Published : Monday, April 16, 2018 | 5:47 PM
Attorneys representing the federal government urged a Ninth Circuit panel in Pasadena last week to uphold a federal judge’s finding that former Israeli Prime Minister Ehud Barak is immune from prosecution for ordering a 2010 raid on a humanitarian flotilla that left an American citizen and nine other civilians dead in the Mediterranean Sea.
Furkan Dogan, an 18-year-old U.S. citizen living in Turkey at the time, was killed when Israeli Defense Force commandos stormed the Mavi Marmara, one of six vessels in the flotilla.
His family said Dogan four times from a military helicopter and once point-blank in the face.
In a complaint filed in 2015 before the U.S. District Court for the Central District of California, Dogan’s family said Barak was defense minister at the time and personally ordered the raid. They sought to indict Barak for authorizing the soldiers to commit extrajudicial killing and torture, international human rights violations that preclude immunity.
U.S. District Judge Otis Wright II dismissed the case, finding Barak enjoys foreign sovereign immunity and saying the resolution of the case belonged with the executive branch, not with the court.
Dogan’s family went to the Ninth Circuit asking it to decide whether former foreign government officials can ever be held liable for actions authorized in their official capacity.
In arguments last Thursday in Pasadena, 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, a report on Courthouse News said.
When the U.S government has granted immunity, a case cannot go forward, he said.
Attorney Dan Stormer, representing Dogan’s family, said acts of torture, such as what happened to Dogan, can never be official acts, under the Torture Victim Protection Act.
U.S. Circuit Judge Mary Murguia pointed out immunity can’t extend to officials at any level who committed human rights violations, according to the Courthouse News report.
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. Torture, he added, is not an official act.
The State Department had earlier reviewed reports on the 2010 raid and agreed with Israel that Barak had acted in his official capacity based on its own assessment.
Dogan attorney 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.
“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,” Stormer said in the Courthouse News report.
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,” he said.
The judges did not indicate when they would decide on the matter.