Judge Finds Israel Immune From Humanitarian Suit

WASHINGTON (CN) – A group of medics, reporters and humanitarian workers who claim they were brutalized by Israeli soldiers while on a goodwill mission to the Gaza Strip cannot bring legal claims against the foreign state, a federal judge ruled.

David Schermerhorn, Mary Ann Wright, Huwaida Arraf and Margriet Denkopper brought the suit against Israel and its ministries of defense, foreign affairs, justice and public security, claiming Israeli soldiers forcibly boarded their ship and assaulted them in 2010.

The ship was a part of a “Gaza Freedom Flotilla.” The flotilla’s purpose, according to U.S. District Judge Amy Berman Jackson’s ruling issued Wednesday, was to “draw international public attention to the situation in the Gaza Strip and the effect of the [Israeli naval] blockade.” The plaintiffs also say they came to break the blockade and deliver humanitarian supplies to people on shore.

But the humanitarian mission didn’t go as planned. Instead, Schermerhorn, Wright, Arraf and Denkopper claim Israeli soldiers met them with an aggressive show of force as their vessel – which was one of six in the fleet – approached the blockade.

Before boarding the ship, Challenger I, soldiers fired at least one stun grenade, which exploded just a foot from Schermerhorn’s face, “leaving him partly blinded in one eye,” the ruling states.

As soldiers made their way aboard, Denkopper allegedly was shot in the face with a rubber bullet, breaking her nose. Another passenger was shot five times in the back with rubber bullets before the soldiers detained all passengers, according to court records.

Arraf alleges she was yanked off the stairs, groped and then forced onto the deck where a solider slammed her head against the floor and proceeded to stand on it.

The allegedly violent exchange continued after the soldiers commandeered the boat and guided it into the port of Ashdod. As they cruised toward the port just south of Tel Aviv, the plaintiffs say they were “assaulted, handcuffed, forcibly detained’ and “denied toilets and medical care.”

According to Wednesday’s ruling, which was filed in Washington, D.C., federal court, the soldiers proceeded to confiscate the group’s personal property, including media equipment and film footage. Neither the items taken nor the ship itself were returned.

Schermerhorn, Wright, Arraf and Denkopper took a bold step bringing the suit against Israel. The Foreign Sovereign Immunities Act presumes that a foreign state is immune from the jurisdiction of U.S. courts, unless a certain exception applies.

The plaintiffs argued their case should be an exception to the rule since their vessel bore an American flag, which they said made it subject to U.S. rights and protections.

Levying accusations of war crimes in violation of international law, they claimed the Israeli soldiers were guilty of torture, cruel and inhumane treatment, mutilation and maiming and intentional bodily injury. They also brought claims of arbitrary arrest and detention, false imprisonment, assault and battery, emotional distress and conversion.

But Judge Jackson dismissed the case Wednesday for lack of subject matter jurisdiction, finding that “Israel has not waived its sovereign immunity under either the tort exception or the terrorism exception to the Foreign Sovereign Immunities Act.”

Under 28 U.S.C. 1605, which stipulates exceptions to jurisdictional immunity, “a foreign state shall not be immune from the jurisdiction of the United States… in which money damages are sought against a foreign state for personal injury or death or damage or loss of property, occurring in the U.S. and caused by tortuous act or omission of that foreign state.”

Jackson said all elements of the law must be satisfied for the plaintiffs’ allegations of war crimes to stand. She wrote that since Israel is not designated as a state sponsor of terrorism, nor was it at the time of the event or as a result of the ordeal, the case must be dismissed.

As precedent, Jackson cited Persinger v. Islamic Republic of Iran. In that 1984 ruling, the D.C. Circuit determined that a claim brought against Iran for the American embassy hostage crisis of 1979 wouldn’t hold up.

“Because ‘[t]he ground upon which our Embassy stands in Tehran does not fall within [the statutory] definition, the court concluded that ‘Iran enjoy[ed] sovereign immunity’ in that case,” Jackson wrote. “Applying this reasoning, the definition of ‘in the United States’ would not include an American vessel in international waters.”

Schermerhorn, Wright, Arraf and Denkopper tried to distinguish their case from Persinger by arguing that unlike an embassy, which is in a fixed position within a territory of the receiving state, a flagged vessel should be “deemed to be within the territory of a country whose flag is flown onboard as a matter of international law.”

Jackson conceded that even though a “’floating island’ theory may be ‘a principle that antedates the Republic,’” the U.S. Supreme Court has ruled that the theory “is a figure of speech, a metaphor.”

According to Jackson’s ruling, the Supreme Court made clear that “when the law uses the term ‘territory’ in a ‘physical and not a metaphorical sense,’ it is referring to ‘areas or districts having fixity of location and recognized boundaries.’”

That standard was decided in Cunard S.S. Co. v. Mellon, a 1923 case in which the high court held that a U.S.-flagged vessel was not in the “territory” of the United States.