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.
 2

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
 3

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
 4

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
 5

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
 6

(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,
 7

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
 8

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
 10

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
 11

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.
 12

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
 13

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
 14

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.
 15

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.