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.

The U.S Foreign Sovereign Immunities Act grants procedural immunity to foreign governments against civil lawsuits. There are however exemptions. Among them are lawsuits resulting from state-sanctioned assassinations. The following are two recent examples where sovereign immunity claims were denied.

The family of Orlando Letelier, former Chilean ambassador to the United States, was allowed to sue the Chilean government after it was established in a separate criminal trial that the ambassador had been killed in a Washington bombing involving four senior officials of the Chilean intelligence services and two Cuban exiles. A federal judge in Washington found that Chile did not qualify for immunity because the assassination plot had been carried out by its intelligence agents targeting critics of Chilean dictator Augusto Pinochet.

In its decision, the court said a foreign government “has no discretion to perpetrate . . . action that is clearly contrary to the precepts of humanity as recognized in both national and international law.”

In another case, a lawsuit filed by the widow of Henry Liu, a Chinese journalist and critic of the Taiwan government survived a dismissal motion. A federal court ruled that her husband had been slain in California by two Chinese gang members acting for Wong Hsi-ling, the former director of Taiwan’s Defense Intelligence Bureau. An appeal to the U.S. Court of Appeals for the Ninth Circuit failed.

The common denominator to these recent rulings is simple: Plaintiffs must show that their injury was resulted from the criminal conduct or another behavior that cannot be regarded as a normal government operation.

Clearly, U.S foreign sovereign immunity law does not protect territorial torts committed by foreign countries, unless there is a showing that the foreign sovereign applied “discretionary function” in its act or omission. However, injury or death caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act, if the foreign state is designated as a state sponsor of terrorism by the State Department. That explains why Libya failed in its attempt to block lawsuits resulting from the bombing of Pan Am Flight 103 over Lockerbie, Scotland, on December 21, 1988, killing 270 people. At the beginning, however, a federal court in New York dismissed the lawsuit, citing the Foreign Sovereign Immunities Act. Nonetheless, the families of Pan Am victims lobbied Congress, which passed, and amendment to the law, creating another exception to sovereign immunity: aircraft sabotage and other criminal acts. Thereafter, the families filed their lawsuit again and won. Libya negotiated a $2.7 billion settlement.