Embassy Law Web Log   
Washington, DC, USA      

Immunity of Minister of Defense in U.S. Courts

On October 13, 2016 the United States District Court for the Central District of California ruled in favor of former Israeli Minister of Defense Ehud Barak in the matter Doğan v. Barak. Plaintiffs Ahmet and Himet Doğan, both Turkish nationals, filed suit against Mr. Barak on behalf of their son Furkan Doğan, who was killed during the Marmara Raid by Israeli Defense Force personnel in May 2010. In an effort to halt the Gaza Freedom Flotilla's attempt to run a blockade of Gaza, IDF officials raided the vessel and killed nine people including Furkan Doğan.

The Doğan party allege that Barak's direct authorization of the use of force on the day of the raid was in violation of the Alien Tort Claims Act, 28 U.S.C. § 1350, the Torture Victims Protection Act, 28 U.S.C. § 1350, and the Anti-Terrorism Act 18 U.S.C. § 2333. Plaintiffs believe that the killing of their son constitutes torture and extra-judicial killing in violation of federal and international law. Because it was Mr. Barak who ordered the dispatch of IDF troops to halt the flotilla raid, plaintiffs argue that Israel's former Minister of Defense is personally responsible for the death of their son. With the support of the United States government, Mr. Barak moved to dismiss the accusations and filed a suggestion of immunity.

Despite the claims of the Doğan party, Judge Otis D. Wright II upheld the U.S. and Israeli recommendation of immunity and dismissed the plaintiff complaints. Relying on precedent surrounding the separation of powers, the Court explains that under the doctrine of foreign official immunity and in the event that the State Department makes a suggestion of immunity, courts consistently defer to the executive and often dismiss the case because of the Executive's dominant role in the area of foreign policy. Under precedent, a party may move to dismiss an action for a lack of subject matter jurisdiction. Moreover, Judge Wright affirms that Barak's actions are irrefutably official public acts via the state of Israel that entitle him to immunity. -- Rachel Weinstein, Legal Assistant, Berliner Corcoran & Rowe LLP Washington, D.C.