D.C. Circuit dismisses suit against retired IDF General for shelling UN compound.

• Author: Crook, John R.
• Position: Israeli Defense Forces

In February 2008, the U.S. Court of Appeals for the D.C. Circuit affirmed dismissal of a class action suit against General Moshe Ya'alon, the retired head of intelligence of the Israeli Defense Forces (IDF). (1) The suit stemmed from Ya'alon's alleged involvement in the IDF's April 1996 shelling of a UN peacekeepers' compound in Qana in south Lebanon. Several hundred Lebanese civilians were seeking shelter in the compound. The shelling killed over a hundred civilians, injured many others, and injured four Fijian peacekeepers.

The plaintiffs alleged that Israeli helicopters observed civilians in the UN compound; that their reports put General Ya'alon on actual notice of the civilians' presence; and that he then failed to act to prevent the shelling. Plaintiffs contended this failure violated principles of international law applicable under the Alien Tort Statute (2) (ATS) and the Torture Victims Protection Act (3)(TVPA), and constituted war crimes, extrajudicial killing, crimes against humanity, and cruel, inhuman, or degrading treatment or punishment. (Plaintiffs alleged that General Ya'alon bore command responsibility for the shelling, but the court of appeals noted that the complaint "offers no factual allegation as to how he, as head of intelligence, fit in the chain of command of the operational units conducting the shelling.") (4)

The district court dismissed the action for lack of subject matter jurisdiction under the Foreign Sovereign Immunities Act (5) (FSIA). Inter alia, it rejected plaintiffs' arguments that the general acted outside of the scope of his official authority by engaging in an unlawful, indiscriminate attack and that there could not be sovereign immunity for acts that violated jus cogens. The court gave effect to a submission by the Israeli ambassador to the United States stating the General Ya'alon was acting in his official capacity at the time of the shelling. The lower court also denied plaintiffs' demand for jurisdictional discovery. (6)

The appeals court initially upheld the lower court's application of the FSIA to General Ya'alon.

Instead of suing the foreign state of Israel, something prohibited by the FSIA in the absence of allegation of any of the statutory exceptions, Plaintiffs sued a retired Israeli general with at most a tangential relationship to the events at issue who made a convenient visit to the District of Columbia. But the FSIA is not written so narrowly.... It applies to foreign states, their...