Case of the Day: Doğan v. Barak

The Mavi Mamara

The case of the day is Doğan v. Barak (9th Cir. 2019). I wrote about the district court decision in 2016, and I have also written about another case in the “Gaza flotilla lawfare” genre, Schermerhorn v. Israel, three times (when it was filed, at the district court, and in the DC Circuit). Ahmet and Himet Doğan, both Turkish nationals, were the parents of Furkan Doğan, a US citizen who took part in the Gaza flotilla’s attempt to run the blockade of Gaza and who was killed in the fighting that occurred when the IDF boarded the flotilla vessels after they refused to turn back. They sued Ehud Barak, then Israel’s Minister of Defense, under the Alien Tort Statute, the Torture Victim Protection Act, and the Anti-Terrorism Act. Barak moved to dismiss, supported by the United States, which filed a suggestion of immunity. The District Court dismissed and the Doğans appealed.

The court easily held that because Barak was acting under color of Israeli law and because a ruling for the plaintiffs would, in effect, be to enforce a rule of US law against the Israeli state, Barak had common law immunity. It went on to hold that Congress had not abrogated a foreign official’s common law immunity by enacting the TVPA and to refuse to recognize an exception to the rule of immunity for alleged jus cogens violations. The plaintiffs argued that the Fourth Circuit had recognized such an exception in 699 F.3d 763 (4th Cir. 2012). But the court rejected this reading of Yousuf:

Although the court ultimately held that foreign officials are not immune for jus cogens violations, it did not have occasion to consider whether that should be the case where the foreign sovereign has ratified the defendant’s conduct and the State Department files a Suggestion of Immunity on his behalf. Thus, the court in Yousuf had no occasion to consider whether jus cogens violations should be an exception to foreign official immunity because, as in the Marcos cases, the defendant was never given immunity in the first place. As far as we can tell, no court has ever carved out an exception to foreign official immunity under the circumstances presented here. We also decline to do so.

(Citation omitted).

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