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High Court hears appeal from Lebanese terrorist
By YONAH JEREMY BOB
01/30/2013
Mustafa Dirani seeks to sue the state for civil damages; Dirani’s attorney: Even Eichmann would have had the right to sue the state.
 
An expanded panel of seven High Court justices, presided over by Supreme Court President Asher D. Grunis, heard a petition on Tuesday to overturn its own ruling from July 2011 in which it upheld the right of Lebanese terrorist Mustafa Dirani to sue the state for civil damages.

The 2011 panel of three justices had not ruled on the merits of the claim itself, but only on whether the lawsuit could even be pursued as a matter of law.

Dirani, a former leader of Lebanese Shi’ite terrorist group Amal, was believed to have had personal knowledge of the whereabouts of kidnapped IAF navigator Lt.-Col. Ron Arad.

Arad – who is still missing and assumed dead – was captured by Amal forces in October 1986 during a mission to attack PLO targets near Sidon in Lebanon. Dirani was captured by Israel in 1994 and returned to Lebanon in 2004 in a prisoner-exchange deal.

The justices did not issue a decision on Tuesday, but the hearing grew heated at times.

At one point, Justice Elyakim Rubinstein pressed Dirani’s lawyer, Zvi Rish, to name a worst-case scenario where a foreign enemy could not sue the state.

“In what case would this not come about, meaning, there would not be a right to sue?” he asked. “If [Adolf] Eichmann had been tortured and afterward he was somewhere outside of Israel and tried to sue?” Rish tried to sidestep the issue saying, “Your honor puts me in a very difficult situation, it’s a personal question. I am second-generation [survivor] from the Holocaust.”

So am I, answered Rubinstein, who persisted nevertheless, asking whether there was any line that Rish would draw where a person’s actions against the state would mean he forfeited his right to sue.

Ultimately, Rish replied, “Even Eichmann, if he had been tortured, would have a right to sue those who had tortured him, both criminally and civilly.”

Tuesday’s hearing was a rare “additional hearing” or appeal to a broader panel which the High Court grants in only in cases that involve fundamental rights and values of the state.

The previous High Court decision upheld a Tel Aviv District Court decision allowing Dirani to continue with his NIS 6 million damages suit against the state.

In 1994, then-prime minister Yitzhak Rabin ordered Israeli commandos to raid Dirani’s house in Lebanon. The terrorist leader was brought to Israel and held in administrative detention.

In 2000, Dirani filed a NIS 6 million suit in the Tel Aviv District Court, charging that interrogators had raped him, sodomized him with a club, kept him naked for weeks and humiliated him in an effort to extract information about Arad’s whereabouts.

Dirani was released in 2004 as part of a prisoner exchange with Hezbollah, despite a lawsuit by Arad’s family to try to prevent his release. In return, Hezbollah returned kidnapped Israeli businessman Elhanan Tannenbaum and the bodies of three IDF soldiers killed by Hezbollah in October 2000.

Dirani had announced his intention to continue to work for Hezbollah on his return to Lebanon, and the state appealed to the Tel Aviv District Court, asking for Dirani’s lawsuit to be canceled. However, in 2005 the Tel Aviv District Court rejected the state’s request to cancel the lawsuit, and the state appealed to the Supreme Court.

The state had argued that Israel should act in accordance with Anglo-American law, which prohibits an enemy of the state residing in a hostile country from suing the state.

However, in the July 2011 proceedings, Justices Ayala Procaccia and Salim Joubran voted by a 2-1 majority over Justice Hanan Melcer to uphold the lower court’s decision to allow Dirani to continue with his lawsuit.

In the 2011 judgment, the justices wrote that in cases of alleged human rights violations by the state, it is “justified that the issue will be clarified before the state’s law courts.”

They went on to say that “this statement is also correct in regard to opening the courts’ doors to hostile parties in order to hear their claims regarding damages caused to their rights by state authorities.

“This is not a danger to the state’s power, but is actually a guarantee of its moral and ethical strength,” they wrote.

As a result of the ruling, Dirani can now continue with his lawsuit – even though he remains in Lebanon.

In the state’s petition, state attorneys Orit Son and Na’ami Zemeret wrote that the High Court’s ruling that the courts should “clarify claims made by an enemy” has “serious implications regarding an enemy’s claims in any legal proceedings and against any litigant.

“To allow an enemy of the state, located outside the state’s borders, to use legal processes as a weapon against the state, is difficult, novel and damages the sense of justice,” the state prosecutor wrote. “Moreover, hearing civil suits that will not result in any compensation may even undermine the court’s role to resolve disputes.”

At the time of the July 2011 ruling, the Legal Forum for the Land of Israel said, “On the one hand, Dirani can take up arms and fight in the ranks of Hezbollah, and on the other he can send lawyers to Israeli courts and sue the country he fought against – illegally and in violation of international law – for acts that allegedly occurred when he was in an Israeli prison.”
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