The World in U.S. Courts: Winter 2016 - Alien Tort Statute (ATS)/Torture Victims Protection Act (TVPA)/Political Question Doctrine/Foreign Sovereign Immunity Act (FSIA)/ Act of State Doctrine/Foreign Immunity Doctrine
US citizen Ahmet Dogan, individually and on behalf of his son, sued former Israeli Prime Minister Ehud Barak for damages under the ATS, TVPA, and the Anti-Torture Act. The suit alleged that the son’s death while aboard a flotilla intercepted by the Israeli military constituted torture and an extra-judicial killing in violation of federal and international law, for which Barak was personally responsible. Barak allegedly planned the operation to intercept the flotilla, directed the operation in real time, and personally authorized the Israeli Defense Forces to board and take over the flotilla.
As relevant here, Barak moved to dismiss based upon the foreign official immunity doctrine, arguing he could not be sued in federal court in the US for public acts performed on behalf of a sovereign nation. The District Court in Los Angeles agreed.
The Court began by explaining that US common law provides that certain individuals acting on behalf of friendly foreign sovereigns should not be subject to the jurisdiction of another nation, on the rationale that sovereign states should respect each other’s independence and address potential disputes through diplomatic negotiations rather than judicial proceedings. The law provides that if the US State Department makes a “suggestion of immunity” in response to a request by another country, the Court should defer to it. If no such suggestion is made, the Court may conduct an independent inquiry to decide for itself whether the requisites for immunity exist. Here, both the State Department’s suggestion of immunity and the Court’s independent inquiry counseled dismissal of Dogan’s claims.
With respect to the first step, the US recommended immunity for Barak: (i) because Dogan’s suit challenges Barak’s exercise of power as an official of the Israeli government, (ii) to avoid embarrassing the Executive Branch through antagonistic jurisdiction, and (iii) to allow the political branches discretion to resolve the issue through diplomacy. In response, Dogan first argued that deference to the State Department’s Suggestion of Immunity was inappropriate because absolute deference to the executive in foreign relations violates the separation of powers between the executive and judicial branches. The Court’s principal response was that judicial deference to such Suggestions is a fully independent and voluntary decision by the judiciary to relinquish control to the branch it believes is best positioned to resolve these issues—the executive branch.
As an alternative ground for its decision, the Court determined independently that Barak’s acts were indisputably official public acts entitling him to immunity. The Court was also convinced that the issue should be handled diplomatically, given that it unfolded amidst precarious US-Middle East relations and that diplomatic responses to the event in fact ensued.
The Court concluded by addressing Dogan’s arguments that foreign official immunity does not apply to those who commit torture or extra-judicial killings, as he alleged was the case with Barak. The Court found no basis to carve out such an exception to the doctrine, and in the same vein concluded that the TVPA did not abrogate the common law foreign official immunity doctrine.
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