By Haggai Carmon

The Tel Aviv District Court has rejected an argument by the PLO and the Palestinian Authority that they are protected by sovereign immunity from a lawsuit in torts. In a detailed decision (Civil Case 5984/07 The Palestinian Authority et al. v. Yosef Azoz (District Court for the Central Region, Dr. Ahikam Stoler, Judge), the Court has ruled that sovereign immunity cannot be granted for acts of terror and murder as they are not political acts which, under different circumstances, could bar Israeli courts’ jurisdiction. The lawsuit sought damages resulting from a terrorist attack in the Tel Aviv Sea Food Market restaurant that had left three people dead and many injured. One of the injured sued for bodily injuries he had suffered. Defendants, the Palestinian Authority, the Palestinian Liberation Organization and Marwan Bergouti moved to dismiss the lawsuit on multiple grounds, among them sovereign immunity and nonjusticiability. They claimed that they enjoyed sovereign immunity because the allegations contained in the Complaint raise governmental and political issues, and involve issues of international relations between the Palestinian Authority and the State of Israel, including Accords signed, and therefore an Israeli court lacks jurisdiction to hear the lawsuit.

The Tel Aviv Court’s decision rendered on November 23, 2008, came just under two months after the federal District Court for the District of Columbia held Syria as a state sponsor of terrorism responsible for actively supporting Al Qaeda in Iraq in the kidnapping and killing of two Americans ( Francis Gates, et al., v. Syrian Arab Republic, et al). Under a recent amendment to the American Foreign Sovereign Immunity Act (28 USC §1605 a) the Court has awarded damages against Syria although the lawsuit was originally brought under the Flatow Amendment. The Flatow Amendment did not create a private right of action against a foreign state, but only against its leaders. The new amendment to the Foreign Sovereign Immunity Act created such a right when a state is designated by the State Department as a sponsor of terrorism is sued. The new amendment makes it easier for victims of state sponsored terrorism to recover their damage, as they can now sue the sponsoring state itself rather then only its leaders. The new amendment also enables the court to award punitive damages, which are denied by the law in all other circumstances.

The issue of nonjusticiability in connection with political decisions was successfully raised by Advocate Ittai Carmon and me in a Tel Aviv Court on behalf of the United States in Aronov v. U.S, where plaintiffs attacked a U.S consul’s decision that allegedly damaged them economically. In Aronov, the court  accepted the U.S argument that the alleged acts were political in nature, and therefore cannot become a subject of review by an Israeli court. The court dismissed the Complaint and no appeal has been filed.

by Haggai Carmon

The Israeli Government introduced a Bill to the Knesset to regulate Israeli courts’ jurisdiction over foreign states sued in Israel. The Bill passed the first Reading and was transferred to the Knesset’s Judiciary Committee for discussion, review and vote before submitting the Bill for final Reading and approval by the Knesset.
I took special interest in the Bill and concluded was that some articles could be particularly damaging to foreign states sued in Israeli courts. Therefore, I appeared last month before the Judiciary Committee and expressed my professional reservations.
The Committee heard my lengthy presentation and at the conclusion, had adopted my reservation regarding a power originally given to the Israeli courts to issue mandamus and injunctions against foreign states. That Article was deleted from the Bill. Thereafter, the Bill was approved by the Committee for a final Reading.
Although a major damaging Article was removed, there are still potentially damaging articles in the Bill that are very important for foreign states, particularly regarding Labor Court matters, Torts claims and claims resulting from visiting foreign military.

The Italian appeal Court of Cassations in Rome upheld torts lawsuits filed by Italian soldiers who were interned and forced into labor by the Nazis. Germany raised a sovereign immunity defense. Germany, which has paid out billions in reparations to Holocaust survivors, refused a claim of 60 million euros compensation to 600,000 Italian soldiers who were interned after Fascist Italy declared a truce in September 1943.

As a result, the Nazis deported many of the Italian soldiers to Germany to work in factories without pay. In court, Germany argued that the soldiers were prisoners of war and therefore there was no basis for the claim. On the other hand, Germany argued, that it compensated Italian civilians who were forced into work. 50 of claims against Germany were allowed, because the deportation of the Italian forces was a crime against humanity.

The German Foundation established to compensate forced laborers, insisted that the Italian court had no jurisdiction over the foundation. The plaintiffs failed in similar lawsuit in Berlin filed in 2004 against the Memory, Responsibility and Future Foundation.

The foundation paid out 1.9 million euros to 3,395 Italians who were forced as civilians to work in Nazi Germany.