A civil claim for damages has been filed in US District Court for the District of Columbia against the State of Israel for injuries suffered during the attack on a US ship, Challenger I, in international waters on 31 May 2010. Challenger I was sailing as part of a Flotilla seeking to deliver humanitarian aid and medical supplies to the residents of Gaza who were and are still living under a blockade imposed by the Israeli Government.
The four Plaintiffs, three of whom are US citizens, are seeking compensation for the harm and distress, injuries and losses caused by the attack. Israel has refused to acknowledge responsibility and liability in all the time since the attack and not paid any compensation to those directly affected. The US ship has never been returned by Israel and is still being held there.
Plaintiff David Schermerhorn said “Basic rights should be respected and upheld by our US courts. 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 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, in this case a US flagged ship that comes within the reach of US law.
US Counsel for the Plaintiffs, Steven Schneebaum, said “States are generally immune from suit in United States courts. 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 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 U.S. citizens. The attack on Challenger I was a patent violation of international law, including the laws of war, human rights, and the law of the sea. 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, emphasized that “This is a real test for the international rule of law - the rights of citizens to protest peacefully should be vigorously protected. 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 Flotilla amounted to war crimes.
Three of the four Plaintiffs are US citizens, and the other is a Belgian national. The Plaintiffs 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 that exploded one foot from his head, causing permanent partial loss of sight in one eye. Huwaida Arraf, a dual US and Israeli national and US lawyer and human rights activist, 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. Margriet Deknopper, a Belgian citizen, was shot in the face with a rubber bullet which broke her nose. Mary Ann Wright, a veteran of the US Army and Army Reserves and former US diplomat, was assaulted by Israeli soldiers when they detained her and all others on boarding the ship.
Hakan Camuz of Stoke & White LLP (London) who act for the passengers on all ships in the Flotilla highlighted that “The Plaintiffs, like all those on the 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. But 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.”