Matar v. Dichter

Avraham Dichter

On April 16, 2009, the US Court of Appeals for the Second Circuit upheld a judgment in favor of our client Avraham Dichter (Matar, et al. v. Dichter, Former Director of Israel's General Security Service). The case, argued by partner Robert Weiner, affirmed the holding of the District Court in New York that Mr. Dichter was immune from liability.

The Appellants alleged that they suffered injuries or lost family members in 2002 when Israel bombed a Gaza apartment complex in an attack on the military leader of Hamas. The Appellants claimed that Mr. Dichter, as head of the Israeli Security Agency, had participated in the decision to launch the attack. They charged Mr. Dichter with crimes against humanity and war crimes, and sought damages under the Alien Tort Statute and the Torture Victim Protection Act.

Our attorneys won dismissal of the claims in the District Court on the grounds that sovereign immunity protected Mr. Dichter against liability for any actions he took on behalf of the State of Israel and that the case presented political questions unsuitable for resolution by a court.

On appeal, the Appellants argued that the Foreign Sovereign Immunities Act (FSIA) did not extend to former officials. Mr. Dichter was no longer an official of the Israeli government when the Appellants first sued, although he subsequently rejoined the government as a Cabinet Minister. The Court of Appeals held that it did not need to decide whether the FSIA applied because, "even if Dichter, as a former official, is not categorically eligible for immunity under the FSIA,  . . . he is nevertheless immune from suit under common-law principles that pre-date, and survive, the enactment of that statute." The Court observed that the State Department, which filed an amicus brief in the case, "had urged the courts to decline jurisdiction over appellants' suit, and under our traditional rule of deference to such Executive determinations, we do so." 

This decision is the Firm's fifth such victory for Israel and Israeli officials. Like the previous decisions, it was a forceful rejection of efforts to insert US courts into foreign political disputes. This decision prevents the US courts from being used as a platform for partisans seeking to challenge the official policies of sovereign allies like Israel.

Our attorneys won the District Court decision dismissing claims against Mr. Dichter in May 2007. The firm also won a parallel case before the District Court of the District of Columbia in December 2006. That Court rejected claims of war crimes and crimes against humanity brought by Lebanese plaintiffs against General Moshe Ya'alon, former head of the Israel Defense Force, arising from an artillery battle between Israel and Hezbollah in 1996. The DC Circuit affirmed in February 2008. (Belhas v. Ya'alon, Former Head of Israeli Army Intelligence.)

The first of our five victories in these cases came in 2005. In Doe v. State of Israel, the District Court in the District of Columbia granted the Firm's motion to dismiss claims against Israel, several cabinet ministries, the army, and senior Israeli officials, attacking Israel's policies in the West Bank and Gaza.

Mr. Weiner was lead counsel in each of these victories.

Our attorneys have significant experience in litigation involving the Alien Tort Statute and Foreign Sovereign Immunities Act. In addition, on April 13, former State Department Legal Adviser John B. Bellinger III joined the firm as a partner in its international and national security practices. Mr. Bellinger brings extensive additional experience to the firm’s ATS and FSIA practices.

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