THE HANDSTAND

JANUARY 2006
Immunity was a mistake

By Yuval Shany

The civil suit filed in New York last Wednesday against Avi Dichter, the former head of the Shin Bet security service, demonstrates once again the very real possibility that Israeli soldiers and civilians could be sued in foreign countries due to their involvement in military actions taken during the current intifada. The arrest warrant issued against Major General Doron Almog in London last September was an example of the possibility of filing criminal charges against Israelis in a foreign country, whereas the suit against Dichter demonstrates the possibility that civil "intifada suits" could be filed abroad. Moreover, it would appear that the legislation passed in the Knesset in the past year, which gives the state broad immunity against "intifada suits" in Israel, significantly increases the chances of legal steps against Israeli soldiers and civilians being taken in foreign courts.

The suit against Dichter assigns him with personal and command-level responsibility for killing and injuring innocent Palestinian civilians during the targeted assassination of Salah Shehadeh, the head of the Hamas military wing in Gaza, in July 2002. The steps taken in the United States are based on American law that grants American courts "universal" authority regarding damages or physical injury caused as a result of the violation of international law, regardless of where the damage was caused. Many dozens of suits have been filed in the United States based on these laws.

American law, however, stipulates that the American courts can apply their authority only in cases in which the plaintiffs have no possibility of filing suits in the local courts of the country where the injury was caused. It is this backdrop that underscores the dubious practical wisdom behind the amendment to Israel's Civil Torts (Liability of the State) Law, which considerably broadened the immunity granted to the state against damage suits stemming from Israel Defense Forces actions in the territories, thereby retroactively denying the right of Palestinians to submit "intifada suits" related to damages caused them after September 2000. Consequently, denying the right to file suits in Israel's courts means that there is nothing to prevent the filing of corresponding damages suits in the United States.

Moreover, the writing regarding this legal development was on the wall. In a debate held in the Knesset Constitution, Law and Justice Committee in June (before the amendment to the law was passed), Prof. Mordechai Kremnitzer of the Hebrew University of Jerusalem warned the committee: "I propose thinking very carefully before blocking the way to the these suits in Israeli courts ... There is a more realistic danger that we will find ourselves facing these suits in various courts in other countries, with far fewer defenses under far less favorable conditions ... No one will be able to defend this stupidity." The filing of the suit against Dichter in the United States illustrates very well the legal logic behind Kremnitzer's opposition to the broadening of state immunity (although it is possible that the wording of the law that preceded the amendment would also have prevented the filing of "intifada suits" in Israel due to clear-cut "war-like actions").

It would appear that the message coming now from New York is that in an age when the enforcement of international law, both on the civil and criminal level, has become a global matter, the state's eschewal of conducting a serious investigation into the complaints of suspicion of international crimes being committed by its citizens, and the denial of the right to file claims of damages by the victims of Israel's military actions, does not grant broad legal protection to its soldiers and citizens, as might have been assumed. On the contrary, broadening the state's immunity considerably increases the risk of having suits filed against Israeli soldiers and citizens in less friendly legal forums and under far harsher legal conditions. As a result, there is a serious likelihood that Almog and Dichter will not be the last Israelis to find themselves open to "intifada suits" abroad.

Dr. Yuval Shany is a senior lecturer in international law in the faculty of law of the Hebrew University of Jerusalem
Germany Still In
Juridicial Limbo
By Christopher Bollyn
12-15-5
POTSDAM, Germany - The Allied occupation of Germany began 58 years ago this month and in the eyes of many Germans has not yet ended. Foreign armies are still based on German soil and Europe's largest and most prosperous "democracy" still lacks a constitution and a peace treaty putting a formal end to the Second World War.
 
The reunified German nation, considered a modern European democracy, has no constitution other than the temporary Basic Law (Grundgesetz) originally written in 1948, under the guidance of the U.S. military occupation forces and originally meant only to apply to the western parts of Germany under U.S. control.
 
The Basic Law was removed at the request of former Secretary of State James Baker at a Paris conference of the Allied powers and the two former German states on July 17, 1990. The two German states were legally abolished at this conference. As a result of these changes, the Basic Law does not legally apply to the reunified German state, according to some legal experts.
 
In any case, the Basic Law is incomplete and contradictory and article 139 states that the numerous Allied occupation laws and proclamations remain in effect. The Basic Law has never been ratified by a vote of the people.
 
The fact that the flawed and temporary Basic Law serves as Germany's de facto constitution is unacceptable to Wolfgang Gerhard Günter Ebel, Germany's provisional Reichskanzler. Ebel heads the provisional government that claims to be the legal successor to the Second German Reich, which was replaced by Adolf Hitler's illegal Third Reich (1933-45).
 
On 5 June 1945, the Supreme Headquarters Allied Expeditionary Force (SHAEF) accepted Germany's declaration of defeat and quickly moved to recognize the legitimacy of the Zweite Deutsche Reich (Second German Reich), which was claimed to have been illegally displaced by Hitler's Third Reich.
 
The SHAEF laws underpinned a treaty between the occupation authorities and the Second German Reich, in which the latter was invested with full administrative rights and governmental sovereignty throughout most of Berlin and in all of the German states. After WWII ended, a parallel state, founded by ambitious lawyers and Zionist activists and still known as the Federal Republic of Germany (BRD), competed with the Second German Reich for legitimacy
 
Following the collapse of the DDR, East Germany's Democratic Republic, a treaty known as the "2 Plus 4" confirmed that only the Second German Reich, now led by Reichskanzler (Prime Minister) Dr Wolfgang Gerhard Guenter Ebel, represented the legitimate German State. In July 1990, the Secretary of the US Department of State, James Baker, confirmed in writing to German Chancellor Helmut Kohl that the BRD had come to the end of its lifetime and should be dissolved. From that moment on, the United Nations destroyed all of its stationery and placards that carried the words "Federal Republic of Germany" or BRD and replaced them with use of the broader term "Germany" in lieu of the anticipated "German Reich".
 
Almost everyone in diplomatic circles around the world expected the re-emergent German Reich to take over where the BRD had left off. Yet the government in Bonn, and later in Berlin, continued and still continues to act and behave as if nothing really happened: a sort of disembodied ghost that has no idea that its corpse perished many years ago.
 
Despite this highly unusual situation, the Second German Reich continues to issue its own passports and driving licenses. Over the last two or three years there has been a sharp increase in the number of motorists who have been acquitted for speeding or parking offences, simply on the strength of their having produced a German Reich driving license.
 
The illegal German government in Berlin is so worried about the publicity, it has leaned heavily on newspapers not to report on such matters and it has instructed judges to dismiss cases where a defendant is likely to prove that his citizenship of the German Reich permits him not to recognize the BRD and its courts as legitimate administrative constructs. They are horrified at the publicity each of these cases brings.
 
Right now, "Germany rests on the 2nd Reich" and on the constitution of the Weimar Republic created on August 11, 1919, Wolfgang Gerhard Günter Ebel told AFP. This is the only legal constitution for Germany, according to Ebel, until a peace treaty is signed. According to the provisional government, the Final Settlement of Sept. 12, 1990 is not valid because it was negotiated and signed by the foreign ministers of the two German states, the BRD and the DDR, both of which legally ceased to exist after the Paris conference of July 17, 1990.
 
"The German government is illegal," Ebel told AFP, "and what they do has no basis in law." Asked how it could be that the German people are unaware of this situation, Ebel said: "The German media is still under the control of the Allies. The entire media is controlled.
 
"The Second World War has not ended, because a peace treaty has not been signed between Germany and the Allies," " Ebel says, "The peace contract is the most important thing that we need and want." Because there is no formal peace treaty between Germany and the Allies, headed by the United States, German sovereignty is compromised. "Until we have a peace treaty, Germany is a colony of the United States."
 
Some 80,000 U.S. military personnel are permanently based in Germany and Britain also continues to base troops and military equipment in the western German zone they formerly occupied. It is not uncommon to see British tanks on the streets of the area near Münster in Westphalia.
 
U.S. occupation laws handed down by the Supreme Headquarter Allied Expeditionary Force (SHAEF) are still in effect, Ebel said. The first law, Proclamation No. 1, making General Dwight D. Eisenhower supreme authority in the areas under U.S. control was signed on Feb. 13, 1944. Allied authorities have informed Ebel that these SHAEF laws will remain in effect for 60 years from the date of signing and apply to all of Europe.
 
Calls to the U.S. State Department in Washington and the U.S. Embassy in Berlin concerning the validity of SHAEF laws and U.S. occupation proclamations in Germany were not returned.
 
"When there is a peace treaty - when the wound is healed - many things will change," Ebel says, "not only for Germany, but for the whole world.
 
"The United Nations is also provisional - if there is a peace treaty between Germany and the Allies [primarily the United States] - the UN will cease to exist as we know it," Ebel said. The UN organization was founded in 1945 and originated with the 26 nations that had joined the anti-Nazi coalition in 1942. By 1944 the coalition had grown to include 47 nations.
 
The UN Charter contains "enemy state clauses" [Articles 53 and 107], which were established because of Germany and name it as the "enemy state."
 
"The Bundesrepublik Deutschland, (the former West German state), is not the legal successor or inheritor of the Second German Reich," according to Ebel. For this reason, a legal peace treaty cannot be signed by the current German government in Berlin, he said.
 
"Until the real government is established and voted by the people," Ebel said, the provisional government is necessary to "fulfill the role of the legal German government."
 
The Allies have authorized Ebel to serve as head of the provisional government, he says. A civil servant with the German railroad, Ebel was born in Berlin in 1939 and is a citizen of the German Reich, having never held citizenship of either German state that resulted from the Second World War. Berlin was a separate zone and "has never been part of the BRD or DDR," Ebel said.
 
Ebel was first appointed by the U.S. Military Court in Berlin to serve as Rechtskonsulent for Prussia on Sept. 23, 1980.
 
On Jan. 9, 1984, the U.S. State Department in Berlin appointed Ebel to serve as the head of the German railroad (Reichsbahn) in West Berlin.
 
Exactly forty years after the German military (Wehrmacht) surrendered, on May 8, 1985, Ebel was appointed as Transportation Minister for the German Reich by the U.S. High Commissioner in Germany, who he says was then U.S. Ambassador to West Germany (BRD) Richard Burt.
 
Finally, on Sept. 27, 2000, Ebel was appointed chancellor of the German Reich (Reichskanzler) by Ernst Matscheko, a representative of the U.S. Dept. of Justice. Matscheko reportedly asked Ebel to name a Reichspräsident and a special ambassador to the United Nations.