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:Tel 972-3-7514175 :טל :Fax 972-3-7514174 :פקס :(Tel (US 212-591-0073
July 29, 2012 Alandia P.O. Box 121, AX - 22101 Mariehamn ÅLAND Finland Via Email: email@example.com
Criminal and Civil Liability of Maritime Insurers for the Gaza Naval Expedition
Dear Sir or Madam, SHURAT HADIN—ISRAEL LAW CENTER , an Israeli organization dedicated to enforcing basic human rights through the legal system, represents victims of terrorism in courtrooms around the world. Our clients include American, European, and Israeli citizens. As you may recall, on May 31, 2010, reckless activists, sponsored by Islamic terrorist groups and European and Turkish non-governmental organizations (“NGO’s”) organized a naval flotilla to violate Israel’s coastal blockade of the Hamas controlled Gaza Strip, and to provoke the Israel Defense Forces (“IDF”). The ensuing confrontation with the IDF resulted in the deaths of nine armed militants and serious injury to numerous Israeli soldiers. Many of the same NGO’s attempted to repeat their illegal activities roughly one year later. Thanks to international pressure placed on industry participants, including the maritime insurance industry, Shurat HaDin and others were able to thwart that second attempt before the boats were launched. It has come to our attention that many of these same NGO’s are preparing a third attempt to illegally bring their ships into Israeli waters. It has also come to our attention that your organization, a leading provider of maritime insurance, might be
insuring some of the vessels that are slated to be used in this illegal expedition. These attempts to violate Israeli blockades and other Israeli domestic orders are not a mere political stunt. They are part of a broader attempt—and might prove to be the vehicle for—smuggling weapons and other contraband into the Hamas-controlled Gaza Strip. As you are probably aware, Hamas is a radical terrorist organization. It has been so designated by the U.S. State Department since at least 1997 and is similarly designated by numerous other jurisdictions including the European Union, Canada, the U.K. and Australia. Hamas’ openly-declared goal is the creation of an Islamic state in the territory of Israel, the West Bank and the Gaza Strip, the destruction of the State of Israel, and the murder or expulsion of its Jewish residents. Hamas seeks to achieve this goal by carrying out terrorist attacks against Jewish civilians in Israel, the West Bank and the Gaza Strip. Hamas proudly and openly acknowledges that it uses terrorism to achieve its political goals. On September 2, 2011 the United Nations released its "Report of the SecretaryGeneral’s Panel of Inquiry on the 31 May 2010 Flotilla Incident" (the "Palmer Report"). The Palmer Report found that Israel's maritime blockade of Gaza was in complete conformity with international law and was appropriate given Hamas' violent seizure of the Gaza Strip. Moreover, the Palmer Report found that Israeli naval forces have every right to stop Gaza-bound ships in international waters. As such, the Gaza Flotilla ships and those that service them are engaging in criminal activity. If you are not already, you should be aware that there are several provisions within the peace accords signed by Israel and the Palestinian Authority that grant Israel the right to implement a naval blockade and other security measures against the Hamascontrolled Gaza Strip. Specifically, the September 28, 1995 Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip states in Article XIV that Israel has “the responsibility for defense against external threats, including … for defense against external threats from the sea and from the air.”1 Moreover, in Article XIV of the Interim Agreement titled Security along the Coastline to the Sea of Gaza, Israel and the Palestinian Authority agreed that foreign vessels would “not approach closer than 12 nautical miles from the coast” unless specifically authorized pursuant to jointly agreed regulations and that in the absence of such conditions all foreign vessels would be required to dock at Israeli approved ports. (Because there are no international ports
See Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip (“Interim Agreement”), Washington, D.C., September 28, 1995, Art. XII. Available at: http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/THE+ISRAELI-PALESTINIAN+INTERIM+AGREEMENT.htm.
open to foreign vessels in Gaza at this time, it is currently illegal for foreign vessels to attempt to dock in Gaza without explicit Israeli authorization.) In a letter to then Israeli Prime Minister Sharon on April 14, 2004, shortly before Israel’s withdrawal from the Gaza Strip, President Bush confirmed: “The United States understands that after Israel withdraws from Gaza and/or parts of the West Bank, and pending agreements on other arrangements, existing arrangements regarding control of airspace, territorial waters, and land passages of the West Bank and Gaza will continue.”2 Please be advised that providing any aid—such as insurance services—to vessels that set sail for the purpose of violating Israeli law and providing aid to Hamas is not just bad policy. It is illegal. It will expose your organization and its officers and directors to criminal prosecution and civil liability to American citizens and others who are victims of Hamas’ future terrorist activities. (See Abecassis v. Wyatt, 785 F.Supp.2d 614 (S.D. Tex. 2011) (allowing a suit to go forward against an oil and gas company and its officers and directors for engaging in business with a terrorist state.)) Additionally, it will likely subject a portion of your assets to forfeiture to judgment creditors who hold unenforced judgments against Hamas. Provision of insurance services constitutes the provision of “material support or resources” pursuant to 18 U.S.C. § 2339A. Such provision therefore subjects your organization to criminal liability pursuant to 18 U.S.C. §§ 2339A, 2339B, 2339C and to civil liability pursuant to 18 U.S.C. § 2333 (see Boim v. Holy Land Foundation, 549 F.3d 685, 690-91 (7th Cir. 2008) (en banc)). The United States Supreme Court has ruled that material support liability exists without regard to the criminal or terror-inducing intent of the material supporter. Indeed, gifts to the purely charitable objectives of a terrorist organization are actionable because, in the words of the Court, Money is fungible, and when foreign terrorist organizations that have a dual structure raise funds, they highlight the civilian and humanitarian ends to which such moneys could be put. But there is reason to believe that foreign terrorist organizations do not maintain legitimate financial firewalls between those funds raised for civil, nonviolent activities, and those ultimately used to support violent, terrorist operations. Thus, funds raised ostensibly for charitable purposes have in the past been redirected by some terrorist groups to fund the purchase of arms and explosives.
Holder v. Humanitarian Law Project, ___ U.S. ___, 130 S. Ct. 2705, 2720, 2729 (2010). (Internal citations and quotation marks omitted). Further, because the vessels that your organization insures could not or would not set sail if it were deprived of insurance, and because Hamas depends on foreign smugglers to get its hands on weapons and other contraband, your provision of services will facilitate Hamas’ terrorist activities and is a proximate cause of the same. Accordingly, by insuring such vessels, you will be in violation of prohibitions under international law against aiding and abetting terrorism and the civil tort law of many jurisdictions around the world. Finally, your provision of insurance services to radicals who act for the purpose of undermining Israeli domestic security would be in violation of the Neutrality Act, which provides, in pertinent part, that: Whoever, within the United States, knowingly begins or sets on foot or provides or prepares a means for or furnishes the money for, or takes part in, any military or naval expedition or enterprise to be carried on from thence against the territory or dominion of any foreign prince or state, or of any colony, district, or people with whom the United States is at peace, shall be fined under this title or imprisoned not more than three years, or both (18 U.S.C. § 960.) Numerous banking and financial institutions that have provided financial services and wire transfers to terrorist organizations and front-charities affiliated with the terrorist organizations have been sued by terror victims and their families for aiding and abetting Palestinian terrorism. Many of these banks now find themselves defending against multi-billion dollar civil actions in federal courts in the United States. The theories behind their liability apply to cases against providers of insurance services. Accordingly, this letter should be understood as placing your company on notice that if it provides insurance or similar services to any boat used to deliberately break violate any domestic security law of Israel, undermine Israel’s security, or provide services to Hamas or any other terrorist organization, it will face substantial legal exposure. In light of the above, we request that you immediately provide us written confirmation that (1) you do not, to the best of your knowledge, insure or otherwise support a vessel that is likely to soon be used to deliberately break violate any domestic
security law of Israel, undermine Israel’s security, or provide services to Hamas, and/or (2) you will immediately, and preemptively, terminate such insurance coverage or other support the moment that you learn that a vessel that you insure is soon to or has been used to deliberately break violate any domestic security law of Israel, undermine Israel’s security, or provide services to Hamas. We further request that you (3) immediately provide us written confirmation that you have taken adequate steps to discover whether any of the vessels that you insure or otherwise support are likely to be used for the illegal purposes mentioned above and that you (4) have taken adequate measures to prevent the same. Absent such immediate confirmation, and upon learning of any legal violation described above, we will seek all available relief and remedies against you and your subsidiary organizations in all relevant jurisdictions.
Very truly yours, Nitsana Darshan-Leitner, Esq., Director Shurat HaDin – Israel Law Center
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