No Rehearing in Suit Over Israeli Attack on Humanitarian Flotilla

Former Israeli defense minister and one-time Israeli prime minister Ehud Barak, in a photo taken at the Pentagon in 2010.

PASADENA, Calif. (CN) – The Ninth Circuit declined to revisit its conclusion that former Israeli defense minister Ehud Barak is immune from civil liability for ordering a deadly raid in the Mediterranean Sea, denying a petition to rehear the case brought by the family of a raid victim.

Barak commanded a 2010 raid on a humanitarian flotilla that left 10 people dead, including 18-year-old U.S. citizen Furkan Doğan. An Israeli military helicopter shot Doğan four times and then again after he fell.

Ahmet and Hikmet Doğan sued in 2015 on behalf of their son, claiming Barak’s orders to Israeli soldiers led to extrajudicial killings and torture and international human rights violations that preclude immunity.

A federal judge dismissed the lawsuit, finding Barak is protected by foreign sovereign immunity laws.

On appeal, Doğan family attorney Dan Stormer of Hadsell Stormer & Renick told the Ninth Circuit panel the actions authorized by Barak, including extrajudicial killings, are not an “official act” protected by foreign sovereign immunity laws.

But the Ninth Circuit panel affirmed the lower court’s dismissal in August, writing 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.”

In a petition for rehearing en banc, Stormer argued the ruling conflicted with the Ninth Circuit’s ruling in Hilao v. Marcos, which held that that foreign government officials are not immune for violations of jus cogens – the principles which form the norms of international law that cannot be set aside.

The ruling also creates a circuit split with the D.C Circuit, which found in Lewis v. Mutond that the “official nature of the acts in question is not sufficient to trigger immunity,” the petition said.

Additionally, Stormer said the panel failed to analyze the purpose of the Torture Victim Protection Act and Congress’ intent in passing it.

“By granting immunity, the panel subjects U.S. courts to the whims of those foreign governments willing to embrace their officials’ acts of torture and extrajudicial killing, acts that violate standards accepted by virtually every nation as their own,’ Stormer wrote in the rehearing petition. “This does not simply disregard Congress’s intent in passing the TVPA, it literally turns Congress’s intent on its head.”

U.S. Circuit Judges Mary Murguia, appointed by Bill Clinton, and Carlos T. Bea, a George W. Bush appointee, voted Wednesday to deny the petition for rehearing. U.S. District Judge Stanley Bastian, a Barack Obama appointee sitting by designation from the Eastern District of Washington, recommended denial of the petition.

None of the active judges on the Ninth Circuit bench called for a rehearing of the case either.

In a statement, Stormer called the decision “a tremendous setback for American citizens.”

“In this case an American citizen was murdered in cold blood and this decision gives his murderers full immunity. It is contrary to the very essence of the rule of law and we are saddened by the court’s acquiescence to this travesty,” Stormer said.

Attorneys for the state of Israel did not immediately respond to a request for comment.

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