Washington Report on Middle East Affairs, March/April 2016, pp. 24-25

Special Report

Gaza Flotilla Survivors File New Lawsuit Against Israel in U.S. District Court

By Ann Wright

Almost six years after Israel Defense Forces commandos attacked the boats of the 2010 Gaza Freedom Flotilla, a second lawsuit against the State of Israel and its officials has been filed in U.S. federal court. 

A groundbreaking civil claim for damages was filed in U.S. District Court for the District of Columbia on Jan. 12, 2016 against the State of Israel for injuries suffered during the attack on a U.S. ship, Challenger I, in international waters on May 31, 2010. Challenger I was sailing as part of a six-ship flotilla seeking to deliver humanitarian aid and medical supplies to the residents of Gaza, who were and are still living under a land and sea blockade imposed by the Israeli government.

The four plaintiffs, three of whom are U.S. citizens, including this author, are seeking compensation for the harm and distress, injuries and losses caused by the attack. Israel has refused to acknowledge responsibility and liability since the 2010 attack and has not paid any compensation to those directly affected. Nor has it returned personal property stolen from the passengers, or the vessel itself, which is still being held in Israel.

In a Jan. 12 press conference at the National Press Club in Washington, DC, plaintiff Huwaida Arraf recounted: “At around midnight, the Israelis radioed us and we gave them the information they asked for. Then, I told them that we were unarmed civilians carrying only humanitarian aid for the people of Gaza, that we were not in Israeli waters, so do not attack us. I repeated it many times. They went quiet for three hours. Then there were helicopters above us. IDF commandos boarded our ship. I was screaming to them, ‘This is an American ship!’ There was shooting all over the place and I was afraid a gun would go off in my face. I was dragged and my head was pounded into the boat. They had me handcuffed and hooded and pinned to the deck. They were really rough, and I was screaming. It was not only terrifying and very violent but completely unnecessary, the way they attacked us, and someone needs to be held accountable. Israel is never held accountable for its human rights violations, and this allows it to continue abusing. We need deterrence. Israel must be told that it cannot continue to injure, maim and kill with impunity.”

Plaintiff David Schermerhorn, calling into the press conference by telephone, said, “Basic rights should be recognized and upheld by our U.S. Courts. We want those among the Israeli authorities responsible for the attack on Challenger I to be held accountable for their egregious actions. They should not be allowed to attack unarmed civilians with impunity, as well as steal humanitarian aid and personal belongings.”

The case is groundbreaking as it relies on an exception in the Foreign Sovereign Immunities Act (FSIA) to sue a foreign State for serious violations occurring in the U.S.—in this case a U.S.-flagged ship that comes within the reach of U.S. law.

As plaintiffs’ counsel Steven Schneebaum explained: “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 U.S. 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 Prof. Ralph Steinhardt, leading international law expert at George Washington University and a 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.”

Sir Geoffrey Nice and Rodney Dixon, UK-based international lawyers representing the plaintiffs in this and other legal actions around world, 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 U.S. citizen who was killed in the raid on the Flotilla.” 

“This is a real test for the international rule of law.”

A report on the attack released by the U.N. 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. 

The non-U.S. plaintiff is a Belgian national. On board the Challenger 1 were 17 passengers from 7 countries: the U.S., UK, Australia, Belgium, the Netherlands, Ireland and Poland. A total of 16 U.S. citizens were on the six ships of the flotilla, including 18-year-old Furkan Dogan, who was killed on the Mavi Marmara by the IDF with five bullets fired at close range. (see April 2011 Washington Report, p. 55). The plaintiffs are all humanitarian activists who have been working to highlight the plight of the Palestinian people for decades. Each suffered physical and emotional harm and distress as a result of the attack. 

Schermerhorn 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. Arraf, a 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, the Belgian citizen, was shot in the face with a rubber bullet which broke her nose. This writer, a veteran of the U.S. Army and Army Reserves and former U.S. diplomat, was assaulted by Israeli soldiers when they detained her and the others on 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.”

In October 2015, the family of Furkan Dogan filed a lawsuit  in the Central District Court of California against former Israeli Prime Minister and Defense Minister Ehud Barak for his role in the attack, in which eight Turkish citizens and one American citizen were executed by Israeli forces and over 50 Turkish passengers were wounded (see Nov./Dec. 2015 Washington Report, p. 42). 

Additionally, the 7th High Criminal Court in Istanbul, Turkey has issued a "red notice" for the arrest of four senior Israeli government officials in a 2012 lawsuit filed in Turkey. The Israeli officials named by the court are Israel's former Chief of Staff Gabi Ashkenazi, former navy chief Eliezer Marom, former military intelligence head Amos Yadlin and former air force intelligence chief Avishai Levy. Due to political considerations dealing with the state of Israel, Turkey’s Ministry of Justice has delayed sending to Interpol the "red notice," much to the consternation of those seeking justice.

The Appeals Chamber of the International Criminal Court (ICC) ruled in November 2015 that the Office of the Prosecutor must review its decision to close a preliminary examination into Israel’s attack on the 2010 Gaza Freedom Flotilla. The case was brought to the ICC by the Union of the Comoros, the country where the Mavi Marmara was registered. In November 2014, ICC Chief Prosecutor Fatou Bensouda had closed her examination into the case, saying it was without “sufficient gravity” to justify further action, but she did write that there was a reasonable basis to believe Israel committed war crimes. However, “Without in any way minimizing the impact of the alleged crimes on the victims and their families, I have to be guided by the Rome Statute, in accordance with which, the ICC shall prioritize war crimes committed on a large scale or pursuant to a plan or policy.”  But the Appeals Court found she had made errors in her decision and ordered her to review the case. ◙

Ann Wright is a 29-year veteran of the U.S. Army/Army Reserves and retired as a colonel. She also served 16 years as a U.S. diplomat, resigning from the U.S. government in March 2003 in opposition to the war on Iraq. She was a passenger on the 2010, 2011 and 2015 Gaza Freedom Flotillas and is an organizer for the 2016 Women’s Boat to Gaza.