Four American Jewish groups are urging the US Supreme Court to reverse a lower court decision that could lead to Israeli officials being slammed with civil lawsuits in the United States.
Coinciding with a British judge's decision to sign an arrest warrant for Kadima leader Tzipi Livni for alleged "war crimes" during Operation Cast Lead, the brief seeks to overturn a Fourth Circuit decision to strip foreign government officials from immunity in American civil lawsuits.
Written by Washington attorney Nathan Lewin on behalf of the Zionist Organization of America, the American Association of Jewish Lawyers and Jurists, Agudath Israel of America and the Union of Orthodox Jewish Congregations of America, the "friend of court" brief warns against a "torrent of unfounded lawsuits against Israeli government officials" in the absence of absolute immunity.
"Public officials should have the same immunity as their governments have under federal law in order to enable them to act in accordance with their best judgment in their roles," Lewin said.
In the US, only prosecutors can pursue criminal charges against an individual, unlike in Britain, where a private party can initiate such proceedings.
Prime Minister Binyamin Netanyahu on Tuesday blasted the UK judge's decision to issue an arrest warrant against Livni, who at a Tuesday conference in Tel Aviv called the operation a "necessary option" to defend Israeli citizens.
"We will not agree to a situation in which [former prime minister] Ehud Olmert, [Defense Minister] Ehud Barak and Tzipi Livni are sitting on the defendants' bench," Netanyahu said.
"We will not allow for IDF soldiers and commanders, who heroically and morally defended our citizens from a cruel and criminal enemy, to be condemned as war criminals," he added. "We outright reject this absurdity."
The American Jewish groups' brief argues that immunity is necessary for foreign officials to make decisions without fear of being punished later on. Without legal protection, Israeli officials will not visit the US and American Jews will be deprived of a First Amendment right to hear free speech and receive information.
"Israel's adversaries are ready to pursue all possible means to hinder measures that duly elected Israeli leaders feel are necessary for Israel's self-defense," the brief argues.
The case in question, Samantar vs. Yousuf, which is on the docket for March 3, concerns a former minister of defense and prime minister of Somalia, Mohamed Ali Samantar, who was in power between 1980 and 1990 when opponents of the Supreme Revolutionary Council were allegedly tortured and killed. Federal law protects present and former government officials, but a Fourth Circuit judge said immunity should not be extended to Samantar personally.
Alyza Lewin, whose father wrote the brief, said foreign officials have been targeted "with increasing frequency all over the world."
"The decision of the court in the case will have a very significant impact on Israel and on Jews," she said. "There are immediate consequences."
The brief cites at least 15 present and former Israeli officials who could face civil or criminal legal actions.
"We'd be rather shocked to see that happen in the US, but nonetheless because of a potential concern of a situation arising, that's what motivated us to file this brief with the Supreme Court," said Nathan Diament, director of the OU's Institute for Public Affairs, when asked about the British warrant for Livni's arrest. He said it was hard to imagine a US prosecutor filing charges against an Israeli official, but an individual filing a civil lawsuit against an Israeli official is possible.
"In fact, it's happened," said Susan Tuchman, director of the ZOA's Center for Law and Justice. Likud MK and former IDF chief of staff Moshe Ya'alon was sued in the Second Circuit, but the case was dismissed in 2008 when a judge concluded the Foreign Sovereignty Immunity Act applied not only to foreign governments, but also to officials carrying out the government's policies. A case against Kadima MK Avraham Dichter was dismissed on the same basis.
Tuchman said she did not know the details of the case against Livni in Britain. But, she said, "certainly in Europe, arrest warrants have been issued for foreign officials and that's exactly the kind of situation we're looking to avoid here in the United States."
Civil lawsuits against Israeli officials could have a "chilling effect," she said, impacting diplomatic relations between Israeli and American government officials.