In appeal of lawsuit against retired Israeli General by victims of battles between Hezbollah and Israel, District of Columbia Circuit finds (1) that lower court lacked jurisdiction under Foreign Sovereign Immunities Act because General was acting in his official governmental capacity, and (2) that Plaintiffs contention that such official loses immunity once he or she leaves office, or violates jus cogens norms lacked merit
Plaintiffs filed suit in the District of Columbia federal court, claiming that they suffered injuries and death during a battle between Israel and the terrorist Hezbollah at the Lebanese border in April 1996. The Defendant is Moshe Ya'alon, a retired Israeli general who served as the Head of Army Intelligence from 1995 to 1998. He allegedly was one of the responsible commanders during that attack, and Plaintiffs had him served with process while Defendant was a fellow at a Washington, D.C., think tank.
The district court dismissed the case for lack of jurisdiction based on the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. 1602. On Plaintiffs' appeal, the U.S. Court of Appeals for the District of Columbia Circuit affirms. As to the FSIA issue, the Court concludes that the Plaintiffs had failed to allege any acts that [Defendant] committed outside the scope of his official capacity.
"Upon review of their complaint it appears that [Plaintiffs] pleaded themselves out of court. The complaint identifies nothing that [Defendant] is alleged to have done in an individual capacity, or other than as an agent or instrumentality of the state of Israel. Indeed, the complaint alleges nothing that [Defendant] did at all. The factual allegations of tortious conduct all concern acts allegedly done by the military of the state of Israel in the conduct of hostile operations."
"The personal liability of [Defendant] seems to be entirely based on the proposition that the "˜defendant, acting singly and in concert with others,' conducted a military operation which was rather plainly on behalf of the state of Israel. The complaint alleges nothing that [Defendant] allegedly did himself. Indeed, the critical portions of the complaint alleging specific wrongful "˜acts' by [Defendant] which allegedly caused the harm to the Plaintiffs all consist of claims that, at a time when [Defendant] "˜knew or should have known that Lebanese civilians sought shelter' ...., he did nothing to prevent it. Since there is nothing in an individual capacity that [Defendant] or any other individual not acting as an agent of the Israeli government could have done to stop the military actions ..., on the face of Plaintiffs' complaint, it is apparent that any argument that he acted in an individual capacity rendering him unprotected by the FSIA is meritless."
"We have no difficulty in holding that the district court properly ruled that the FSIA does not extend jurisdiction over this action against an officer for actions committed by the state in whose army he served." [Slip op. 5 6]
The Court also rejects, without expressly deciding, the Plaintiffs' argument that the FSIA does not apply to a foreign official who leaves office after committing the challenged acts and before the lawsuit is filed.
"[Plaintiffs] ask us to hold that a public official protected by the sovereign immunity of his country at the time he performs acts on behalf of the government loses that protection on the day he resigns or reaches the expiration of his term. Aside from the fact that such a holding makes no practical sense, it would be a dramatic departure from the common law of foreign sovereign immunity, as codified in the FSIA."
"The Supreme Court recently reiterated that one "˜well recognized' purpose of the FSIA was the "˜codification of international law at the time of the FSIA's enactment.' ... In 1976, it was well settled that sovereign immunity existed for "˜any other public minister, official, or agent of the state with respect to acts performed in his official capacity if the effect of exercising jurisdiction would be to enforce a rule of law against the state.' RESTATEMENT (SECOND) OF FOREIGN RELATIONS LAW OF THE UNITED STATES Section 66(f) (1965). The common law of foreign sovereign immunity made no distinction between the time of the commission of official acts and the time of suit. When Congress codified the common law in the FSIA, it retained this same protection for foreign officials." [Slip op. 7]
Finally, Plaintiffs argued (creatively) that [Defendant] acted contrary to jus cogens norms of international law and thus [acted] outside the scope of his authority. "It is not necessary for this Court to reach the issue of whether the acts alleged by Plaintiffs constitute violations of jus cogens norms because the FSIA contains no unenumerated exception for violations of jus cogens norms. [Slip op. 9]
Citation: Belhas v. Ya’alon, 2008 WL 398465 (D.C. Cir. February 15, 2008).
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