Four American-Jewish organizations have filed a "friend of the court" brief with the United States Supreme Court, asking it to rule that officials of foreign governments cannot be sued in the U.S. for their official acts.
The brief, filed on Dec. 7, urged the Court to reverse a Fourth Circuit decision and “establish as the law of the land” that foreign government officials sued in the U.S. based on their official acts are immune from liability. The case’s outcome could affect Israel and its officials who carry out Israeli policies.
Just last week, former Israeli Foreign Minister Tzipi Livni, now a Knesset Member, refrained from traveling to Britain becaus a warrant for her arrest had been sought for her responsibility for Israel's counter-terrorism military operation known as Cast Lead.
The brief was authored by Washington, D.C. attorney Nathan Lewin, and was filed on behalf of the Zionist Organization of America (ZOA), the Union of Orthodox Jewish Congregations of America (OU), Agudath Israel of America and the American Association of Jewish Lawyers and Jurists.
The case decided by the Court of Appeals for the Fourth Circuit involved a former Somali government official who was sued in the U.S. for acts committed while he was in office. When the Somali official claimed that he was immune from suit under the federal Foreign Sovereign Immunities Act (FSIA), the Fourth Circuit rejected his claim, concluding that the FSIA grants absolute immunity only to foreign governments, but not to the officials who acted on their behalf.
This conclusion conflicts with the finding of most of the courts that have examined the issue; the majority has ruled that individuals are covered under the FSIA.
The brief described how the Fourth Circuit’s decision, if upheld by the Supreme Court, would encourage a torrent of unfounded lawsuits in the U.S. against present and former Israeli officials, a strategy that has been used by Israel’s enemies in foreign countries. The tactic, popularly called “Lawfare,” is designed to force Israeli officials to “shade” their decisions for fear that they might later be sued for actions they take while exercising governmental authority. The brief emphasized that government officials must be able to exercise independent judgment, unaffected by the prospect that their decisions will provoke retaliatory lawsuits that they will have to defend.
Blocking Flow of Information
The brief also noted that if the Fourth Circuit’s decision were upheld, it would affect the flow of information into the U.S. The threat of being subjected to unfounded litigation would deter officials from visiting and sharing ideas with various organizations, educational and research facilities, and present and former foreign government leaders, including Israeli officials.
Morton A. Klein, National President of the ZOA, explained that the decision could affect Israel's very existence: “Palestinian ‘lawfare’ is being used in England and other European countries, particularly after Israel’s defensive operation in Gaza. Such suits falsely claim that Israeli officials have committed war crimes against Palestinians, when in fact these officials were fulfilling their moral, legal and honorable duty to defend the Israeli people against murderous terrorist groups. If the Supreme Court does not decide that foreign government officials have immunity for their official acts, then Israeli officials will understandably be reluctant to carry out their obligation to defend the people of Israel, which will ultimately harm Israel’s right and duty to defend itself.”