PASADENA, Calif. (CN) – Attorneys for the federal government urged a Ninth Circuit panel Thursday to uphold a federal judge’s finding that Israeli Defense Minister Ehud Barak is immune from prosecution for commanding a 2010 raid on a humanitarian flotilla that left 10 people dead in the Mediterranean Sea.
The family of Furkan Dogan, the U.S citizen killed in the raid, say Barak authorized Israeli soldiers to commit extrajudicial killing and torture, international human rights violations that preclude immunity.
The Dogan family wants the Ninth Circuit to decide whether former foreign government officials can ever be held liable for actions authorized in their official capacity. U.S District Judge Otis Wright had dismissed the case, finding Barak enjoys foreign sovereign immunity.
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. One passenger later died from their wounds. Eighteen-year-old Furkan, a U.S. citizen born in Troy, New York, but living permanently in Turkey, was aboard and filming the operation when he was shot and killed by IDF soldiers.
Jean-Claude André, an attorney for the State Department and former assistant U.S Attorney, said in cases where 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.
When the U.S government has granted immunity, a case cannot go forward, he said.
Attorney Dan Stormer, representing Dogan’s family, argued under the Torture Victim Protection Act acts of torture “can never be official acts.”
U.S. Circuit Judge Mary Murguia pointed out immunity can’t extend to officials at any level who committed human rights violations.
But Justice Department attorney Lewis Yelin told the three-judge panel the allegations against Barak were “not sufficient to overcome” a congressional mandate that courts can’t “eliminate the role of the State Department” in cases of immunity.
“To hold anything contrary would create conflict with the branches,” Yelin said.
U.S District Judge Carlos Bea said certain protections granted by Congress were meant to extend to officials who authorize actions that qualify as official acts.
But he added: “Torture is not an official act.”
As part of an official diplomatic request from Israel, the State Department reviewed reports on the 2010 raid and agreed with Israel that Barak had acted in his official capacity based on its own assessment.
Andre said the U.S government disagreed Israeli soldiers had committed acts of torture or judicial killings during the operation.
Stormer said the outcome of the appeal marks the first time the challenge against foreign sovereign immunity, which he called “an outdated legal fiction,” will be addressed by the Ninth Circuit.
The Ninth District is bound by the U.S. Supreme Court’s 2010 decision in Yousuf v. Samantar, which held that while immunity determinations by the State Department concerning heads of state are entitled to “absolute deference,” determinations of “conduct-based immunity for official acts” are not entitled to deference when there have been violations of unshakable international standards like torture.
Andre said Barak’s actions could still be protected under common law.
Dogan was shot four with bullets fired from an Israeli military helicopter. After he lay on the ship, he was shot a fifth time in the face. “That’s what killed him, those are undisputed facts,” Stormer said.
“What this case will show us, is whether our courts have the courage to call torture and murder by their proper names, or whether they’ll be cowed by official sanction of lawless acts,” said Stormer.
Barak was originally served a summons for wrongful killing pursuant to the Torture Victim Protection Act, the Anti-Terrorism Act and the Alien Tort Claims Act in 2015.
Another attorney for the Dogan’s family, Brian Olney, said recent cases have “tightened the case for Barak’s civil responsibility.”
“There should not be one set of international rules for allies and another set for former state officials,” Olney said.
U.S. District Judge Stanley Bastian, sitting by designation from the Eastern District of Washington, rounded out the panel. The judges did not indicate when they would rule.