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FATIMEH ALI AIDI v. YARON

August 28, 1987

Fatimeh Ali Aidi, et al., Plaintiffs,
v.
Amos Yaron, Defendant



The opinion of the court was delivered by: JOHNSON

 NORMA HOLLOWAY JOHNSON, Judge

 Plaintiffs filed this suit against Amos Yaron on May 4, 1987, seeking to recover damages for personal injuries as well as for the wrongful death of certain relatives alleged to have been killed at the Sabra and Shatila refugee camps in Beirut, Lebanon, in September 1982. The defendant, a Brigadier General in the armed forces of the State of Israel, was at that time stationed in West Beirut. Plaintiffs accuse defendant of participating in the massacres which occurred in these refugee camps by knowingly facilitating and permitting the deaths of plaintiffs' decedents.

 Defendant, who later became Defense, Military, Naval and Air Attache at the Embassy of Israel in Washington, D.C., and who continues to serve in that capacity, was accorded full diplomatic immunity by the United States on July 21, 1986. See, Defendant's Motion to Dismiss, Ex. 1. Despite this proclamation of immunity, plaintiffs contend that defendant is not immune from this suit as his actions in Lebanon regarding the Sabra and Shatila refugee camps constituted international crimes resulting in the dissolution of his diplomatic immunity for purposes of this action. They argue that no immunity should be afforded one who is guilty of international war crimes. Defendant denies that he is guilty of any war crimes and asserts that diplomatic immunity protects him from liability in this action. Accordingly, defendant moves to quash the service of process as well as for dismissal of the action.

 DISCUSSION

 I. MOTION TO QUASH SERVICE

 Plaintiffs first argue that defendant's motion to quash service of process should be denied as the sole remedy available to defendant is a motion to dismiss. Plaintiffs cite the U.S. Diplomatic Relations Act, 22 U.S.C. § 254d, which states that actions brought against diplomats entitled to immunity should be dismissed. They argue further that the provisions which made service of process on diplomats illegal and void were repealed *fn1" and thus there is no provision for quashing service of process upon a diplomat entitled to immunity.

 While it is true that the Diplomatic Relations Act fails to specify the remedy requested by defendant, it does not specifically prohibit this remedy. Moreover, there is authority, upon which the Court may rely, which indicates that it is proper to quash the service of process upon an immunized diplomat.

 A. Vienna Convention

 The Diplomatic Relations Act of 1978, 22 U.S.C. §§ 254a et seq., is essentially a codification of the Vienna Convention on Diplomatic Relations of April 18, 1961, T.I.A.S. 7502; 23 U.S.T. 3227. For example, § 254b of the Act states that diplomats "shall enjoy the privileges and immunities specified in the Vienna Convention." As such, we must look to the privileges and immunities provided diplomats in the Vienna Convention to discover if defendant may properly have the service of process quashed.

 There are several indications in the Vienna Convention that this remedy is available to defendant. Article 29 of the Convention states that "the person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention." Moreover, Article 31(c)(3) states "no measures of execution may be taken in respect of a diplomatic agent . . ." Both of these provisions imply that a diplomat who enjoys immunity is also immune to service of process.

 B. Case Law

 This discrete issue appears to be a case of first impression as there have been no cases since the repeal of §§ 251-253, making service on diplomats illegal, discussing the validity of service of process on immunized diplomats. However, the reasoning employed in several pertinent cases, as well as common sense, moves this Court to grant the motion to quash service. For example, in Vulcan Iron Works v. Polish Am. Machinery Corp., 472 F. Supp. 77, 78 (S.D. N.Y. 1979) the Court declared that the Vienna Convention ...


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