Ben-Haim Brief in Opposition to State Officials Motion to Dismiss

7/31/2019 Ben-Haim Brief in Opposition to State Officials Motion to Dismiss

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Sharon Ben-Haim

6-05 Saddle Rd. #225

Fair Lawn, New Jersey 07410

(201) 625-6377 (fax)[email protected]

Plaintif, Sharon Ben-Haim

Sol Havivi, Gamliel Elmalem

SHARON BEN-HAIM, SOL HAVIVI,GAMLIEL ELMALEM

Plaintiff,

v.

YAAKOV NEEMAN, et al.,

Defendant.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CIVIL ACTION NO. 2:12cv351(JLL/MAH)

BRIEF IN OPPOSITION TO STATE

OFFICIALS MOTION TO DISMISS

PRELIMINARY STATEMENT

ARGUMENT

I. THE CONDUCT VIOLATES JUS COGENS

Defendants allege that Plaintiffs are merely fathers dissatisfied with custody cases

handled in Israel. Defendants are willing to concede as truth the allegations in the

complaint, but in their briefs they deny the allegations claiming that the treatment of

men in Israel is the same as everywhere else. This necessitates declarations to offset the

prejudicial impact of Defendants false briefing. In fact, the employees under Defendant

Neemans watch manufacture false compliance reports to ICCPR, ICESCR and CRC

UNs various committees to create the impression that Israel is in line with the rest of the

world, and that no torture or violations of human rights exist.

The complaint reveals a drastically different picture. The Plaintiffs are victims of

discrimination against men, which is so pervasive and engrained into Israeli legal,

welfare, police, enforcement and collections systems that every man has no chance of

winning, and the men are caught in a slow roasting torturous process designed to strip

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them of everything they used to have.

Men in various family dissolution disputes enter a special category which strips

them of almost every conceivable human right, until they are physically, mentally and

financially destroyed, and many commit suicide. They are hunted like animals and

treated as second or even third class citizens. The men who the Defendants send to

defend the country and fight its wars, find out that once their wives file for divorce, they

become the nations biggest enemy.

The complaint describes adequately a widespread systematic attack against men

and fatherhood in Israel. It is like a noose which slowly tightens and tightens until the

final physical and mental strangulation of the man. One can describe it as slow roasting

torture with guaranteed results, and nowhere to escape. It works like this: one day a

woman decides to divorce, abduct children or steal sperm. She knows that the

Guidelines drafted by Defendant Arbel exempt her from making false perjuries at the

police. She goes to clinics financed by either the ministries of Kahlon (Naamat,

Wizo), or legal aid offices under supervision of Defendant Neeman. Therefore she is

coached to go to the police and say she is threatened. No testimony whatsoever is

required. Police squads are dispatched to arrest the unsuspecting man, and orders areissued to evacuate the home for at least 7 days, with almost automatic extensions. The

man becomes homeless. A barrage of 3 to 5 complaints follows (divorce, child support,

equitable distribution, torts). At the religious courts, no evidence is required at all. At

the family court evidence can be dispensed with. In both courts women file a multitude

of ex parte applications. All are granted instantly. (When a man makes an application,

it is postponed for several months). The courts become the womans ask and you shall

receive. The judges are trained in gender studies, and because the laws themselves

contain discriminatory mandates against men, they contest with each other who will give

the woman more. Children automatically go to the woman (Guardian and Capacity

Law, Section 25). Child support awards are fixed based on fictitious allegations of

need. Because it is unrelated to income, the entire salary can be confiscated for child

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support and sometimes double or triple. The woman takes it to the Executions and Debt

Collections serve and docket it. There, they can issue any ex parte order they want:

liens on salaries, liens on properties, and as the unaffordable child support accumulates,

the draconian ex parte orders start to issue very fast: driving licenses suspended,

professional license revoked, use of bank accounts forbidden, use of credit cards

forbidden, ownership of corporations forbidden, and a ne exeat order is almost de

rigueur.

The father then receive a social worker, who has the power to decide if and when the

father will see the children, By the time she starts working on a case, a long

disengagement period has happened. She then sends the father to a contact center, and

gives the father one hour a week. The rest of the family is forbidden from seeing the

children, or they will be arrested on stalking charges. The father then has to defend the

various cases, and the almost automatic criminal indictment, which immediately put a

stain on his employability. Because salary garnishment is 100% with no self subsistence

allowance, many men, go into hiding, sleep on beaches or become homeless. Many

suffer post traumatic stress disorder, and few commit suicide. This is the daily routine

scenario of moist divorced men, (and also bachelors whose sperm was stolen. Within avery short time, everything they have vanishes, including all their human rights and

children. At the Courts, all they get is scorn and ridicule. Meanwhile, the social

workers start working, collecting libel to report to the judge, guiding women to file more

false complaints, and send men to parental fitness with pre-selected psychiatrics, who

sometimes write reports without examining the patient. The social workers also search

the internet for evidence that fathers participate in fathers groups and they immediately

suspend all child access in retaliation. It is not a pretty picture.

II. THE LESSON FROM KAREN ATALA V. CHILE

Discrimination based on the sex of the parent is universally recognized as a

violation of international human rights. Recently, even discrimination based on sexual

orientation was recognized as ajus cogens violation. See for example the case of Atala

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v. Chile at the Inter-American Court of Human Rights, (Wikipedia: Karen Atala,

Judgment 2/24/2012), where the Court decided the international responsibility of states

for the alleged discriminatory treatment and arbitrary interference in private life and

family, when Ms. Atala lost custody because of her sexual orientation. The judgment

was sustained in favor of Atala on every count (the right to equality and non-

discrimination, the right to privacy, protection of honor and dignity, family protection,

right to a fair hearing, all enshrined in the Inter-American Convention).

In Atala, a multitude ofamici1filed briefs claiming that violations based on sexual

orientation constitutejus cogens violations. If that is the case today with respect to anti-

gay discrimination, surely the traditional gender based discrimination is ajus cogens

violation. The Inter-American Court condemned the Chilean Courts use of stereotypes

against lesbians as incapable of raising children. Even worse stereotypes are advanced

by the herein Defendants against men in Israel to deny their child access, take away their

properties and liberties, restrict them to the ever expanding one-hour-a-week-contact

centers, and impose on them impossible child supports (four times higher than Western

standards without any connection to actual salary). What follows is a multitude of

draconian measures: loss of children, arrest, liens and foreclosures on all properties, lossof passport, driving licenses, other licenses, and 100% wage garnishment.

This leads to the question why Israeli men are suing in the United States. The

response is that it affects American citizens. See the Declarations of Ms. Adi Vaxman

and Mr. Ariel Fefer, who are NJ residents.

While Defendants claims in their brief, p.14, that Plaintiffs proactive

characterization of Israels child custody policies and legislation as torture and

crimes against humanity is absurd, and that in fact, Israels child custody laws and

social welfare policies are based on best interests of the child, p. 15, these disputed

facts, as many witnesses from all over the world can attest.

1 See Columbia Universitys amicus brief: http://www.law.columbia.edu/null/download?

&exclusive=filemgr.download&file_id=59712

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III. RACIAL DISCRIMINATION V. GENDER DISCRIMINATION

Defendants found one citation in Sarei v. Rio Tinto, PLC, 671 F.3rd 736, 768 (9th

Cir. 2011) and take it out of context. They advance the argument that racial

discrimination is not internationally recognized, and by analogy that sex discrimination

is not recognized. Contrary to Defendants arguments, Def.Brief p.14, in Sarei, it was

not categorically decided that racial discrimination does not rise to the level necessary to

plead a cause of action.

In Sarei the 9th Cir. held that ATS applies to conduct that occurred

extraterritorially, that it includes aiding and abetting liability, that ATS extends to

corporations2 and thatjus cogens prohibitions must be specific, universal, and obligatory

internationally accepted norm and that the complaint adequately alleges it. As to

genocide and war crimes, the elements were met. Apartheid was also found to qualify

under ATS. As to racial discrimination, the Court had before it only allegations of a

food blockade committed by a corporation, which allegedly targeted a race. In those

circumstances the pleading did not suffice.

The Court compared racial discrimination (as offspring to crimes against

humanity) to the crime of apartheid,as follows:

A claim premised on apartheid may be

cognizable under the ATS. See e.g.Khulumani v. Barclay Nat'l Bank Ltd., 504 F.3d 254,

260 (2d Cir. 2007) see also Restatement (Third) of Foreign Relations 702, cmt. i

("Racial discrimination is a violation of customary law when it is practiced

systematically as a matter of state policy, e.g., apartheid in the Republic of South

Africa."). We assume, without deciding, that a claim akin to apartheid would be

cognizable under the ATS, but the complaint in this case does not allege such a claim.

Thus, this Court here in NJ can draw analogy from racial discrimination, between whites

and non-whites to sex based discrimination between women and men, which is what the

Defendants in Israel allow to happen. To add insult to injury, the defendants, and in

particular Neeman, justify the sex discrimination as warranted based on the religion of

2 We are aware of the decision in Kibble.

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the parents, whether they believe in a religion, or not.

In Sarei (2011) the Court said that a food and medical blockade may well be an

"other inhumane act" constituting a crime against humanity. The International Law

Commission has recognized that the statutes could not list every possible crime against

humanity, stating that "it was impossible to establish an exhaustive list of the inhumane

acts which might constitute crimes against humanity." Prosecutor v. Kupreskic, et al.,

IT-95-16-T, Judgment, 565 n.828 (Jan. 14, 2000) (quoting Report of the International

Law Commission on the Work of its Forty-Eighth Session, 6 May-26 July 1996,

UNGA0R 51st Sess. Supp. No. 10 (A/51/10) (Crimes Against the Peace and Security of

Mankind), 17)). However, To meet the Sosa test, however, the blockade must be a

violation of a recognized specific norm. The statutes do not create such a norm. There is

no source of recognized international law that yet identifies a food and medical blockade

as an "other inhumane act" or otherwise qualifies it as a crime against humanity. In the

absence of any such source, a food and medical blockade does not violate a specific

internationally recognized norm within the meaning of Sosa.

Thus, if Defendants are urging the Court to learn from Sarei andKhulumani that

racial discrimination is notjus cogens, and apply it to gender discrimination, thequotation from Sarei cited in Defendants brief was limited to a food and medical

blockade by a corporation, which was not well pleaded. Yet, racial discrimination,

apartheid discrimination, sex based discrimination, and these days also sexual

orientation discrimination are all within the realm of jus cogens, even within the area of

family rights and rights ancillary to divorce.

IV.FSIA STILL CATCHES FOREIGN OFFICIALS

Defendants reliance on Samantar v. Yousuf, 130 S.Ct. 2278 (2010), Def.Brief, P.8

is incorrectly briefed. Defendants argue that FSIA does not apply to individual state

actors. The case actually says that the exceptions to immunity under FSIA do not

apply, and that these Defendants must seek immunity via the old common law two-step

approach. The case does not lead to conclusion that Samantar forecloses this action.

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What is foreclosed is reliance by State Actors on FSIA immunities.

In Samantar, Somalis claimed systematic persecution. Mr. Samantar was head of

the military. The State Dept. did not issue a Statement of Interest. The Sup.Ct. ruled

that when a foreign official seeks dismissal, he cannot seek defenses in FSIA, and

instead he must rely on common law immunity. That does not foreclose the suit. It

requires examination of defenses under common law immunity which involve grace

and comity, as well as the potential to embarrass diplomatic relations. Here, Samantar

clearly does not foreclose the suit.

V. SAMANTAR FOOTNOTE ON PERSONAL JURISDICTION

In Samantar, footnote 20, the court says that the jurisdictional benefits of FSIA are

not available when suing a foreign official. However, this footnote accompanies the text

that not every suit can be successfully be pleaded against an individual official alone.

The court continues: It may be the case that the state itselfis a required party Or it

may be the case that some actions against an official in his official capacity should be

treated as actions against the foreign state itself, as the state is the real party in interest.

Cf.Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985)

("[A]n official-capacity suit is, in all respects other than name, to be treated as a suitagainst the entity. It is not a suit against the official personally, for the real party in

interest is the entity" (citation omitted)).

A review ofKentucky shows that Personal-capacity suits seek to impose personal

liability upon a government official for actions he takes under color of state law. See,

e.g., Scheuer v. Rhodes, 416 U.S. 232, 237-238, 94 S.Ct. 1683, 1686-1687, 40 L.Ed.2d

90 (1974). Official-capacity suits, in contrast, "generally represent only another way of

pleading an action against an entity of which an officer is an agent."Monell v. New York

City Dept. of Social Services, 436 U.S. 658, 690, n. 55, 98 S.Ct. 2018, 2035, n. 55, 56

L.Ed.2d 611. Based on this distinction, clearly the officials sued here are sued in

official capacity, not in personal capacity. It follows, that the real culprit is the State of

Israel, and therefore the jurisdictional bases of FSIA do apply.

7
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The distinction was quoted afterSamantarinJaoudi v. Cigna Worldwide Ins. Co.,

391 F.Appx 173 (3rd Cir., 2010). There, Liberian Commissioner of Insurance and an

American lawyer residing in Switzerland, hired by him were sued in contempt of Court

for failure to comply with anti-suit injunction. They claimed FSIA immunity. Both

argued that FSIA immunes them, but the Court ruled that this argument was recently

foreclosed by the Supreme court in Samantar (P. 11). The Court remanded to permit

the District Court to consider the effect ofSamantar[whether immunity exists under

common law] ...and engage in discovery, if necessary. Thus, contrary, to Defendants

arguments, common law immunity is not available simply upon Defendants asking for

it.

See also,Lizarbe v. Rondon (4th Cir., 2010), a TVPA and ATS case against a

Peruvian military commander, who claimed a FSIA immunity. Relying on Samantarhis

FSIA immunity was foreclosed, and because he did not argue common law immunity, it

was not considered on appeal. The case against him was directed to proceed.

To the extent Defendants urge this Court to abstain from diplomatic clashes, or a

political question or to exercise other vigilant door keeping, so that the United States

does not risk break up of relations with friendly democracies or become the world courtfor all the oppressed victims around the globe, as these issues are discussed in

Khulumani, it is noteworthy that the State Department did not intervene on behalf of the

herein officials. In fact, the State Department must protect the Plaintiffs from the Israeli

official Defendants, and not vice versa, because the Defendants are not affording the

Plaintiffs in Israel most favored nation treatment, which is equalization to all the rights

and privileges that women enjoy in Israel, and men do not enjoy. Pursuant to the

Friendship Commerce and Navigation Treaty3, only the US State Department can take

the case on behalf of Plaintiffs, under the Friendship Treaty by launching a dispute at

The Hague court facilities. After all, American children of the Plaintiffs are caught in

the middle.

3 http://tcc.export.gov/Trade_Agreements/All_Trade_Agreements/exp_005440.asp

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VI. COMMON LAW IMMUNITY

Insofar as Israeli officials seek immunity based on grace and comity, or two

centuries of precedent, Def.Brief, p.23, Plaintiffs point to the lack of intervention by the

State Department in the form of Suggestion of Immunity SOI. Had Defendants

produced a SOI, the Court would probably terminate the case. Defendants lawyers also

representedDichterand they did obtain for Dichter a SOI in that case. At this point

presumably, DOS refused to immunize the herein Defendants.

Plaintiffs refer to Judge Mizdols (NJ, Sup.Ct, Hackensack) findings in the

parallel abduction case, denying comity to Defendant Arbels judgment, and declaring

that anything coming from the rabbinical courts where Defendant Edri works is

unenforceable in NJ. Furthermore, the State Department did not step forward to the

rescue of these defendants. Defendant Edri is an employee of a rabbinical tribunal

which exercises global jurisdiction. As such he cannot be deemed a state actor.

Defendant Milner is not a State employee. She is salaried by a municipality. Defendant

Arbel was found by NJ State judge B. Mizdol to ignore the facts, and make up theories

that defy common sense. Arbel is known to be a radical feminist who introduced the

concept of exemption to women from false DV complaints (Guideline 2.5) and uses

her influence to kill any attempt to remove all traces of discriminatory treatment.

Defendant Neeman is in charge of the various international undertakings of the State,

and he stubbornly insists that the organs under his control must continue the

discrimination, torture and even coerce application of pro-women religious laws, against

the will of men, that create discrimination based on religion, as well.

VII. WHAT IS TORTURE

TVPA defines state-sponsored torture. It may be based on direct and indirect

liabilities. ATS also defines torture but requires the conduct to be committed in

violation of the law of nations. It reaches conspiracies and accomplice liability. Both

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are interpreted in line with other international bodies such as the UN Convention against

Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment4 . A similar

Definition exists in the Inter American Convention5.

The UN definition is in Art. 1: torture means any act by which severe pain or

suffering, whether physical or mental, is intentionally inflicted on a person for such

purposes as obtaining from him or a third person information or a confession, punishing

him for an act he or a third person has committed or is suspected of having committed,

or intimidating or coercing him or a third person, or for any reason based on

discrimination of any kind, when such pain or suffering is inflicted by or at the

instigation of or with the consent or acquiescence of a public official or other person

acting in an official capacity. It does not include pain or suffering arising only from,

inherent in or incidental to lawful sanctions.

The OAS Treaty, Art 2 states: Torture shall also be understood to be the use of

methods upon a person intended to obliterate the personality of the victim or to diminish

his physical or mental capacities, even if they do not cause physical pain or mental

anguish.

Torture based on infliction of emotional distress was sustained inAldana v. DelMonte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1253 (11th Cir.2005) (per curiam), en

banc reh'g denied, 452 F.3d 1284 (11th Cir.2006), cert. denied, 549 U.S. 1032, 127 S.Ct.

596, 166 L.Ed.2d 431 (2006). See cases cited therein. See also, Chavez v. Carranza, 413 F.Supp 891, (torture to induce a confession),

and after trial, Chavez v. Carranza (6th Cir. 2009). Carranza served as El Salvador's

Vice-Minister of Defense and Public Security. While in this position, he exercised

operational control over the Salvadoran Security Forces. After trial in Tennessee he

claimed in appeal that the jury should have been instructed on proximate cause,

between his commands and the actions of the subordinates. The 6th Cir. stated that The

4 See the UNs Audiovisual library of International Law at http://untreaty.un.org/cod/avl/ha/catcidtp/catcidtp.html5 See OAS website: http://www.oas.org/juridico/english/treaties/a-51.html

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law of command responsibility does not require proof that a commander's behavior

proximately caused the victim's injuries. See Hilao, 103 F.3d at 776-79 (proximate cause

is not an element of command responsibility). This conclusion is in accord with the

legislative history of the TVPA: [A] higher official need not have personally performed

or ordered the abuses in order to be held liable. Under international law, responsibility

for torture, summary execution, or disappearances extends beyond the person or persons

who actually committed those acts - anyone with higher authority who authorized,

tolerated or knowingly ignored those acts is liable for them.

Here, Defendants are responsible for orchestrating a relentless and massive

crusade against fathers when they seek custody of their children in Israel, but also any

time they are haled to a family court in Israel. Defendants raise funds in this District

portraying Jewish fathers in Israel as potentially murderous wife-beaters and threats to

the very lives of their own children. Nothing could be further from the truth. Not only do

such false stereotypes breed anti-Semitism in general, Defendants shockingly egregious

actions have devastated many children, rendering them fatherless. With funds and/or

assets from this district, mostly via IFCJ, but also via other channels (Jewish Federation)

defendants continue to encourage and take part in systematic violations the civil andhuman rights of men.

VIII. TVPA

TVPA is a remedy for individuals including citizens, while ATS is a remedy for

aliens. Both cover similar heinous treatment for violations of the laws of nations

without much substantive difference. TVPA clearly covers mental torture, as well as

physical. Many American subjects reside overseas and it is expected that the hosting

countries will treat them with at least the minimum protections under the various

multilateral and bilateral agreements (under which the Plaintiffs are entitled to most

favored nation treatment, equal to that of women in Israel). That is why the US usually

extends comity to other nations. Here, Americans, and not just the herein Plaintiffs, who

are just a small sample, but many American men are exposed to such torture and

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dehumanization in Israel, that goes undetected6. In Ben Haim, Vaxman and Fefers

cases, the impact is felt in NJ.

Ironically, the Defendants are free to torture their own people as much as they

want, throw them all in jail, take all their properties, and enjoin them from seeing their

children, but this treatment cannot be directed at Americans, or those protected by

American bilateral treaties, or other foreign subjects.

28 USC 1350 requires exhaustion of remedies (Def.Brief, p. 18), but non

exhaustion of remedies is an affirmative defense. Defendants offered nothing to show

that remedies are available in Israel or in the international arena. For Plaintiff Ben Haim

Defendant Arbel herself sabotaged his rights to redress. For the others, Defendant

Neeman who is responsible for the Courts has populated the family courts with radical

and militant ultra feminists, trained them with gender ideation and anti-male agendas,

evidence rules were discarded with, the power to control transcripts was given to these

judges, and excessive unaffordable appellate bonds that prevent judicial reviews are

increasing.

All administrative Petitions to the High Court of Justice were Arbel sits are routed

to men hating judges who send petitioners back to family courts, where they aredoomed. For example, Arbel was assigned to a new petition attacking the sex based

discrimination in child support exempting women completely from child support, while

men pay outrageous amount (sometimes 80% of the salary, and even more than the

actual salary, based on need and not income). Thus, anything to do with mens

rights or fathers rights in Israeli courts is an effort in futility.

Note that inMatar v. Dichter, 563 F.3rd 9, at 15 (2nd. Cir. 2009), the Court stated

that the TVPA will apply to any official whom the State Department declines to

immunize. Dichter was so immunized by the State Department. The herein defendants6 The torture goes undetected largely because of gag orders, restraints on freedom of speech, and various ex parte orders

and retaliation by the Welfare Authorities (Kahlon, Shteinmetz and Artman. See for example Report sent to a UN

Rapporteur, Judge Frank La Rue on his mission to examine freedom of speech in Israel, December 2011:http://ccfisrael.org/wp-content/uploads/2011/12/CCF-Report-on-the-freedom-of-speech-2.pdf and

http://your-story.org/israel-minister-of-welfare-moshe-kahlon-retaliates-against-shared-parenting-activists-300637/

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http://ccfisrael.org/wp-content/uploads/2011/12/CCF-Report-on-the-freedom-of-speech-2.pdfhttp://your-story.org/israel-minister-of-welfare-moshe-kahlon-retaliates-against-shared-parenting-activists-300637/http://ccfisrael.org/wp-content/uploads/2011/12/CCF-Report-on-the-freedom-of-speech-2.pdfhttp://your-story.org/israel-minister-of-welfare-moshe-kahlon-retaliates-against-shared-parenting-activists-300637/


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were not.

IX. COMMERCIAL ACTIVITY

These State official Defendants perform commercial activity in the US and in NJ,

directly or indirectly. They certainly do so via the services of co-Defendants, IFCJ and

NIF, who aid and abet them by actively soliciting funds in the United States and NJ. For

example, Defendants Kahlon, Shteinmetz, Artman and Milner work in tandem with IFCJ

to raise donations of evangelicals and Jews in the US to build and expand the contact

Centers, for the separation of fathers from children, and to channel donations to radical

feminist organizations that spread their hate propaganda against men, that fuels the

crusade against fathers.

IFCJ also collects funds for various Kahlon and Shteinmetz projects, such as

kindergartens operated by militant feminist groups whose budget partially comes from

donations solicited in the US. See also, the city without violence project which

Kahlon, Shteinmetz and Milner are in charge of. That project is built on the premise

that all men are inherently violent and the best treatment for them is draconian measures

of expulsion from home and intensification of false incrimination efforts. The harmsdescribed in the complaint had caused a direct effect in NJ. One such effect is the fact

that Plaintiff Ben Haims daughter has not been returned to US, she is absent from his

life in NJ, and he is suffering emotional pain on American soil, as well as massive

financial harm. A NJ citizen, Adi Vaxman, inimitably familiar with the situation calls it

the holocaust of men, and rightfully so.

X. TORTIOUS ACT

The acts and/or omission, and/or the blindness to them has direct effect in NJ.

Plaintiff Ben Haims daughter has not been returned. His business and employment

ruined because he was trapped in Israel under a bogus ne exeat injunction issued against

him, by Edri with full knowledge that he suffer economic losses in NJ. The State Court

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in NJ and other officials in NJ must spend resources to fight the particular injustice and

stubbornness. The children of Fefer in NJ do not get child support simply because the

non-custodian mother is exempt due to her sex, and the husband of Adi Vaxman has

suffered traumas as described in NJ.

XI. MINIMUM CONTACTS

On the question of minimum contacts, and NJs long arm statute, whether under

FSIA or International Shoe/Helicopteras, see Cassirer v. Kingdom of Spain, 616 F.3rd

1019 (9th Cir. 2010), recovery of Nazi stolen art from Spanish museum asserting

immunity. The museum borrows art from American museums, encourages S residents

to visit, accepts entrance fees, sells items to US citizens, maintains website selling

admission tickets using US credit cards. The museum said that the US activities are de

minimis. The 9th Circuit did not agree. The commercial activity, as are the minimum

contacts, a case-by-case determination. It is a question of what Defendant does, not the

reasons for the act. These Defendants have purposely directed their acts towards NJ.

Arbel knew that her acts in Ben Haims case will defy orders of the Courts of New

Jersey, and will cause the nonreturn of a child to NJ. Defendant Edri trapped Ben Haimin Israel with a bogus ne exeat order, thereby causing all Ben Haims business in NJ to

collapse. He is also in contact with New Jersey rabbis that he sent to apply pressure on

Ben Haim. The welfare Defendants solicits donations in NJ, either themselves (Kahlon)

or via IFCJ.

XII. ALIENTS AND CITIZENS

Defendants allege that no alien is suing, Def.Brief p.12. This complaint attempts

to combine ATS with the TVPA and the Friendship Treaty. TVPA and the Friendship

Treaty create nexus to the US, since there are American fathers and children being

affected. For purposes of ATS, Plaintiff Ben Haim is definitely an alien with H visa.

Defendant Ben Haim is an alien, not a permanent resident. He qualifies as ATS

Plaintiff. The co-Plaintiffs are citizens non-residents with a center of life in Israel. They

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are therefore considered stateless for purposes of diversity. The two other Plaintiffs are

US citizens who live in Israel, but their US citizenship is dormant (no tax filings, no

receipt of citizenship services). They maintain US citizenship as an insurance policy for

a rainy day. The only advantage of maintaining a US citizenship could be the ability to

rely on the Friendship Treaty.

The revised JVCA statute does not apply. Ben Haim is not a permanent resident.

However, he is identified as American because of actual residence, and because under

the Hague Abduction Treaty, he is considered American and entitled to seek diplomatic

and judicial remedies from American Authorities to cause the return of his daughter to

NJ.

XIII. HAGUE CONVENTION ALLOWS PRIVATE SERVICE OVERSEAS

Some Defendants were served by overnight delivery, RRR, and some were served

in-person at their place of work. In most cases, a signature was obtained. Here, the

Central Authority in charge of Hague Services is under Defendant Neemans watch.

The Central authoritys objectivity was therefore negated in advance. In a parallel

Wisconsin case, the Central Authority refused to execute a request ordered by a federal

Judge.Israel stated no opposition to Art. 10(a)7 of the Hague Convention (mail). As to those

not served by mail, they admit adequate notice, and do not allege prejudice. Those

served at work, their actual address is unknown. Internally, Israel does allow in hand

service. Routinely in Israel summonses are served anywhere where a Defendant may

have some link to the address: places of employment, addresses of parents, relatives,

and even old addresses. Israel is not a formal service jurisdiction. It is a notice based

jurisdiction. Ultimately, a confession of receipt from any source supersedes the

formalities.

In a recent case from NY, Sbarro Inc. v. Holdings, 32 Misc.3d 217, 921 N.Y.S.2d

837, 2011 N.Y. Slip Op. 21154 (N.Y. Sup. Ct., 2011), the Court held: The use of the

7 http://www.hcch.net/index_en.php?act=authorities.details&aid=260

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https://apps.fastcase.com/Research/Pages/Document.aspx?LTID=nVJwFDhBeM%2BIuLOgqtDxqKIy1mh38BIV3DakmdWEiTkdIl0kNXOCaMXXsfdZHz4K0c6kmcekoKE0FyXSdgtu8eVLk1Z59RIbtXe0zKz%2BJjX%2FjxroJz9Mm1n2NRELL8l3https://apps.fastcase.com/Research/Pages/Document.aspx?LTID=nVJwFDhBeM%2BIuLOgqtDxqKIy1mh38BIV3DakmdWEiTkdIl0kNXOCaMXXsfdZHz4K0c6kmcekoKE0FyXSdgtu8eVLk1Z59RIbtXe0zKz%2BJjX%2FjxroJz9Mm1n2NRELL8l3https://apps.fastcase.com/Research/Pages/Document.aspx?LTID=nVJwFDhBeM%2BIuLOgqtDxqKIy1mh38BIV3DakmdWEiTkdIl0kNXOCaMXXsfdZHz4K0c6kmcekoKE0FyXSdgtu8eVLk1Z59RIbtXe0zKz%2BJjX%2FjxroJz9Mm1n2NRELL8l3https://apps.fastcase.com/Research/Pages/Document.aspx?LTID=nVJwFDhBeM%2BIuLOgqtDxqKIy1mh38BIV3DakmdWEiTkdIl0kNXOCaMXXsfdZHz4K0c6kmcekoKE0FyXSdgtu8eVLk1Z59RIbtXe0zKz%2BJjX%2FjxroJz9Mm1n2NRELL8l3https://apps.fastcase.com/Research/Pages/Document.aspx?LTID=nVJwFDhBeM%2BIuLOgqtDxqKIy1mh38BIV3DakmdWEiTkdIl0kNXOCaMXXsfdZHz4K0c6kmcekoKE0FyXSdgtu8eVLk1Z59RIbtXe0zKz%2BJjX%2FjxroJz9Mm1n2NRELL8l3


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Central Authority, however, is not mandatory (see, Canzio & Singh) Service of Process

and the Hague Convention, NYLJ, Aug. 27, 2010). Article 19 of the Hague Convention

permits service by any method by the internal laws in the country in which service is

made. Defendants did not show that if the kind of service made, if made in connection

with an internal service of process, would have been dismissed.

XIV. ACT OF STATE, POLITICAL QUESTION, COMITY

There is nothing political about discrimination based on sex, and the torture of

those who join the targeted class (divorcing men, sperm theft victims). The foreign

affairs of Israel or the US are not in question. It is the stubborn maintenance of these

laws and policies that embarrass Israel among nations, and not vice versa. France for

example granted Israeli men refugee status, because of the torture the escaped from.

Nations handle their political affairs without indiscriminately exposing innocent

people to racial or sex-based apartheid. In the same vein, pre-Mandela South Africa

could argue the same thing vis a vis victims of apartheid. Other than invoking the

principles and citing cases, Defendants did not set forth why the institutions and organs

that they powerfully control must discriminate against men, separate men from children,coerce men to appear before religious tribunals where no evidence is required (ever),

throw men to jail for unaffordable child supports, or other concocted reasons, forbid

them from leaving their country, stripping them of every right (to carry driving licenses,

to maintain professional licenses, to use credit cards, to use banks, to own

corporations8), seize their properties and transfer to women, offer no unbiased forum for

dispute resolution, and massively engage in hate propaganda.

Act of State similarly encapsulates the reluctance of a Court to complicate foreign

affairs by validating or invalidating an act of a sovereign. But the sovereign in question

has committed itself to multilateral and international obligations, which are obviously

8 See Un website ICCPR 105th Session, Report of Coalition for children and Family:

http://www2.ohchr.org/english/bodies/hrc/docs/ngos/CCAF_Israel_HRC105.pdf

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being violated, in derogation of its sovereignty.

XV. F.N.C. INAPPLICABLE

The State of Israel does not offer any remedies for these Plaintiffs against these

Defendants. The Courts of Israel are blocked to men who are in divorce proceedings.

See more information in the two reports prepared by the Coalition for Children and

Family in Israel, a UN civil society, and submitted to the UN ICESCR Cttee (11/2011)

and ICESPR Cttee (7/2012),

Deference should be made to respect Plaintiffs choice of forum, and Plaintiffs

Ben Haims residence here. If Ben Haim is required to travel to Israel, he will surely be

arrested wither on an ex parte order of the rabbinical court9, or simply at a request from

his wife at any police station. Moreover, there is no adequate forum in Israel, because

Defendant Arbels power over Israels Judiciary and ability to pull docket assignments

to every mans rights cases. The burden of establishing an adequate alternative forum is

on Defendants.

There exists another alternative forum, which is the International Court of Justice,

under the Friendship10 Treaty, but the US Department of State must decide to prosecute

it on behalf of all aggrieved persons. See Art XXIV (2) of the Friendship Treaty: Anydispute between the Parties as to the interpretation or application of the present Treaty,

not satisfactorily adjusted by diplomacy, shall be submitted to the International Court of

Justice, unless the Parties agree to settlement by some other pacific means.

9 On the practice of arresting men who arrive in Israel to testify at abduction cases, see Report sent to the Hague Permanent

Bureau: http://ccfisrael.org/wp-content/uploads/2012/01/CCFIsrael-report-to-Hague-Child-Abduction-Convention-

2012.pdf, and explanations here: http://ccfisrael.org/eng/child-abduction-report-to-hague-permanent-bureau10 InMedelln v. Texas, 552 U.S. 491 (2008), the Court stated: Indeed, we have held that a number of the "Friendship,

Commerce, and Navigation" Treaties cited by the dissent, seepost, Appendix B, are self-executing--based on "the languageof the[se] Treat[ies]." See Sumitomo Shoji America, Inc., supra, at 180, 189-190. InKolovratv. Oregon, 366 U. S. 187, 191,

196 (1961), for example, the Court found that Yugoslavian claimants denied inheritance under Oregon law were entitled to

inherit personal property pursuant to an 1881 Treaty of Friendship, Navigation, and Commerce between the United States

and Serbia. See also Clarkv.Allen, 331 U. S. 503, 507-511, 517-518 (1947) (finding that the right to inherit real propertygranted German aliens under the Treaty of Friendship, Commerce, and Consular Rights with Germany prevailed over

California law). InZenith Radio Corp. v. Matsushita elec. Industries, 494 DF. Supp 1263, (E.D.Pa 1980) provides that

Friendship Treaties are self executing. A self executing provision of a treaty is legally equivalent to a federal statute.

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http://ccfisrael.org/wp-content/uploads/2012/01/CCFIsrael-report-to-Hague-Child-Abduction-Convention-2012.pdfhttp://ccfisrael.org/wp-content/uploads/2012/01/CCFIsrael-report-to-Hague-Child-Abduction-Convention-2012.pdfhttp://ccfisrael.org/wp-content/uploads/2012/01/CCFIsrael-report-to-Hague-Child-Abduction-Convention-2012.pdfhttp://ccfisrael.org/eng/child-abduction-report-to-hague-permanent-bureauhttp://ccfisrael.org/wp-content/uploads/2012/01/CCFIsrael-report-to-Hague-Child-Abduction-Convention-2012.pdfhttp://ccfisrael.org/wp-content/uploads/2012/01/CCFIsrael-report-to-Hague-Child-Abduction-Convention-2012.pdfhttp://ccfisrael.org/eng/child-abduction-report-to-hague-permanent-bureau


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WHEREFORE, the motion to dismiss should be denied. If pleading is

insufficient, Plaintiff request opportunity to amend. If jurisdiction remains contested,

plaintiffs request jurisdictional discovery. If service of process is insufficient, a judicial

decree from this Court addressed to the Central Authority in Israel may induce it to

comply with the Hague Convention.

Dated: July 3, 2012

Fair Lawn, NJBy: /s/ Sharon Ben Haim

Sharon Ben Haim, pro se

Sol Havivi, pro se

Gamliel Elmalem, pro se

6-05 Saddle Rd. #225Fair Lawn, New Jersey 07410(201) 625-6377 (fax)

(917) [email protected]

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Documents

Ben-Haim Brief in Opposition to State Officials Motion to Dismiss