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Keywords

lawsuittortjurisdictioncommon lawlegislative intentsovereign immunity

lawsuittortjurisdictionsovereign immunity

Related Cases

Dogan v. Barak

Facts

The case arose from the killing of Furkan Do_an, a U.S. citizen, during a military operation by the Israeli Defense Forces (IDF) against the Gaza Freedom Flotilla in 2010. The flotilla aimed to breach the Israeli naval blockade of Gaza, and when the IDF attempted to board the Mavi Marmara, the ship carrying Furkan, violence ensued, resulting in his death. The Do_ans filed a lawsuit against Barak, claiming he was responsible for the operation that led to their son's death.

The facts underlying this case occurred in the broader context of the decades-long IsraeliPalestinian conflict. Part and parcel of the conflict has been the ongoing struggle for the eastern Mediterranean tract of land known as the Gaza Strip ('Gaza'). In 1967, following an armed conflict known as the Six-Day War, Israeli Defense Forces ('IDF') took control of Gaza. Eventually, Israel entered into several peace accords with the Palestinian Authority, relinquishing control of Gaza but retaining full control over the territorial waters adjoining it.

Issue

Whether the parents of a U.S. citizen killed during a military operation conducted by a foreign nation can sue the foreign official responsible for the operation in federal court under the Torture Victim Protection Act.

We must decide whether the parents of a U.S. citizen killed during a military operation conducted by a foreign nation abroad may sue the foreign official responsible for the operation in federal court on different theories of wrongful death claims, under the Torture Victim Protection Act ('TVPA').

Rule

Foreign official immunity applies to acts performed in an official capacity, and the Torture Victim Protection Act does not abrogate this immunity unless there is clear legislative intent to do so.

The foreign official immunity doctrine bars this lawsuit for two reasons. First, the district court stated that federal courts generally have deferred to executive branch determinations of foreign official immunity.

Analysis

The court determined that exercising jurisdiction over Barak would effectively enforce a rule of law against the sovereign state of Israel, thus entitling him to common law foreign sovereign immunity. The court also found that the TVPA did not abrogate this immunity, as the majority of cases under the TVPA would not involve officials who would receive common-law immunity in the first place. Additionally, the court declined to recognize a jus cogens exception to foreign official immunity.

The court concluded that exercising jurisdiction over Barak in this case would be to enforce a rule of law against the sovereign state of Israel, and that Barak would therefore be entitled to common-law foreign sovereign immunity even under the Do_ans' preferred standard.

Conclusion

The appellate court affirmed the district court's decision to dismiss the complaint against Barak, holding that he was entitled to foreign official immunity.

We hold that such a suit may not be brought against him, and we affirm the district court's grant of immunity and its order dismissing the complaint.

Who won?

Ehud Barak prevailed in the case because the court upheld his claim to foreign sovereign immunity, determining that the lawsuit could not proceed against him.

The district court held that the foreign official immunity doctrine bars this lawsuit for two reasons.

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