why Dichter is covered under the Foreign Service Immunities Act (FSIA), or why, in this case, the FSIA overrides the Torture Victims Protection Act (TVPA), a point which the judge seems to gloss over in his order. It seems, though, that it may have something to do with maintaining diplomatic relations with an ally, which was not an issue in the prosecution of Nazi war criminals in so far as the government from which they derived the agency or instrumentality both lacked diplomatic relations with the US and no longer exists.
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It depends, apparently.
 
I love how wantonly arrogant the USA is, that they think their courts and laws can just be forcibly cast upon the whole world.

The Israel/Lebanon war is none of the USA's damn business.

-Gumboot
 
There is however a little thing called international law.

Also, did you criticize the Spaniard for trying to imprison Pinochet?
 
a_unique_person said:
It depends, apparently.
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No. Read the decision itself, not someone's parsing of it.

(the link to the pdf provided by mijopaalmc works fine in my browser, thank you)

Right there on pp 12 -- Section C -- Scope of Lawful Authority:

"The plaintiffs allege that extrajudicial killings violate jus cogens principles of international law... This court disagrees." (bolding mine)


In any event, I found it worthwhile to bump the thread, and illustrate the conclusion to this particular case.
 
My interpretation of the decision is somewhat different than what is implied by the section Mycroft quoted.

A longer cut from the section that Mycroft quoted from:
Plaintiffs allege that the extrajudicial killings alleged in the complaint violate jus cogens principles of international law. On this basis, Plaintiffs argue that the FSIA does not apply to Dichter because jus cogens violations are necessarily beyond the scope of an official's lawful authority. The Court disagrees. Plaintiffs cite several cases in which a foreign official alleged to have violated jus cogens principles was denied immunity under the FSIA. However these officials did not act in their official capacity. None of the cases cited by Plaintiffs involved a situation where, as here, the foreign government had expressly ratified the defendant's actions and affirmed that the defendant was acting pursuant to his official duties.
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What the court seems to be saying here is that even if an individual does violate jus cogens they are exempted from prosecution by the terms of the FSIA. Based on this paragraph it appears the court is not making any decision whether the defendant violated jus cogens.

I wasn't familiar with what jus cogens meant prior to reading this decision. Apparently the UN has decided on a legal principal that there are some things that are so obviously bad that if an individual does them even when acting in their official capacity that they can be tried for a crime.

My personal opinion is that the headline stating that the court had "cleared" Dichter is misleading. Under the most likely interpretation of that statement there is an implication that the court had found that defendant was not guilty of what the plaintiff was charging but that is not what the court found. The court found that the defendant was exempted from claims by the plaintiffs for his actions because he was acting in an official capacity. But I also agree that under an entirely reasonable interpretation of the headline that the court did "clear" Dichter in that it found that he was exempted from the claims of the defendant.

Based on my understanding it seems that mijopaalmc's interpretation was correct but I, like him, don't understand the legal basis for suing people under the FSIA is when those people were working in their official capacity. It seems that according to this court that hasn't happened, but it seems like it has happened when people have sued the Nazis for damages.
 
davefoc said:
My interpretation of the decision is somewhat different than what is implied by the section Mycroft quoted.
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(Mycroft is not here, you are confused slightly.)


The court found that the defendant was exempted from claims by the plaintiffs for his actions because he was acting in an official capacity.
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Not entirely accurate, davefoc, if you read to the last part of the decision ---

The Court said, that even absent any FSIA exemption whatsoever, the State of Israel performed within the realm of their political authority and jurisdiction, and Dichter couldn't be held to account for his acts in service of the Israeli government (which are ostensibly legitimate in the pursuit of terrorist fiends).

(see: Section III -- Political Question Doctrine)


Case closed.
 
My apologies for my confusion when I misidentified Mycroft as the source of my quotes of Webfusion.

Note that the PDF document is coming up as an image and it is not easy to be able to cut and paste from it. The quotes below were hand typed and may contain errors.

From the decision:

Even if the FSIA were inapplicable, this Court would dismiss the action pursuant to the political question doctrine. The Supreme Court in Baker v. Carr articulated six situations in which a nonjusticiable political question may exist:

[Note items 1,2,3, and 5 below were not copied because the subsequent argument didn't refer to them]

(4) the impossibility of a court's undertaking independent resolution without expressing lack of respect due coordinate branches of government

(6) the potentiality of embarrassment from umltifarious pronouncements by various departments on one question.

...

The Baker factors-and particularly factors four and six-strongly suggest that the action involves a political question. The defendant is a high-ranking offical of Israel, a United States ally. The Complaint criticizes military actions that were coordinated by Defendant on behalf of Israel and in furtherance of Israeli foreign policy. For this reason, both Israel and the State Department, whose opinions are entitled to consideration, urge dismissal of this action.
...
Plaintiffs contend that because the administration did not condone the al-Darj bombing, adjudication of this matter could not exhibit a lack of respect for the political branches. This Court disagrees. The Government has urged the Court to dismiss this action regardless of whether it approved of the attack.
...
Consideration of the case against this unique backdrop would impede the Executive's diplomatic efforts and, particularly in light of the Statement of Interest, would cause the sort of intergovernmental dissonance and embarrassment that gives rise to a political question.
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The bottom line here is that for reasons unrelated to whether or not Dichter* engaged in violations of international law or whether or not Dichter actions were justified (the US government was critical of them) this case was dismissed. IMHO, that seems to be the right decision. If this case had been allowed to go forward I can imagine the US courts being overwhelmed with politically difficult, unresolvable suits about the actions of foreign militaries. The practicality of the situation here seems to be that if the Executive Branch thinks that a government is doing bad stuff they are going to allow suits like this on occasion to go forward. If the Executive Branch doesn't think these suits should go forward they will oppose them as they did in this case.

* The decision spells Dichter's name two different ways. I used the spelling from the front of the decision here.
 
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davefoc, yeah, your conclusions seem accurate...

kudos for typing out the quote, it is indeed relevant.

Based on the underlying principles, I am now convinced that the court actually did not make the ruling based on a finding that ex-GSS head Dichter had not violated international laws, and leaves that issue open.

It would not surprise me that with the NY court case over, Ra'ed Mohamed Ibrahim will pursue other avenues open to prosecute Israel and those who serve in official capacities. Watch and see --- the ICJ (the Hague) is going to be busy hearing the suits.
Now even Prime Minister Ehud Olmert, as the Winograd Report lays blame at his doorstep, would seem to be eligible for this treatment. Just today, none other than Hezbollah leader Nasrallah, in Beirut, praised (yes, praised) the Zionist Occupation Government for concluding that Olmert deserved blame for the failures of last summer's war. The glee in Nasrallah's pronouncement was palpable, even as he tells the audience that he will "not gloat" !
 
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