Belhas v. Ya'Alon

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 10, 2007 Decided February 15, 2008

No. 07-7009

ALI SAADALLAH BELHAS ET AL.,

APPELLANTS

v.

MOSHE YA'ALON, FORMER HEAD OF ARMY INTELLIGENCE

ISRAEL,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 05cv02167)

Judith Brown Chomsky argued the cause for appellants.

With her on the briefs were Katherine Gallagher, Maria

LaHood, Jennifer Green, and James Klimaski.

Moira I. Feeney was on the brief for amicus curiae Center

for Justice & Accountability in support of appellant.

Robert N. Weiner argued the cause and filed the brief for

appellee Moshe Ya'alon.

Before: SENTELLE, Chief Judge; HENDERSON, Circuit

Judge; and WILLIAMS, Senior Circuit Judge.

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Opinion for the Court filed by Chief Judge SENTELLE.

Concurring opinion filed by Senior Circuit Judge

WILLIAMS.

SENTELLE, Chief Judge: Appellants brought this action

seeking damages for injuries and deaths resulting from a battle

between Israel and the terrorist organization Hezbollah along the

Lebanese border. The defendant, a retired general of the Israeli

Defense Forces (“IDF”), had become available for service of

process by visiting the United States as a fellow at a

Washington, D.C., think tank. The district court dismissed the

action for lack of jurisdiction, citing the Foreign Sovereign

Immunities Act of 1976, 28 U.S.C. §§ 1602–11 (“FSIA”).

Belhas v. Ya’alon, 466 F. Supp. 2d 127 (D.D.C. 2006). Because

the district court is entirely correct, we affirm.

I. BACKGROUND

We note first in setting forth the factual background of this

litigation that the district court entered the judgment of dismissal

on defendant’s motion under Rule 12(b)(1) of the Federal Rules

of Civil Procedure to dismiss the action for lack of subject

matter jurisdiction. As the district court noted, “[w]hile

generally a court must accept the allegation[s] in a complaint as

true and construe[] all inferences in plaintiffs’ favor on a motion

to dismiss, where the motion is based ‘on a claim of foreign

sovereign immunity, which provides protection from suit and

not merely a defense to liability . . . the court must engage in

sufficient pretrial factual and legal determinations to satisfy

itself of its authority to hear the case.’” Belhas, 466 F. Supp. 2d

at 128 (quoting Jungquist v. Al Nahyan, 115 F.3d 1020, 1027-28

(D.C. Cir. 1997)). Therefore, our background statement, while

drawn largely from the allegations of the complaint, will

occasionally make reference to other filings with the district

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court during the course of litigation.

Defendant, General Moshe Ya’alon, served as Head of

Army Intelligence from 1995 to 1998. During this time, Army

Intelligence conducted cross-border intelligence-gathering

operations with its small semi-autonomous air force. Army

Intelligence passed along communications intercepts, target

studies, daily intelligence reports, and risk of war estimates to

the Prime Minister and his cabinet.

Meanwhile, in April 1996, the IDF’s Northern Command,

a unit responsible for patrolling Israel’s northern border with

Lebanon, launched “Operation Grapes of Wrath” in southern

Lebanon. The operation’s purpose was to exert pressure on the

Lebanese government to disarm Hezbollah guerrilla forces

operating in southern Lebanon. At the beginning of the military

operation, the IDF broadcast warnings via radio to Lebanese

civilians living in the target area, stating that those who

remained in towns in the south of Lebanon would be considered

connected with Hezbollah. Several hundred civilians, including

Plaintiffs, chose to remain in southern Lebanon and relocate to

a United Nations (“UN”) compound in a town called Qana. The

complaint alleges that Ya’alon “also had command

responsibility for the attack,” although it offers no factual

allegation as to how he, as head of intelligence, fit in the chain

of command of the operational units conducting the shelling.

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

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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 are relatives of civilians who died or were

injured in the UN compound during the shelling of Qana. On

November 4, 2005, they brought suit under the Alien Tort

Claims Act (“ATCA”), 28 U.S.C. § 1350, and the Torture

Victim Protection Act of 1991 (“TVPA”), 28 U.S.C. § 1350

(note), alleging that the above acts constitute war crimes,

extrajudicial killing, crimes against humanity, and cruel,

inhuman or degrading treatment or punishment perpetrated by

General Ya’alon. On February 21, 2006, General Ya’alon

moved to dismiss for lack of subject matter jurisdiction and

attached a letter from the Ambassador of the State of Israel to

the United States. The letter stated that “anything [General

Ya’alon] did in connection with the events at issue in the suit[]

was in the course of [his] official duties, and in furtherance of

official policies of the State of Israel. To allow a suit against

[General Ya’alon] is to allow a suit against Israel itself.” Letter

from Daniel Ayalon, Ambassador to the United States, State of

Israel, to Nicholas Burns, Under Secretary for Political Affairs,

State Department (Feb. 6, 2006).

The district court ordered the case dismissed, holding that

the complaint only alleged acts done by General Ya’alon in his

official capacity as head of intelligence for the defense forces of

the State of Israel. Because the FSIA confers immunity upon

any individual acting in his official capacity for a foreign state,

and no exception to the FSIA applied to this case, the court held

that the FSIA bars suit. See Belhas, 466 F. Supp. 2d at 130

(citing 28 U.S.C. §§ 1603-04; El-Fadl v. Cent. Bank of Jordan,

75 F.3d 668, 671 (D.C. Cir. 1996)). The court rejected

Plaintiffs’ arguments that the FSIA does not protect officials

alleged to have acted outside their scope of lawful authority

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under international or domestic law and that the TVPA

abrogates the FSIA to the extent the statute applies to

individuals. Id. at 131-32. The district court also denied

Plaintiffs’ request for jurisdictional discovery. Id. at 133.

Plaintiffs appealed both conclusions.

II. ANALYSIS

On appeal, Plaintiffs contend that the district court erred by

granting Defendant’s motion to dismiss. Like all federal courts,

the district court is a court of limited jurisdiction. See, e.g., City

of Kenosha v. Bruno, 412 U.S. 507, 511 (1973). As such, it

possesses jurisdiction only over such matters as are committed

to it by statute. The Supreme Court has consistently held that

the FSIA’s enumerated exceptions provide the only path to

jurisdiction over foreign states in US courts. See Permanent

Mission of India to the United Nations v. City of New York, 548

U.S. __, 127 S. Ct. 2352, 2355 (2007) (citing 28 U.S.C. § 1604;

Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S.

428, 439 (1989)); see also Princz v. F.R.G., 26 F.3d 1166, 1169

(D.C. Cir. 1994). The “general exceptions to the jurisdictional

immunity of a foreign state” are set forth in 28 U.S.C. § 1605.

A. Application of the Foreign Sovereign Immunities Act

Instead of suing the foreign state of Israel, something

prohibited by the FSIA in the absence of allegation of any of the

statutory exceptions, Plaintiffs sued a retired Israeli general with

at most a tangential relationship to the events at issue who made

a convenient visit to the District of Columbia. But the FSIA is

not written so narrowly as to exclude all but foreign states in

name. It applies to foreign states, their political subdivisions,

and their agencies and instrumentalities. 28 U.S.C. §§ 1603–04.

Furthermore, “[a]n individual can qualify as an ‘agency or

instrumentality of a foreign state.’” El-Fadl, 75 F.3d at 671

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(citing 28 U.S.C. § 1603(b); Chuidian v. Philippine Nat’l Bank,

912 F.2d 1095, 1101–03 (9th Cir. 1990)). An individual

qualifies for this immunity when he acts in his official capacity

for the state. See Jungquist, 115 F.3d at 1027.

The district court correctly concluded that Plaintiffs have

only alleged acts done in General Ya’alon’s official capacity and

have in no instance alleged acts that were either personal or

private in nature. See id. at 1028 (finding that the district court

reasonably concluded that defendant’s actions were “personal

and private rather than official in nature” based in part on a

statement by the defendant’s superior that if he had done the

alleged acts he would take him “for a walk in the

desert”—meaning kill him). According to the complaint, at the

time of the shelling in Qana, General Ya’alon was Head of

Army Intelligence for the IDF and was acting “under the actual

or apparent authority and/or color of law of the State of Israel.”

Compl. ¶ 98. Appellants further alleged that he “had command

responsibility for the attack.” Id. ¶ 2. Nothing in the complaint

indicates that General Ya’alon took part in any events related to

the shelling of Qana that were outside his official authority and

role as the head of intelligence for the IDF.

In cases involving foreign sovereign immunity, it is also

appropriate to look to statements of the foreign state that either

authorize or ratify the acts at issue to determine whether the

defendant committed the alleged acts in an official capacity.

See, e.g., Jungquist, 115 F.3d at 1025 (noting affidavits

submitted to the district court to help determine whether the

defendant was entitled to foreign sovereign immunity); see also

Hilao v. Estate of Marcos, 25 F.3d 1467, 1472 (9th Cir. 1994)

(citing a letter from the Philippine government urging the court

to exercise jurisdiction over its former leader and holding that

“Marcos’ acts of torture, execution, and disappearance were

clearly acts outside of his authority as President”); Doe I v. Qi,

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349 F. Supp. 2d 1258, 1285-87 (N.D. Cal. 2004) (looking to

both public proclamations and documents produced by the

People’s Republic of China (“PRC”)). In fact, it is incumbent

upon the court to “engage in sufficient pretrial factual and legal

determinations to satisfy itself of its authority to hear the case”

when a party claims it is entitled to foreign sovereign immunity.

Jungquist, 115 F.3d at 1027–28 (internal quotations omitted).

Here, the Israeli ambassador to the United States transmitted a

letter stating that General Ya’alon’s alleged acts were done “in

the course of [his] official duties, and in furtherance of the

official policies of the State of Israel. To allow a suit against

[this] former official[] is to allow a suit against Israel itself.”

This is a case—anticipated by those who enacted the TVPA—in

which the state “admit[s] some knowledge or authorization of

relevant acts.” 138 Cong. Rec. S2667-04, S2668 (daily ed. Mar.

3, 1992) (statement of Sen. Specter on passage of the TVPA).

In light of the absence of any indication in the complaint that

General Ya’alon acted outside his scope of authority and the

Israeli ambassador’s statement that his actions were within the

authority given to him by the State of Israel, General Ya’alon

qualifies for the immunity provided by the FSIA.

Upon review of their complaint it appears that appellants

pleaded themselves out of court. The complaint identifies

nothing that General Ya’alon 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

General Ya’alon 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 General Ya’alon 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 appellee allegedly did himself. Indeed, the critical portions

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of the complaint alleging specific wrongful “acts” by Ya’alon

which allegedly caused the harm to the plaintiffs all consist of

claims that at a time when Ya’alon “knew or should have known

that Lebanese civilians sought shelter” in the United Nations

compound, he did nothing to prevent it. Since there is nothing

in an individual capacity that Ya’alon or any other individual not

acting as an agent of the Israeli government could have done to

stop the military actions of the IDF, 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.

B. Appellants’ Claimed Exceptions to the FSIA

Appellants offer several arguments in support of the

proposition that the district court erred in dismissing their action

even in the face of the FSIA’s apparent jurisdictional bar. We

reject each of these in turn.

1. The Termination of Service Argument

Appellants first argue that the FSIA does not apply to a

foreign official who has left office between the time of the

commission of the challenged acts and the bringing of the

litigation. We need not ultimately decide the merits of this

argument, as it is not properly before us. Appellants did not

raise this issue in the district court. Absent exceptional

circumstances, a party cannot raise legal issues on appeal that it

failed to raise in the district court. Nemariam v. Fed.

Democratic Republic of Eth., 491 F.3d 470, 483 (D.C. Cir.

9

2007). As the issue is not properly before us, this is not a proper

case for us to decide this question of statutory interpretation.

While we will not decide the issue, we feel compelled to

advise that our refusal to enter a holding on the question does

not mean that we consider this novel argument to be a

compelling one or the question to be difficult. Indeed, it is

likely that we would reject the proposition were it before us on

the merits. The argument relies on the undeniable proposition

that General Ya’alon’s status as “an agency or instrumentality

of a foreign state” is the basis for his immunity. See 28 U.S.C.

§ 1603(a)–(b); El-Fadl, 75 F.3d at 671. Appellants note that

section 1603(b), which defines an agency or instrumentality as

any entity “which is an organ of a foreign state or political

subdivision,” speaks in the present tense. 28 U.S.C. § 1603(b)

(emphasis added). Appellants claim that because section

1603(b) of the FSIA uses the word “is” and not “was,” it fails to

protect defendants who are no longer foreign officials at the time

of suit. Because General Ya’alon served as Head of Army

Intelligence from 1995 to 1998 and Plaintiffs did not bring suit

until 2005, under their construction of the statute he does not

qualify for foreign sovereign immunity. To support their

statutory interpretation argument, appellants cite Dole Food Co.

v. Patrickson, 538 U.S. 468 (2003), which they argue settled this

issue in their favor.

Appellants 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

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enactment.” Permanent Mission of India, 548 U.S. at __, 127 S.

Ct. at 2356. 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 § 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. See

Chuidian, 912 F.2d at 1099–1100. In light of the above “well-

recognized” purpose of the FSIA, it is unreasonable to assume

that in enacting the FSIA, Congress intended to make such

sweeping and counterintuitive changes to foreign sovereign

immunity with the simple use of the word “is.”

Dole Food does not appear to support the proposition

advanced by appellants. It resolved only two questions, neither

of which is relevant to this case—“whether a corporate

subsidiary can claim instrumentality status where the foreign

state does not own a majority of its shares but does own a

majority of the shares of a corporate parent one or more tiers

above the subsidiary” and “whether a corporation’s

instrumentality status is defined as of the time an alleged tort or

other actionable wrong occurred or, on the other hand, at the

time suit is filed.” Dole Food, 538 U.S. at 471. Although the

Court held that a corporation’s instrumentality status is defined

at the time of suit, id. at 478, relying in part on the statute’s use

of the present tense of “is owned,” 28 U.S.C. § 1603(b)(2), the

case never dealt with the acts of a government official. The

status of a corporation at one time owned by a foreign state and

an individual who was at one time an official of such a state are

hardly the same. The corporation and the state have at all times

been entities wholly separate and distinguishable from each

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other and able to act without the presence or even existence of

the other. This does not define the relationship between the state

and its officials. While it is true, indeed obvious, that the

official has an existence independent of the state, the state does

not act independently of its agents. Every act committed by a

sovereign government is carried out by its officials and agents.

While the state may own corporations that conduct some of

these acts, it need not do so. Regardless of whether it creates or

owns corporations, individual officials or agents must act as

instrumentalities for anything actually to be done. To suppose

that the sovereign’s immunity protecting the individual official

in the performance of his sovereign’s business vanishes the

moment he resigns, retires, or loses an election is to establish

that he had no immunity at all. Even though the state’s

immunity survives his departure, it is difficult to say how it

could act within its immunity without being able to extend that

immunity to the individual officials who acted on its behalf.

While Dole Food was not dealing with appellants’ novel

theory, the court did offer language in that case relevant to this

argument. The Dole Food Court opined that a purpose of

foreign sovereign immunity is “to give foreign states and their

instrumentalities some protection from the inconvenience of suit

as a gesture of comity between the United States and other

sovereigns.” 538 U.S. at 479. To allow the resignation of an

official involved in the adoption of policies underlying a

decision or in the implementation of such decision to repeal his

immunity would destroy, not enhance that comity. This is

especially true in a case like the present one where we would be

engaging in the micro-management of military targeting

decisions. All this is even assuming that appellants have alleged

a claim for relief when all they seem to be able to support is the

proposition that appellee was a high-ranking military official at

the time the actions were undertaken.

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2. The Jus Cogens Exception

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) (quoting Vienna Convention on the Law of Treaties

art. 53, May 23, 1969, 1155 U.N.T.S. 332); 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. See Enahoro v. Abubakar, 408 F.3d 877, 893

(7th Cir. 2005) (Cudahy, J., dissenting) (“[O]fficials receive no

immunity for acts that violate international jus cogens human

rights norms (which by definition are not legally authorized

acts.)”); Cabiri v. Assasie-Gyimah, 921 F. Supp. 1189, 1198

(S.D.N.Y. 1996) (noting that the defendant did not argue, “nor

could he,” that torture fell within the scope of his authority or

was permitted under his nation’s laws, because no government

asserts a right to torture) (citing Filartiga v. Pena-Irala, 630

F.2d 876, 884 (2d Cir. 1980)); Prosecutor v. Furundžija, Case

No. IT-95-17/1-T, Judgement, ¶ 156 (Dec. 10, 1998) (noting the

inconsistency of preventing courts from prosecuting torturers

when no state has the lawful authority to torture). 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

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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; see also Smith v. Socialist People’s Libyan Arab

Jamahiriya, 101 F.3d 239, 242 (2d Cir. 1996) (noting that,

although Congress had not done so for Libya’s role in the

bombing of Pan Am Flight 103, “Congress may choose to

remove the defense of sovereign immunity selectively for

particular violations of jus cogens, as it has recently done in the

1996 amendment of the FSIA”). 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

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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.

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Appellants also argue that General Ya’alon acted outside

the scope of his authority, and therefore outside the protection

of the FSIA, because he allegedly violated Israeli law. They

urge this Court to carve out an exception, quite similar to that

for jus cogens norms, for foreign officials who violate their

state’s laws. However, just as the FSIA carves out no exception

for complaints that allege violations of jus cogens norms, it does

not create an exception for alleged violations of a foreign state’s

laws.

3. The Torture Victim Protection Act

Appellants also argue that the FSIA should not bar suit

because the TVPA abrogates the FSIA to the extent the FSIA

applies to individuals. To support this argument, appellants

point to the plain language of the TVPA, which confers civil

liability for damages in a wrongful death action on “[a]n

individual who, under actual or apparent authority, or color of

law, of any foreign nation . . . subjects an individual to

extrajudicial killing . . . .” 28 U.S.C. § 1350 (note) sec. 2(a).

There must be some level of government action for an individual

to be liable in a TVPA case, so appellants argue the FSIA will

almost always apply to bar suit and effectively nullify the

TVPA. In order to resolve the apparent conflict between these

statutes, they argue that the TVPA exempts individuals from the

FSIA when they are sued in their personal capacities. They

claim that the TVPA requires this result because without this

exemption, the TVPA would fail to have its full effect.

Appellants’ argument fails for several reasons. First, the

FSIA does not prevent the application of the TVPA to foreign

officials. Even though the TVPA limits actions to individuals

acting “under actual or apparent authority, or color of law, of

any foreign nation,” 28 U.S.C. § 1350 (note) sec. 2(a), it still has

16

effect when the suit falls under one of the exceptions to the

FSIA, see 28 U.S.C. § 1605 (listing at least eight exceptions to

foreign sovereign immunity, e.g., waiver, commercial activity,

and state sponsors of terrorism).

Second, the cases appellants cite from our sister circuits do

not support the proposition that the TVPA creates an exception

to the FSIA. Instead, those that even discuss the FSIA at all

held that the defendant was acting outside the scope of his

authority and therefore not subject to the FSIA. For example, in

Hilao, the U.S. Court of Appeals for the Ninth Circuit held that

the FSIA did not bar suit against a former Philippine president

because he acted outside the scope of his authority, which was

“evidenced by the Philippine government’s agreement that the

suit against Marcos proceed.” 25 F.3d at 1472. Again, in

Trajano v. Marcos, 978 F.2d 493 (9th Cir. 1992), the FSIA did

not bar plaintiff’s wrongful death action against a former

Philippine official because the defendant’s default showed that

she “admitted acting on her own authority, not on the authority

of the Republic of the Philippines.” Id. at 498; see also Qi, 349

F. Supp. 2d at 1287 (“Where, as here, the PRC appears to have

covertly authorized but publicly disclaimed the alleged human

rights violations caused or permitted by Defendants Liu and Xia

and asserts that such violations are in fact prohibited by Chinese

law, Defendants cannot claim to have acted under [] a valid

grant of authority for purposes of the FSIA.”); Xuncax v.

Gramajo, 886 F. Supp. 162, 175–76 & n.10 (D. Mass. 1995)

(holding that the FSIA does not provide immunity to the

defendant because he acted outside his scope of authority and

noting that “[t]here is no suggestion that either the past or

present governments of Guatemala characterizes the actions

alleged here as ‘officially’ authorized”). These cases are fully

in line with this Court’s precedent that the FSIA does not apply

to foreign officials acting outside the scope of their authority.

The other cases cited by appellants do not discuss the FSIA at all

17

and are irrelevant to the issue at hand.

Further, there is no indication in either the language or the

legislative history of the TVPA that Congress intended to create

another exception to the FSIA; in fact, the language points to the

contrary result. When Congress enacted the FSIA, it stated

clearly that “[c]laims of foreign states to immunity should

henceforth be decided by courts of the United States and of the

States in conformity with the principles set forth in” the FSIA.

28 U.S.C. § 1602; see Amerada Hess, 488 U.S. at 437–38

(quoting this language and noting that Congress “very likely []

thought that should be sufficient” to show that the FSIA applies

to the ATCA). If Congress had intended to create an exception

to the FSIA, it could have done so, as evidenced by its 1996

amendment to the FSIA to exclude state sponsors of terrorism.

Antiterrorism and Effective Death Penalty Act of 1996, Pub. L.

No. 104-132, 110 Stat. 1214, § 221(a)(1) (codified at 28 U.S.C.

§ 1605(a)(7)). When Congress passed the TVPA in 1991, it did

not amend the FSIA and instead appended it to the ATCA, a

statute the Supreme Court held in Amerada Hess to be subject

to all provisions in the FSIA. 488 U.S. at 438.

Finally, the legislative history of the TVPA comports with

this Court’s interpretation. Both the House and Senate reports

on the passage of the TVPA state explicitly that the TVPA is not

meant to override the FSIA. See H.R. Rep. No. 102-367, at 5

(1991), reprinted in 1992 U.S.C.C.A.N. 84, 88 (“The TVPA is

subject to restrictions in the Foreign Sovereign Immunities Act

(FSIA) of 1976.”); S. Rep. No. 102-249, at 7 (1991) (“[T]he

TVPA is not meant to override the Foreign Sovereign

Immunities Act of 1976.”). In sum, the TVPA, like the ATCA,

is subject to all the provisions of the FSIA. Cf. Amerada Hess,

488 U.S. at 438.

18

4. The “No Relief Against the Sovereign” Argument

Appellants finally argue that the FSIA should not bar suit

because it does not apply when the complaint seeks no relief

against the sovereign. We will not dwell on the merits of this

dubious argument because appellants failed to raise it in the

court below. Absent exceptional circumstances, a party cannot

raise legal issues on appeal that it failed to raise in the district

court. Nemariam, 491 F.3d at 483.

C. Jurisdictional Discovery

Last, appellants claim that they were entitled to

jurisdictional discovery. They seek discovery on whether Israel

lawfully authorized the defendant to act. Such discovery would

seek to disprove Israel’s statement that the acts alleged were a

“military action[] undertaken by the State of Israel in defending

against terrorism” and a “sovereign action[] of the State of

Israel, approved by the government of Israel in defense of its

citizens against terrorist attacks.” Letter from Daniel Ayalon,

Ambassador to the United States, State of Israel, to Nicholas

Burns, Under Secretary for Political Affairs, State Department

(Feb. 6, 2006). Although the “Federal Rules of Civil Procedure

generally provide for liberal discovery to establish jurisdictional

facts . . . [,] the scope of discovery lies within the district court’s

discretion.” Goodman Holdings v. Rafidain Bank, 26 F.3d 1143,

1147 (D.C. Cir. 1994). It follows that the standard of review on

this question is abuse of that discretion. See Mwani v. bin

Laden, 417 F.3d 1, 17 (D.C. Cir. 2005). As this Court found in

El-Fadl, “in light of the evidence that [defendant] proffered to

the district court and the absence of any showing by [plaintiff]

that [defendant] was not acting in his official capacity, discovery

would frustrate the significance and benefit of entitlement to

immunity from suit.” El-Fadl, 75 F.3d at 671 (internal

quotations omitted); see also Mwani, 417 F.3d at 17 (quoting

19

Goodman Holdings, 26 F.3d at 1147) (affirming the district

court’s denial of jurisdictional discovery when the court did

“‘not see what facts additional discovery could produce that

would affect [its] jurisdictional analysis’”). The district court

was well within its discretion to deny jurisdictional discovery.

CONCLUSION

Because appellants offer no reason to upset the district

court’s judgment, we affirm the district court’s denial of

appellant’s motion for jurisdictional discovery and its dismissal

of this case for lack of subject matter jurisdiction under the

FSIA.

WILLIAMS, Senior Circuit Judge, concurring: I join my

colleagues in affirming the dismissal of plaintiffs’ claim,

holding that former Israeli General Moshe Ya’alon is entitled

to immunity under the Foreign Sovereign Immunities Act

(“FSIA”). In the events giving rise to this suit, he acted in his

official capacity as an “agency or instrumentality” of the State

of Israel within the meaning of 28 U.S.C. § 1603(b)(2). I

write separately only to indicate the different paths taken to

arrive at this destination.

1. Former Officials and Dole Food. Plaintiffs argue that

General Ya’alon is not entitled to foreign sovereign immunity

because his military service is over, and § 1603(b)(2)’s first

clause defines an “agency or instrumentality of a foreign

state” to include an entity that “is an organ of a foreign state

or political subdivision thereof” (emphasis added). Plaintiffs’

failure to raise the argument before the district court provides

ample ground for rejection, and I join the court on that point.

See Maj. Op. at 8-9. I also agree with the majority—though

for slightly different reasons—that if plaintiffs had properly

raised the issue, it is unlikely we would have been convinced.

In Dole Food Co. v. Patrickson, 538 U.S. 468 (2003), the

Supreme Court addressed § 1603(b)(2)’s second clause, which

includes as agencies or instrumentalities of a foreign state

those entities “a majority of whose shares or other ownership

interest is owned by a foreign state.” The Court held that a

corporation must be directly owned by the foreign state itself,

and owned at the time of suit, for the clause to apply. Id. at

477-78, 480; see also Maj. Op. at 10. An official’s status as

an agency or instrumentality of a foreign state turns on a

different clause of § 1603(b)(2): not the “is owned” language,

but a separate passage providing agency-or-instrumentality

status for an entity that “is an organ of a foreign state or

political subdivision thereof.” Id. Plaintiffs argue that if “is

owned” means owned at the time of suit, then an individual

2

must, to receive immunity under § 1603(b)(2), be an active

official at the time of suit.

I join the majority in rejecting this argument, see Maj.

Op. at 9-11, but I rest the conclusion not on the differences

between corporations and human officials but on the

differences between § 1603(b)(2)’s two clauses. Under the

majority-ownership prong, a corporation’s immunity from suit

depends solely on the foreign state’s direct ownership of a

majority of the corporation’s shares; no closer relationship

between the foreign state and the corporation is required.

Dole Food holds that when that relationship is extinguished

(even by the foreign state’s ownership dropping to fractionally

less than a majority of shares), so too is the corporation’s

claim to sovereign immunity. 538 U.S. at 478-80. The

agency relationship is quite different, however, when the

individual or other entity has served as an organ of the foreign

state; in such a case a finding of immunity will rest on the

foreign state’s exercise of some degree of control and

direction of the person’s or entity’s activities. Indeed, several

decisions (before and after Dole Food) have found that

corporations can qualify as “organs” of a foreign state under

the first clause of § 1603(b)(2) independent of whether they

meet Dole Food’s direct ownership requirement, see USX

Corp. v. Adriatic Ins. Co., 345 F.3d 190, 206-16 (3d Cir.

2003); EIE Guam Corp. v. Long Term Credit Bank of Japan,

Ltd., 322 F.3d 635, 639-42 (9th Cir. 2003); Kelly v. Syria

Shell Petroleum Dev. B.V., 213 F.3d 841, 846-49 (5th Cir.

2000), as did a recent separate opinion of Justice Breyer, see

Powerex Corp. v. Reliant Energy Servs., 127 S. Ct. 2411,

2424-26 (2007) (Breyer, J., dissenting).

This difference in the basic predicates of immunity under

the two clauses entails quite different consequences for a

change in the entity’s status over time. The only logically

necessary impact on a foreign state of our exercising

3

jurisdiction over a corporation it merely owned in the past is

at best attenuated: the foreign state may receive a lower sales

price for its majority stake if it cannot pass corporate

immunity for past deeds along with ownership. But an

individual’s or other entity’s lack of immunity for actions

undertaken on the state’s behalf would have a significant

impact on the foreign state and the United States’ relations

with that state, particularly where (as here) the foreign state

acknowledges its awareness and authorization of those acts.

See Letter from Daniel Ayalon, Ambassador to the United

States, State of Israel, to Nicholas Burns, Under Secretary for

Political Affairs, State Department (Feb. 6, 2006)

(“Ambassador’s Letter”). After all, foreign sovereign

immunity is intended to be “a gesture of comity between the

United States and other sovereigns.” Dole Food, 538 U.S. at

479.

Thus, while we need not decide the issue, it strikes me as

implausible that an official automatically ceases to qualify as

“an organ of the foreign state” for the purposes of foreign

sovereign immunity the minute he leaves his government post.

2. Alleged Violations of Jus Cogens and Israeli Law.

Plaintiffs also argue that General Ya’alon’s actions were

violations of Israeli law and of jus cogens norms (norms so

universally accepted that all states are deemed bound by them

under international law, see, e.g., Committee of U.S. Citizens

Living in Nicaragua v. Reagan, 859 F.2d 929, 939-42 (D.C.

Cir. 1988), 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

4

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. Jungquist v. Sheikh

Sultan Bin Khalifa Al Nahyan, 115 F.3d 1020, 1027 (D.C. Cir.

1997); El-Fadl v. Cent. Bank of Jordan, 75 F.3d 668, 671

(D.C. Cir. 1996); see also Maj. Op. at 5-6. 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.

5

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

6

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.

3. Torture Victim Protection Act. I agree entirely with

the majority that TVPA claims must comply with the FSIA

for courts to have jurisdiction over individuals who acted in

their official capacity as agencies or instrumentalities of a

foreign state. See Maj. Op. at 15-17. I part company with

the majority only in that I find the relevant legislative history

to be less helpful to our interpretive exercise, and in any event

I would invoke somewhat different passages.

First, the majority states that “[w]hen Congress passed

the TVPA in 1991, it did not amend the FSIA and instead

appended it to the ATCA, a statute the Supreme Court held in

Amerada Hess to be subject to all provisions in the FSIA.”

Maj. Op. at 17. Indeed Congress did not amend the FSIA, but

a further inference of congressional intent from the placement

of the statute within the United States Code is dubious, at least

absent some indication—lacking here (see TVPA, Pub. L.

102-256, 106 Stat. 73 (1992))—that Congress itself, rather

than simply the Office of Law Revision Counsel, 2 U.S.C.

7

§§ 285-285g, directed that placement. See Turner v.

Glickman, 207 F.3d 419, 428-29 (7th Cir. 2000); see generally

Tobias A. Dorsey, Some Reflections on Not Reading the

Statutes, 10 Green Bag 2d 283 (2007).

Second, while the House Report quoted by the majority

does indicate that “[t]he TVPA is subject to the restrictions in

the [FSIA],” in almost the next breath it states that “sovereign

immunity would not generally be an available defense [to a

TVPA claim].” H.R. Rep. No. 102-367, at 5 (1991). And the

text of the Senate Report excerpted by the majority states

more fully that “[t]he legislation uses the term ‘individual’ to

make crystal clear that foreign states or their entities cannot be

sued under this bill under any circumstances: only individuals

may be sued. Consequently, the TVPA is not meant to

override the Foreign Sovereign Immunities Act (FSIA) of

1976.” S. Rep. No. 102-249, at 7 (1991). These references

suggest that at the time they enacted the TVPA, many

members of Congress may not have realized the extent to

which the FSIA covered individuals; indeed, at least one of

our sister circuits has held that individuals cannot be agencies

or instrumentalities of a foreign state under § 1603(b)(2). See

Enahoro v. Abubakar, 408 F.3d 877, 881-82 (7th Cir. 2005).

While I find the overall message of the legislative history

to be mixed—and thus ultimately not that helpful—two

passages not cited by the majority would seem to buttress our

conclusion. The Senate Report quoted by the majority states

elsewhere that “the committee does not intend [FSIA,

diplomatic, and head-of-state] immunities to provide former

officials with a defense to a lawsuit brought under [the

TVPA]. To avoid liability by invoking the FSIA, a former

official would have to prove an agency relationship to a state,

which would require that the state admit some knowledge or

authorization of relevant acts.” S. Rep. No. 102-249, at 8

(1991) (internal quotation marks omitted). Similarly, Senator

8

Arlen Specter responded to a question by reiterating that “[i]n

order to take advantage of the FSIA, a [TVPA] defendant

would have to prove an agency relationship with the foreign

state, which would have to admit some knowledge or

authorization of the relevant acts.” 138 Cong. Rec. S2667-04,

S2668 (daily ed. Mar. 3, 1992) (internal quotation marks

omitted). Both of these passages are consistent with this

circuit’s holding that an individual acting in his official

capacity can claim immunity as an agency or instrumentality

of the foreign state, see Jungquist, 115 F.3d at 1027; El-Fadl,

75 F.3d at 671, and with our emphasis in this case on the

Israeli Ambassador’s unequivocal acknowledgement that

General Ya’alon acted “in the course of [his] official duties,

and in furtherance of official policies of the State of Israel.”

Ambassador’s Letter, at 2.