PASADENA, Calif. (CN) – Siding with a lower court, a Ninth Circuit panel ruled Friday that former Israeli Defense Minister Ehud Barak is immune from civil liability in a U.S. court for commanding a 2010 raid on a humanitarian flotilla that left 10 people dead in the Mediterranean Sea.
The family of Furkan Doğan, a U.S. citizen killed in the raid, said in their 2015 lawsuit that Barak authorized Israeli soldiers to commit extrajudicial killing and torture, international human rights violations that preclude immunity.
U.S. District Judge Otis D. Wright II, dismissed the lawsuit on the grounds that Barak is protected by foreign sovereign immunity laws.
The State Department had previously submitted to the court an official suggestion of immunity.
The Ninth Circuit panel affirmed Wright’s dismissal, writing in an 18-page opinion Friday that Barak is entitled to “common law immunity because exercising jurisdiction over him in this case would be to enforce a rule of law against the sovereign state of Israel.”
U.S. Circuit Judge Carlos T. Bea, who penned the opinion, wrote that while the Doğan family brought the lawsuit under the Torture Victim Protection Act, the act doesn’t revoke common law foreign official immunity protections.
Bea wrote that under the Doğan’s reading of the act, foreign officials would be hauled into U.S. courts by any person whose family member was killed in a foreign government’s military operations.
“The judiciary, as a result, would be faced with resolving any number of sensitive foreign policy questions which might arise in the context of such lawsuits,” Bea, a George W. Bush appointee, wrote in the opinion. “It simply cannot be that Congress intended the TVPA to open the door to that sort of litigation.”
Jean-Claude André, an attorney for the state of Israel from the firm Sidley Austin, argued in court papers that when a foreign government official’s immunity is in question over conduct stemming from official acts, the “historic practice” is for the court to defer to the Executive Branch.
But the panel declined to weigh in Friday on whether absolute deference or substantial weight should be given to the U.S. government’s granting of immunity to Barak.
Sidley Austin declined to comment.
In oral arguments before the panel in April 2018, Doğan family attorney Dan Stormer of Hadsell Stormer & Renick argued torture is not an “official act” protected by foreign sovereign immunity laws.
Stormer's firm said in a statement it is “deeply disappointed” with the ruling.
“Furkan Doğan was an unarmed American citizen murdered by the Israeli military while on a mission to deliver humanitarian aid to Gaza. With its opinion today, the court closes its doors to his grieving parents,” the firm said.
“The court’s opinion unfortunately undermines well-established legal precedents prohibiting acts of torture and extrajudicial killing by foreign government officials. It also erodes the bedrock principle that no one is above the law. We believe there are significant errors in the court’s opinion. We are therefore considering all options including seeking rehearing and, if necessary, Supreme Court review,” the firm said.
In May 2010, Israeli Defense Forces intercepted six vessels in the Mediterranean Sea carrying humanitarian supplies. The group of vessels, sailing in international waters and calling themselves the Gaza Freedom Flotilla, included over 700 people delivering material aid to citizens of Gaza in Palestine.
IDF soldiers raided the Mavi Marmara, one of the six ships in the flotilla, killing nine civilian passengers. Eighteen-year-old Doğan, a U.S. citizen born in Troy, New York, but living permanently in Turkey, was aboard and filming the operation.
Doğan was shot four times with bullets fired from an Israeli military helicopter, according to court papers. He was shot a fifth time in the face while lying on the ship.
U.S. Circuit Judge Mary Murguia and U.S. District Judge Stanley Bastian, sitting by designation from the Eastern District of Washington, joined in the opinion. Murguia was appointed by Bill Clinton, Bastian by Barack Obama.
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