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.”