Four Passengers on Challenger 1 in 2010 Gaza Freedom Flotilla Sue Israeli Government in U.S. Federal Court
Three Americans and a Belgian national sued the government of Israel in U.S. federal court in January 2016, seeking compensation for injuries suffered in a deadly 2010 confrontation between Israeli commandos and activists attempting to breach Israel’s naval blockade of the Gaza Strip.
The plaintiffs in the lawsuit, filed in Washington, DC, were aboard the U.S.-flagged Challenger 1, which was carrying media equipment and 17 passengers and crew members. American plaintiffs David Schermerhorn, Mary Ann Wright and Huwaida Arraf, a dual U.S.-Israeli citizen, and Belgian national Margriet Deknopper suffered injuries that included partial loss of sight when a stun grenade exploded inches from one of them and a broken nose when another was hit by a rubber bullet.
“The attack on the high seas was unjustified and illegal under international law,” lawyer Steven M. Schneebaum of Washington wrote in a 21-page complaint, which alleged that the military operations injured more than 150 protesters and included torture, cruel or degrading treatment, arbitrary arrest and assault.
Under U.S. law, the Foreign Sovereign Immunities Act generally bars lawsuits against foreign governments, except for certain circumstances, including terrorist acts against Americans by U.S.-designated state sponsors of terrorism.
Ralph G. Steinhardt, a professor of international law at George Washington University Law School and a member of the plaintiffs’ legal team, said the suit may turn on whether a court finds that the action against a U.S.-flagged ship in international waters should be treated as an assault in the United States or that Israel’s conduct was so egregious that it is not entitled to immunity, even in the absence of a U.S. terrorism designation.
On 25th January 2017 we received the Court’s decision to agree to Defendant’s motion to dismiss have been granted. There was no oral hearing and decision was made on paper. Plaintiffs have filed our notice of appeal with the Court of Appeal.
Links to the documents in this case are below:
PLAINTIFFS’ LEGAL COMPLIANT AGAINST THE GOVERNMENT OF ISRAEL
STATEMENT OF INTEREST OF THE UNITED STATES
PLAINTIFFS’ RESPONSE TO THE STATEMENT OF INTEREST OF THE UNITED STATES
PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS
COURT DECISION TO DISMISS CASE AS THE STATE OF ISRAEL IS IMMUNE FROM SUIT, AND THAT IT WAS THEREFORE WITHOUT JURISDICTION TO ENTERTAIN EVIDENCE OR ARGUMENT ON THE MERITS OF THE CASE.
COURT ORDER TO DISMISS
PLAINTIFF’S NOTICE OF APPEAL
STATEMENT OF ISSUES TO BE RAISED ON APPEAL
OPENING BRIEF OF APPELLANTS UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
JOINT APPENDIX FOR OPENING BRIEF OF APPELLANTS UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT (LISTING OF ALL THE DOCUMENTS, LAWYERS, ETC FOR THIS CASE)
STATE OF ISRAEL’S APPELLEES BRIEF IN RESPONSE TO PLAINTIFF’S (BOAT PASSENGERS) APPEAL TO DISTRICT COURT’S RULING
PLAINTIFF’S (BOAT PASSENGERS) BRIEF OF APPEAL TO DISTRICT COURT’S RULING THAT THE STATE OF ISRAEL IS IMMUNE FROM SUIT, AND THAT IT WAS THEREFORE WITHOUT JURISDICTION TO ENTERTAIN EVIDENCE OR ARGUMENT ON THE MERITS OF THE CASE.
Audio of the lawyers during the October 16, 2017 US District of Washington, DC Court of Appeals hearing of our appeal from the case being dismissed at the trial court level. Steven M. Schneebaum, of Washington, DC was our attorney who argued our case in the Court of Appeals. Stoke and White of London were the lead attorneys with assistance from George Washington Law School professor Ralph Steinhardt.
More Information about the case:
Schermerhorn, et al. v. The State of Israel, et al
Questions and Answers
Q What is this case about?
A Israeli Defense Forces attacked a U.S.-flagged ship, The Challenger I, on May 31, 2010, while it was navigating in international waters. The Challenger I was part of a flotilla seeking to deliver humanitarian aid and medical supplies to the residents of the Gaza Strip, who were and are still living under a blockade imposed by the Government of Israel.
Q Who are the plaintffs?
A. They are four individuals, three of whom are American citizens, who are seeking compensation for the injuries and losses they suffered in the attack, which they allege violated governing rules of international law. They were assaulted and beaten. They were hooded, handcuffed and violently detained. One suffered partial blindness when a stun grenade thrown at him exploded one foot in front of his face. Another was shot in the face with a rubber bullet. One plaintiff’s head was slammed on deck of the ship and stood upon. Israel has refused to acknowledge its responsibility for the injuries, and not offered any compensation to the victims.
The Challenger I is still being held in Israel, and the U.S. Government has taken no positive steps to promote the claims of the plaintiffs in this case or the American owners of the ship.
Q What legal issue does the case present?
A In general, foreign governments may not be sued in the courts of other countries, under the
doctrine of sovereign immunity. U.S. law, however, denies sovereign immunity to defendants in certain specific situations. Among those are instances in which the foreign government or its agents have unlawfully caused personal injuries in the United States, or where they engaged in certain violent acts, like torture, that come within the statutory definition of “terrorism.”
The four plaintiffs – humanitarian activists who have been working to highlight the plight of the residents of Gaza for decades, and who suffered serious physical and emotional harm as a result of the attack – allege in this case that both of these criteria are satisfied, and that therefore Israel is not entitled to immunity and must answer to them in a U.S. court. The plaintiffs contend that torts committed on U.S. vessels in international waters happened “in the United States,” and that Israel is legally responsible for them, even if it has never been designated a “state sponsor of terrorism.”
Their case is grounded in the congressional determination that U.S. nationals who are victims of such acts as torture – perpetrated by the agents of any state, friend or foe – are entitled to have their claims heard in court.
Q What is the current posture of the case?
A The specific allegations on which the plaintiffs’ case rely have never before been addressed by a judge in this country: this is a case of first impression. In the U.S. District Court for the District of Columbia, Judge Amy Berman Jackson disagreed with the plaintiffs’ legal theories, and dismissed the case. It is now before the U.S. Court of Appeals for the District of Columbia Circuit. The four plaintiffs are asking the Court of Appeals to proclaim that the abuses to which they were subjected on a U.S vessel on the high seas are unacceptable in international and in American law.
They argue that the exceptions set out by Congress in the Foreign Sovereign Immunities Act are broad enough to open the courthouse doors to them.
Q Isn’t foreign policy outside the jurisdiction of the courts?
A. The plaintiffs are not asking the court to adjudicate foreign policy. They are not asking the court to declare Israel a terrorist state, or to determine the legality of the blockade of Gaza. Rather, they are seeking relief for a violent, unprovoked, and unjustified assault committed on board a U.S.-flagged vessel in international waters. If they have no recourse in this country’s courts, they will be totally without a viable remedy for the wrongs done to them, and the signal will be sent that American vessels may be boarded and its passengers abused by agents of foreign governments with no fear of legal liability.
Such as result would be bad law and bad policy. The Schermerhorn case is important to the four plaintiffs, but it should also be important to anyone concerned about the accountability of states for the irresponsible and unlawful conduct of those acting in their names.
Q What will happen next in this case?
A The plaintiffs are asking to have the case sent back to the district court, so that it can take the next steps to get the dispute ready for trial. The plaintiffs will have the burden of proving, by a preponderance of the evidence, that they were injured as they say they were: standard procedure in civil cases. And through depositions and discovery, they will be entitled to explore Israel’s defenses against legal liability for their injuries. They will, in other words, have their day in court, which has been the goal of this exercise from the beginning.
October 16, 2017