Ali Saadallah Belhas et al. v. Moshe Ya'alon

Court	United States Court of Appeals for the District of Columbia Circuit, United States
Case number	07-7009
Decision title	Appeal from the United States District Court for the District of Columbia
Decision date	15 February 2008
Parties	Ali Saadallah Belhas Saadallah Ali Belhas Ibrahim Khahil Hammoud Raimon Naseeb Al Haja Hamidah Sharif Deeb Ali Mohammed Ismail Hala Yassim Khahil Moshe Ya’alon
Categories	Crimes against humanity, War crimes
Keywords	Command responsibility; (sovereign) immunity; Qana; United Nations compound; war crimes against civilians; crimes against humanity
Links	Appeals Judgment
Other countries involved	Israel Lebanon

Summary

On 4 November 2005, a complaint was filed before the U.S. District Court for the District of Columbia on behalf of people injured or killed during the bombing of the UN compound (an area protected by the UN) in Qana on 18 April 1996 that killed more than 100 civilians and wounding hundreds. The plaintiffs claimed that General Moshe Ya’alon, the head of the IDF Army Intelligence who launched the bombing, should be held responsible for the decision to bomb the UN compound.

On 14 December 2006, the District Court dismissed the case, finding that Ya'alon could not be sued because the Court lacked jurisdiction to prosecute Ya’alon (as he enjoyed immunity under the Foreign Sovereign Immunities Act) and denied the need for jurisdictional discovery.

On 15 February 2008, the U.S. Court of Appeals for the District of Columbia Circuit upheld the decision of the District Court.

Procedural history

On 4 November 2005, a complaint was filed against General Moshe Ya’alon, who was the head of the Army Intelligence of the Israel Defense Forces (IDF) on 18 April 1996 when the IDF shelled the UN compound in Qana, Lebanon. The complaint was filed before the U.S. District Court for the District of Columbia on behalf of those who were injured or killed during the shelling. The plaintiffs alleged that the acts committed during the shelling of the UN compound in Qana constitute war crimes, extrajudicial killings, crimes against humanity, and cruel, inhuman or degrading treatment or punishment. The plaintiffs further claimed that General Ya’alon was involved in the decision to attack the compound and that he had command responsibility for the attack. An additional claim was that the attacks continued even though the UN had informed the IDF that civilians were inside the compound.

On 14 December 2006, the District Court issued its Opinion and dismissed the case, finding that General Ya'alon could not be sued for the shelling because he acted in his official capacity and therefore enjoyed immunity under the Foreign Sovereign Immunities Act (FSIA).

On January 12, 2007, plaintiffs filed their notice of appeal and on August 30, 2007 plaintiffs’ opening brief was filed.

On August 31 2007, the Center for Constitutional Rights filed an amicus brief in support of the plaintiffs.

Legally relevant facts

In April 1996, civilians who found themselves threatened by the bombarding of villages in southern Lebanon by the IDF sought refuge in various UN compounds. More than 800 of them, mostly women, children and elderly persons, went to the UN compound in Qana. This compound was subsequently attacked by the IDF and more than 100 civilians were killed and hundreds were wounded.

The Israeli ambassador to the United States wrote a letter stating that “anything [General Ya’alon] did in connection with the events at issue in the suit[] was in the course of [his] official duties, and in furtherance of official policies of the State of Israel. To allow a suit against [General Ya’alon] is to allow a suit against Israel itself.” On the basis of this letter, the District Court dismissed the case.

Core legal questions

Did the District Court err in holding that General Ya’alon enjoyed immunity under the FSIA?

Specific legal rules and provisions

Foreign Sovereign Immunities Act of 1976 (Title 28 U.S. Code, Chapter 97):

Section 1602 - Findings and declaration of purpose
Section 1603 - Definitions
Section 1604 - Immunities of a foreign state from jurisdiction
Section 1605 - General exceptions to the jurisdictional immunity of a foreign state

Torture Victim Protection Act of 1991 (Title 28 U.S. Code, Chapter 85, Section 1350)

Court's holding and analysis

On 15 February 2008, the U.S. Court of Appeals for the District of Columbia affirmed the decision of the District Court. In particular, the Court of Appeals held that during the period under consideration General Ya’alon acted in his official capacity. Moreover, the State of Israel had approved that General Ya’alon’s actions were performed in his official capacity. Therefore, the Court of Appeals held that General Ya’alon enjoyed immunity under the FSIA. (pp. 6-7).

Furthermore, the Court of Appeals held that the complaint did not allege that General Ya’alon acted in his individual capacity. In that regard, the Court of Appeals held that ‘any argument that he acted in an individual capacity rendering him unprotected by the FSIA is meritless’ (p. 8).

In addition, the Court of Appeals rejected the appellants’ argument that General Ya’alon should not be given protection because he acted contrary to jus cogens norms of international law. The reasoning was that the ‘FSIA contains no unenumerated exception for violations of jus cogens norms’ (p. 13).

With regard to appellants’ arguments that the FSIA should not bar suit because the Torture Victim Protection Act (TVPA) abrogates the FSIA to the extent the latter applies to individuals, and that individuals are exempted from the FSIA when they are sued in their personal capacities, the Court of Appeals held that the legislative history of the TVPA shows that it is not meant to create an exception to the FSIA or to override it. Therefore, the TVPA is subject to all the provisions of the FSIA (pp. 16-17).

Lastly, the Court of Appeals held that adjudication on jurisdictional discovery is precluded because any such adjudication would ‘frustrate the significance and benefit of entitlement to immunity from suit’ (p. 18).

Further analysis

J. M. Foster, ‘Introductory Note To Belhas V. Ya'alon, 515 F.3d 1279 (D.C. Cir. 2008)’, International Legal Materials, March 2008, Vol. 47(2), pp. 141-143.

‘D.C. Circuit Dismisses Suit against Retired IDF General for Shelling UN Compound’, The American Journal of International Law, July 2008, Vol. 102(3), pp. 643-645.

B. M. Seener, ‘Targeting Israelis via International Law
Israel and Its Enemies’, Middle East Quarterly, Fall 2009, pp. 43-54.

G. Ogilvy, ‘Belhas v. Ya'Alon: The Case for a Jus Cogens Exception to the Foreign Sovereign Immunities Act’, Journal of International Business and Law, 2009, Vol. 8, pp. 169-195.

A. N. Schupack, ‘The Arab-Israeli Conflict And Civil Litigation Against Terrorism’, Duke Law Journal, 2010, Vol. 60, pp. 207-247.

Instruments cited

Foreign Sovereign Immunities Act of 1976, United States

Torture Victim Protection Act of 1991, United States

Additional materials

‘Belhas v. Ya’alon’, Center for Constitutional Rights.

Y. Benhorin, ‘US compensation lawsuit against Ya'alon dropped’, Ynet News, 20 December 2006.

Social media links

‘Qana, Ten Years Later’, US Campaign to End the Israeli Occupation.

Center for Constitutional Rights, ‘Lawsuit filed against Israeli General in U.S. Court for war crimes’, The Electronic Intifada, 15 December 2005.

W. Youmans, ‘Seeking justice for Qana’s victims’, Information Clearing House, 29 April 2006.

‘Survivors of 1996 Qana Massacre Sue Israel Military Chief For War Crimes’, Democracy Now, 1 August 2006.

R. Alford, ‘FSIA and a Jus Cogens Exception for Acting Within the Scope of Authority’, Opinio Juris, 26 February 2008.

B. van Schaack,‘A Blow To Foreign Sovereign Immunity’, IntLawGrrls, 14 January 2009.

‘Moshe Bogie Yaalon – suspected of war crimes and crimes against humanity’, Wanted for War Crimes Blogspot, 11 February 2009.

S. Akram, ‘Legal Strategies towards Accountability under International Law: Civil Tort Claims and Related Mechanisms in US Courts’, BADIL, 2009.