FSIA and a Jus Cogens Exception for Acting Within the Scope of Authority

The complaint alleges, on information and belief, that Israeli helicopters were present in Qana and able to observe civilians in the UN compound. Appellants further allege that communications from these helicopters put General Ya‘alon on actual notice of the presence of civilians in the compound. The IDF subsequently shelled Qana, and Plaintiffs claim that General Ya‘alon, acting “under the actual or apparent authority and/or color of law of the State of Israel, … failed to take appropriate and necessary measures to prevent troops” from shelling civilians there. Compl. ¶¶ 50, 98. More than a hundred died and many others were injured….

Appellants next argue that General Ya‘alon acted contrary to jus cogens norms of international law and therefore outside any scope of authority that would provide protection from suit. [A] jus cogens norm, also known as a “peremptory norm” of international law, “is a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.” Siderman de Blake v. Republic of Arg., 965 F.2d 699, 714 (9th Cir.1992);see also Princz, 26 F.3d at 1173. Appellants claim that any act that violates a jus cogens norm must, by definition, be outside the scope of the individual’s authority because no sovereign can authorize jus cogens violations. Appellants claim that their allegations of war crimes, extrajudicial killing, crimes against humanity, and cruel, inhuman or degrading treatment or punishment constitute violations of jus cogens norms.

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. In Princz, we rejected this precise argument in the context of the waiver exception to the FSIA. 26 F.3d at 1173. Amici had argued that the Third Reich implicitly waived Germany’s sovereign immunity under the FSIA by violating jus cogens norms. Id. Relying in part on Siderman, 965 F.2d at 715, this Court held that although “it is doubtful that any state has ever violated jus cogens norms on a scale rivaling that of the Third Reich,” even violations of that magnitude do not create an exception to the FSIA where Congress has created none. Princz, 26 F.3d at 1174. Although appellants put a new twist on the argument-that jus cogens violations can never be authorized by a foreign state and so can never cloak foreign officials in immunity-the same prohibition on creating new exceptions to the FSIA holds. Neither the dissent by Judge Cudahy nor the opinion from the Southern District of New York following Filartiga, which a majority of this Court declined to follow in Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 820 & 826 n. 5 (D . C.Cir.1984) (Bork, J., concurring) (Robb, J., concurring), see Al Odah v. United States, 321 F.3d 1134, 1149 (D.C.Cir.2003) (Randolph, J., concurring), rev’d on other grounds, Rasul v. Bush, 542 U.S. 466 (2004), nor any of the cases appellants cite from foreign courts are persuasive or sufficient for this Court to carve another exception into the FSIA.

We note that the reasoning this Court espoused in Princz applies equally well to our holding here: We think that something more nearly express is wanted before we impute to the Congress an intention that the federal courts assume jurisdiction over the countless human rights cases that might well be brought by the victims of all the ruthless military juntas, presidents-for-life, and murderous dictators of the world, from Idi Amin to Mao Zedong. Such an expansive reading of § 1605(a)(1) would likely place an enormous strain not only upon our courts but, more to the immediate point, upon our country’s diplomatic relations with any number of foreign nations. In many if not most cases the outlaw regime would no longer even be in power and our Government could have normal relations with the government of the day-unless disrupted by our courts, that is.

26 F.3d at 1174 n. 1. In this case, Plaintiffs do not make allegations against an Idi Amin or a Mao Zedong-they assert that a general in charge of producing intelligence reports for the Israeli Prime Minister committed war crimes and unlawful killings, among other things, because he failed to prevent a military operation that killed civilians in southern Lebanon. These allegations are not sufficient to abrogate the immunity that Congress conferred upon foreign states. We emphasize that our rejection of the purported jus cogens exception in no way intends to imply that the alleged inaction by a military officer against whom there are no allegations of personal acts of illegality would fall within such an exception even if we were to recognize the existence of such an exception to the FSIA immunity.

Plaintiffs also argue that General Ya‘alon’s actions were violations of Israeli law and of jus cogens norms and, plaintiffs contend, disabled from authorizing their violation). According to plaintiffs, this forecloses his claim to have acted as an agency or instrumentality of the State of Israel. The majority takes plaintiffs’ arguments to be an assertion that § 1603(b)(2) contains an “unenumerated exception for violations of jus cogens norms,” Maj. Op. at 13, and “an exception … for foreign officials who violate their state’s laws,”id. at 15.The majority has little trouble finding that we “rejected this precise argument”-in the context of § 1605’s waiver provisions-in Princz v. F.R.G., 26 F.3d 1166, 1173 (D.C.Cir.1994). Because I understand plaintiffs to make somewhat different assertions about the nature of FSIA immunity for individuals, I reject the argument for somewhat different reasons.

In Princz, we held that a foreign state does not impliedly waive its sovereign immunity under § 1605(a)(1) by committing violations of jus cogens.The suit in that case was against the Federal Republic of Germany, so there was no question that the FSIA entitled it to immunity in the absence of a specific exception, such as that of § 1605(a)(1). Here, however, the question is whether foreign sovereign immunity applies to General Ya‘alon in the first place. Under our cases finding an individual to be an “organ” of a foreign state for purposes of § 1603(b)(2), immunity turns on whether Ya‘alon acted in his official capacity as an agency or instrumentality of Israel during the events in question. Plaintiffs’ argument that he did not is thus quite distinct from the argument rejected in Princz.

I agree with my colleagues, however, that our reasoning in Princz cautions against imputing to the FSIA, without “something more nearly express” from Congress, any bright-line rule that would call on us to “assume jurisdiction over the countless human rights cases” that could be brought against ruthless and murderous officials all over the world. See Maj. Op. at 14 (quoting Princz, 26 F.3d at 1174 n. 1). Plaintiffs’ argument, though distinct from that addressed in Princz, would have precisely that effect. As the majority notes, no court decision compels any such proposition. Id. at 13.

Besides implying a vast extension of our jurisdiction, plaintiffs’ argument poses another concrete problem. They assert that their characterization of Ya‘alon’s conduct as violating jus cogens norms and Israeli law establishes an irrebuttable presumption that he acted without official authority. See Belhas Br. at 24 (“FSIA immunity does not encompass claims against individuals for violations of jus cogens norms, which can never be within the scope of an official’s authority.”); id. at 32 (“The assault on the United Nations compound and unarmed civilians is clearly contrary to the laws which Israel itself views as binding. As such, Defendant acted outside the scope of his lawful authority and is not immune.”). This approach merges the merits of the underlying claim with the issue of immunity: if Ya‘alon’s actions were torture and extrajudicial killing, then they were necessarily unauthorized and he has no claim to immunity; if they were not torture and extrajudicial killing, he would enjoy immunity. Thus immunity could be determined only at the moment of resolution on the merits, at which point it would commonly be irrelevant. See Foremost-McKesson, Inc. v. Islamic Republic of Iran, 905 F.2d 438, 443 (D.C.Cir.1990) (“[S]overeign immunity is an immunity from trial and the attendant burdens of litigation, and not just a defense to liability on the merits.”(citation omitted)).

In any event, we can resolve the present case without reaching a final resolution of the role that claimed violations of jus cogens or Israeli law might play in assessing Ya‘alon’s status as agent of a foreign state. The conduct alleged in the complaint, notwithstanding plaintiffs’ characterization of that conduct, simply does not amount to such a violation. The most substantial allegations against General Ya‘alon assert that he “participated in the decision to target the center of the UN compound during the course of the attack,” Complaint ¶ 35, and commanded soldiers involved in the Qana attack, id. ¶ 52.While plaintiffs characterize this conduct as violating both international and Israeli law, they point to no case where similar high-level decisions on military tactics and strategy during a modern military operation have been held to constitute torture or extrajudicial killing under international law, see Restatement (Third) of Foreign Relations Law § 702 cmt. g (1987); Geneva Convention for the Amelioration of the Wounded and Sick in Armed Forces in the Field art. 3(1)(d), Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31, or under the Torture Victim Protection Act (“TVPA”), 28 U.S.C. § 1350 (note). Thus we need not decide whether a clear violation of jus cogens would bar a finding that a defendant acted within the scope of his authority; any inroad that the nature of the conduct alleged here might make against the inference of such authority is amply offset by the letter of the Israeli ambassador confirming the view that General Ya‘alon acted within the scope of his authority.