                      FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 AHMET DOĞAN, individually and on                    No. 16-56704
 behalf of his deceased son Furkan
 Doğan; HIKMET DOĞAN, individually                     D.C. No.
 and on behalf of her deceased son                  2:15-cv-08130-
 Furkan Doğan,                                        ODW-GJS
                  Plaintiffs-Appellants,

                      v.                               OPINION

 EHUD BARAK,
                     Defendant-Appellee.

         Appeal from the United States District Court
            For the Central District of California
         Otis D. Wright, II, District Judge, Presiding

             Argued and Submitted April 12, 2018
                    Pasadena, California

                       Filed August 2, 2019

    Before: Carlos T. Bea and Mary H. Murguia, Circuit
     Judges, and Stanley Allen Bastian, * District Judge.

                      Opinion by Judge Bea

     *
       The Honorable Stanley A. Bastian, United States District Judge for
the Eastern District of Washington, sitting by designation.
2                       DOĞAN V. BARAK

                          SUMMARY **


          Torture Victim Protection Act / Foreign
                    Official Immunity

    The panel affirmed the district court’s dismissal, on the
basis of foreign official immunity, of a wrongful death action
brought under the Torture Victim Protection Act.

    Plaintiffs’ son was killed by the Israeli Defense Forces
while aboard a vessel in the “Gaza Freedom Flotilla,” which
sailed from Turkey toward the Israeli naval blockade of the
Gaza Strip. Plaintiffs sued Ehud Barak, the Israeli Defense
Minister at the time of the incident.

    The panel held that Barak was entitled to foreign official
immunity. The panel declined to decide whether a State
Department suggestion of immunity was entitled to absolute
deference or substantial weight. The panel concluded that,
even if the suggestion of immunity were not accorded
absolute deference, Barak would still be entitled to common
law immunity because exercising jurisdiction over him in
this case would be to enforce a rule of law against the
sovereign state of Israel. The panel further held that the
TVPA did not abrogate common law foreign official
immunity. The panel declined a recognize an exception to
foreign official immunity for violations of jus cogens norms.




    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                    DOĞAN V. BARAK                       3

                       COUNSEL

Dan Stormer (argued) and Brian Olney, Hadsell Stormer &
Renick LLP, Pasadena, California; Haydee J. Dijkstal, Stoke
and White LLP, London, United Kingdom; for Plaintiffs-
Appellants.

Jean-Claude Andre (argued), Sidley Austin LLP, Los
Angeles, California; Howard J. Stanislawski and Daniel J.
Feith, Sidley Austin LLP, Washington, D.C.; Douglas A.
Axel and Christopher M. Egleson, Los Angeles, California;
for Defendant-Appellee.

Lewis Yelin (argued) and Sharon Swingle, Appellate Staff;
Richard C. Visek, Acting Legal Adviser; Civil Division,
Washington, D.C.; for Defendant-Appellee.

William J. Aceves, California Western School of Law, San
Diego, California, for Amici Curiae International Law
Scholars.

Marco B. Simons, Richard L. Herz, and Zamira M.
Djabarova, EarthRights International, Washington, D.C., for
Amicus Curiae EarthRights International.

Katherine M. Gallagher, Ruhan Nagra, and Maria C.
LaHood, Center for Constitutional Rights, New York, New
York, for Amici Curiae Rachel Corrie Foundation for Peace
and Justice and the Center for Constitutional Rights.
4                       DOĞAN V. BARAK

                            OPINION

BEA, Circuit Judge:

    We must decide whether the parents of a U.S. citizen
killed during a military operation conducted by a foreign
nation abroad may sue the foreign official responsible for the
operation in federal court on different theories of wrongful
death claims, under the Torture Victim Protection Act
(“TVPA”). 1 Specifically, we must determine whether such
a suit may be brought against a foreign official where the
official’s acts were performed in his official capacity, where
the sovereign government has ratified his conduct, and
where the U.S. Department of State has asked the judiciary
to grant him foreign official immunity. We hold that such a
suit may not be brought against him, and we affirm the
district court’s grant of immunity and its order dismissing
the complaint.

                                  I

                                 A

    The facts underlying this case occurred in the broader
context of the decades-long Israeli–Palestinian conflict. Part
and parcel of the conflict has been the ongoing struggle for
the eastern Mediterranean tract of land known as the Gaza
Strip (“Gaza”). In 1967, following an armed conflict known
as the Six-Day War, Israeli Defense Forces (“IDF”) took
control of Gaza. Eventually, Israel entered into several
peace accords with the Palestinian Authority, relinquishing


    1
      In the proceedings below, Appellants made arguments based on
the Alien Tort Claims Act and the Anti-Terrorism Act. On appeal, they
pursue only claims based on the TVPA.
                      DOĞAN V. BARAK                         5

control of Gaza but retaining full control over the territorial
waters adjoining it.

    Shortly after Israel’s withdrawal, Hamas—a group
designated by the United States Government as a terrorist
organization—came to power in Gaza. With the Palestinian
Authority no longer in control, Israeli–Palestinian relations
worsened. Israel began experiencing increased attacks by
militant groups in Gaza. As a result, Israel imposed a full
naval blockade of the Gaza Strip in 2009 to contain the flow
of weapons into the area.

    On May 31, 2010, a group of six vessels, calling
themselves the “Gaza Freedom Flotilla,” sailed from Turkey
toward the Israeli naval blockade. The group’s purported
objective was to “draw international public attention to the
situation in the Gaza Strip and the effect of the blockade, and
to deliver humanitarian assistance and supplies to Gaza.”
The son of the plaintiffs in this lawsuit, Furkan Doğan
(“Furkan”), was aboard one of the vessels in the flotilla: the
Mavi Marmara.

    When the flotilla was still about sixty miles from the
blockade, the Israeli navy transmitted several radio messages
to the vessels. The messages informed the flotilla that it was
entering a restricted area, that humanitarian assistance could
be supplied to Gaza by land, and that all legal measures
would be taken to prevent the vessels from breaching the
naval blockade. In response, the Mavi Marmara transmitted
a message indicating its intent to sail through the blockade
and its belief that Israel could not legally prevent it from
doing so. Consequently, IDF decided to board the vessels to
prevent them from breaching the blockade.

  From a helicopter, IDF soldiers fast-roped down onto the
Mavi Marmara. According to several reports of the incident,
6                    DOĞAN V. BARAK

the first IDF soldiers to board were met with armed
resistance. Occupants of the vessel reportedly attacked the
soldiers with makeshift weapons, including clubs, knives,
axes, and metal poles. Some reports suggest that certain
occupants possessed, and may have used, firearms. When a
second group of soldiers boarded the ship, they were
authorized to use deadly force against the passengers. Nine
passengers of the Mavi Marmara were killed during the
scuffle, one of whom was Furkan. According to the Doğans’
complaint, Furkan was filming the operation from the
vessel’s top-deck when he was shot and killed by the IDF.

    Defendant-Appellee, Ehud Barak (“Barak”), was the
Israeli Defense Minister at the time of the Mavi Marmara
incident. He allegedly planned the operation to intercept the
flotilla, directed the operation himself, and personally
authorized the IDF to board and take over the vessel.
Whether Barak also authorized the use of lethal force is
unclear from the record. At any rate, because Barak
commanded the forces that took Furkan’s life, the Doğans
allege that he is responsible.

    Relations between Turkey and Israel became tense in the
wake of the incident, but international responses varied.
Some nations issued statements condemning Israel’s actions.
The United States’ response was more equivocal. Whereas
both branches of Congress passed resolutions supporting
Israel’s actions, the President’s public statement simply
expressed “regret” for the loss of life. President Obama
eventually helped persuade Israeli Prime Minister Benjamin
Netanyahu to apologize to Turkish President Recep Tayyip
Erdoğan, and in June 2016, Secretary of State John Kerry
and Vice President Joe Biden reportedly helped broker the
deal which formally resolved the Turkey–Israel
disagreement. Israel agreed to pay $20 million to a
                          DOĞAN V. BARAK                                  7

compensation fund for Turkish families, and Turkey agreed
to end all criminal and civil claims against Israel and its
military personnel.

                                    B

    On October 15, 2015, the Doğans filed this lawsuit in
federal court. They asserted eight causes of action, each of
which falls under one of three federal statutes: (1) the Alien
Tort Claims Act, 28 U.S.C. § 1350 (“ATCA”); (2) the
Torture Victim Protection Act, 106 Stat. 73, note following
28 U.S.C. § 1350 (“TVPA”); and (3) the Anti-Terrorism
Act, 18 U.S.C. § 2333 (“ATA”). The complaint alleges that
Furkan’s killing constitutes “torture,” “terrorism,” and/or an
“extrajudicial killing” under the relevant federal statutes and
international law, and that Barak is personally responsible
because of his commanding authority.

    In December 2015, Israel asked the U.S. Department of
State to file a Suggestion of Immunity (“SOI”) on behalf of
Barak. On January 20, 2016, Barak moved to dismiss the
complaint under Federal Rule of Civil Procedure 12(b)(1)
based on common law foreign official immunity, the
political question doctrine, and the act of state doctrine. The
parties fully briefed the motion. After briefing was
complete, the United States filed with the district court a
Suggestion of Immunity, which concluded that Barak’s
actions were official government acts that “were authorized
by Israel.” 2 The parties filed supplemental briefing on the
    2
       The SOI is a document filed with the district court by the
Department of Justice, based on a determination made by the Department
of State. In it, the Government explains that “the State of Israel has asked
the Department of State to recognize the immunity of Barak,” citing to a
“Diplomatic Note” sent by the Israeli embassy to the State Department.
In the note, the Embassy of Israel “respectfully requests that the United
8                         DOĞAN V. BARAK

effect of the SOI. Thereafter, the district court granted
Barak’s motion to dismiss on the ground that Barak is
entitled to foreign official immunity, declining to reach
Barak’s arguments as to the political question and act of state
doctrines.

    The district court held that the foreign official immunity
doctrine bars this lawsuit for two reasons. First, the district
court stated that federal courts generally have deferred to
executive branch determinations of foreign official
immunity. See Samantar v. Yousuf, 560 U.S. 305, 311
(2010). Here, the district court found that the State
Department’s SOI warranted such deference. Second, even
without the executive branch determination, the district court
held that its own analysis would have led it to the same
conclusion.

    Moreover, the court held that no exception to foreign
official immunity applies here. First, the Doğans argued that
foreign officials are not immune from liability for violations



States Government submit to the court a suggestion of immunity on
behalf of Mr. Barak because all of the actions of Mr. Barak at issue in
the lawsuit were performed exclusively in his official capacity as Israel’s
Minister of Defense.” The Embassy characterizes the operation
conducted by Barak as “authorized military action taken by the State of
Israel.” Thus, “[a]fter careful consideration of this matter, including a
full review of the pleadings and other materials relied upon by Plaintiffs,
the Department of State . . . determined that Barak is immune from suit.”
Based on this determination, and presumably out of respect for Israel’s
sovereignty and a concern for international comity, the Justice
Department filed its SOI with the district court, representing that “[t]he
Executive Branch has determined that former Israeli Defense Minister
Ehud Barak is immune from this suit.”
                        DOĞAN V. BARAK                               9

of jus cogens norms. 3 Noting that the question whether such
an exception exists has not yet been decided by the Ninth
Circuit, the district court adopted the Second Circuit’s
position that there is no jus cogens exception to foreign
official immunity and rejected the argument on that basis.
See Matar v. Dichter, 563 F.3d 9, 15 (2d Cir. 2009). Second,
the Doğans argued that the TVPA abrogates common law
foreign official immunity by providing liability for “torture”
and for “extrajudicial killing[s]” perpetrated by “[a]n
individual . . . [acting] under actual or apparent authority, or
color of law, of any foreign nation.” The court rejected this
argument as well, holding that Congress did not intend for
the TVPA to abrogate foreign official immunity “where the
sovereign state officially acknowledges and embraces the
official’s acts,” as Israel has here. Finding that foreign
official immunity (and no exception) applies, the district
court granted Barak’s motion to dismiss.

                                  C

    We review de novo the grant of a motion to dismiss for
lack of subject matter jurisdiction under Federal Rule of
Civil Procedure 12(b)(1). Mills v. United States, 742 F.3d
400, 404 (9th Cir. 2014). Evidentiary rulings, such as the
district court’s decision to consider extrinsic evidence, are
reviewed for an abuse of discretion. Wagner v. Cty. of
Maricopa, 747 F.3d 1048, 1052 (9th Cir. 2013). This court



    3
      A jus cogens (Latin: law which compels) norm 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.” See Siderman de Blake v. Republic of Argentina, 965 F.2d
699, 714 (9th Cir. 1992) (adopting definition from the Vienna
Convention on the Law of Treaties).
10                       DOĞAN V. BARAK

reverses only if the exercise of discretion was “both
erroneous and prejudicial.” Id.

                                   II

    As both parties recognize, the doctrine of foreign
sovereign immunity—including foreign official immunity—
developed as a matter of common law. See Schooner
Exchange v. McFadden, 11 U.S. (7 Cranch) 116 (1812); see
also Samantar v. Yousuf, 560 U.S. 305, 311 (2010)
(reaffirming that foreign official immunity is governed by
common law). 4 The Supreme Court has noted that a two-
step procedure is used to resolve a foreign state’s claim of
common law immunity. Id. at 311–12. At the first step, “the
diplomatic representative of the sovereign could request a
‘suggestion of immunity’ from the State Department.” Id. at
311. Generally, “[i]f the request [i]s granted, the district
court surrender[s] its jurisdiction.” Id. at 311. However, “in
the absence of recognition of the immunity by the

     4
       In Samantar, a group of Somalis (“Plaintiffs”) brought an action
against the former Prime Minister of Somalia, Mohamed Samantar. 560
U.S. at 308. Plaintiffs alleged that Samantar had authorized their torture
and, in some cases, the extrajudicial killings of their family members
when he was in charge of the military regime that previously governed
Somalia. Id. Samantar argued that the Foreign Sovereign Immunities
Act of 1976 (“FSIA”) supplied him with immunity from suit. The
district court dismissed for lack of jurisdiction under Rule 12(b)(1),
holding that the FSIA applied to foreign officials the same as it does
foreign states and thus Samantar enjoyed FSIA immunity. The Fourth
Circuit reversed, holding that the term “state” in the FSIA does not
extend to state officials. Id. at 309–10. The Supreme Court granted
certiorari and affirmed, holding that “the FSIA does not govern whether
an individual foreign official enjoys immunity from suit.” Id. at 310 n.3.
However, the Court noted that whether Samantar enjoyed common law
foreign official immunity was a different question “to be addressed in
the first instance by the District Court on remand.” Id. at 326.
                      DOĞAN V. BARAK                         11

Department of State,” a court moves to the second step,
where it has “authority to decide for itself whether all the
requisites for such immunity exist[ ].” Id. The court grants
immunity at step two if it determines that “the ground of
immunity is one which it is the established policy of the
[State Department] to recognize.” Id. at 312 (quoting
Republic of Mexico v. Hoffman, 324 U.S. 30, 36 (1945)).

    In Samantar, the Supreme Court noted that “the same
two-step procedure was typically followed when a foreign
official asserted immunity.” Id. But Samantar stands
principally for the proposition that the Foreign Sovereign
Immunities Act of 1976 does not govern sovereign immunity
over individual foreign officials. Samantar, 560 U.S. at 308.
Emphasizing the narrowness of its holding, the Supreme
Court remanded for the district court to consider “in the first
instance,” “[w]hether petitioner may be entitled to immunity
under the common law . . . .” Id. at 325–26. On remand, the
Fourth Circuit held that the State Department’s immunity
determination “carrie[d] substantial weight” but was not
dispositive. Yousuf v. Samantar, 699 F.3d 763, 773 (4th Cir.
2012) (hereinafter “Yousuf”). In so holding, the court
distinguished between conduct-based immunity that arises
from a foreign official’s duties, and status-based immunity
that arises from a foreign official’s status as a head-of-state.
Id. at 772–73. Regarding the latter, the Fourth Circuit held
that a determination from the State Department is likely
controlling. But in Yousuf, the defendant was not a head-of-
state, and therefore the Fourth Circuit engaged in an
independent analysis (although giving “substantial weight”
to the State Department’s suggestion of non-immunity) to
determine that the defendant was not entitled to immunity.
Id. at 777–78.
12                    DOĞAN V. BARAK

    The Doğans urge us to adopt the Fourth Circuit’s
approach. But we need not decide the level of deference
owed to the State Department’s suggestion of immunity in
this case, because even if the suggestion of immunity is
afforded “substantial weight” (as opposed to absolute
deference), based on the record before us we conclude that
Barak would still be entitled to immunity. Common-law
foreign sovereign immunity extends to individual foreign
officials for “acts performed in [their] 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 § 66(f) (1965). According to the Complaint,
Barak was “instructed by the Prime Minister to conduct” the
operations. The Complaint further alleged that Barak’s
“power . . . to plan, order, and control the IDF operation and
troops as Minister of Defense is set out in Israel’s Basic
Law[.]” The Complaint’s claims for relief state—several
times—that Barak’s actions were done under “actual or
apparent authority, or color of law, of the Israeli Ministry of
Defense and the Government of the State of Israel.” And if
the State Department’s SOI is not entitled to absolute
deference, we would nonetheless give it considerable
weight. We conclude that exercising jurisdiction over Barak
in this case would be to enforce a rule of law against the
sovereign state of Israel, and that Barak would therefore be
entitled to common-law foreign sovereign immunity even
under the Doğans’ preferred standard (i.e., conducting an
independent judicial determination of entitlement to
immunity).

                               III

   Next, the Doğans argue that even if Barak is entitled to
common law immunity, Congress has abrogated common
                         DOĞAN V. BARAK                              13

law foreign official immunity via the TVPA. The TVPA
provides:

         An individual who, under actual or apparent
         authority, or color of law, of any foreign
         nation—

             (1) subjects an individual to torture shall,
                 in a civil action, be liable for damages
                 to that individual; or

             (2) subjects an individual to extrajudicial
                 killing shall, in a civil action, be liable
                 for damages to the individual’s legal
                 representative, or to any person who
                 may be a claimant in an action for
                 wrongful death.

28 U.S.C. § 1350, note § 2(a). The Doğans contend that the
TVPA’s plain language unambiguously imposes liability on
any foreign official who engages in extrajudicial killings.5
Thus, the question is whether Barak’s common law
immunity is abrogated by the text of the TVPA.

    The Supreme Court has held that courts should “proceed
on the assumption that common-law principles of . . .
immunity were incorporated into our judicial system and that
they should not be abrogated absent clear legislative intent
to do so.” Filarsky v. Delia, 566 U.S. 377, 389 (2012)
(alteration incorporated) (quoting Pulliam v. Allen, 466 U.S.
522, 529 (1984)). Thus, even where “the statute on its face

    5
       Because we hold that the TVPA does not abrogate common law
foreign official immunity, we do not reach the question whether the
killing in this case was “extrajudicial” within the meaning of the TVPA.
14                     DOĞAN V. BARAK

admits of no immunities,” the Court will read it “in harmony
with general principles of tort immunities and defenses
rather than in derogation of them.” Malley v. Briggs, 475
U.S. 335, 339 (1986) (quoting Imbler v. Pachtman, 424 U.S.
409, 418 (1976)). Here, although the TVPA purports to
impose liability on any “individual who, under actual or
apparent authority, or color of law, of any foreign nation”
engages in torture or an extrajudicial killing, the statute itself
does not expressly abrogate any common law immunities.

    Our statutory analysis is also guided by the examination
of “the language of related or similar statutes.” City & Cty.
of S.F. v. United States Dep’t of Transp., 796 F.3d 993, 998
(9th Cir. 2015). Here, the most helpful analogue in
determining whether the TVPA abrogates common law
immunities is 42 U.S.C. § 1983. The Doğans agree that
“Section 1983 jurisprudence is highly relevant to the Court’s
analysis of the TVPA.” Section 1983, much like the TVPA,
imposes liability on “[e]very person who, under color of any
statute, ordinance, regulation, custom, or usage, of any
State” deprives another of a constitutional right. Even with
this all-encompassing language (“[e]very person”), the
Supreme Court has held that, in passing § 1983, Congress
did not “abolish wholesale all common-law immunities.”
Pierson v. Ray, 386 U.S. 547, 554 (1967). Indeed, the Court
in Pierson held that, even though the word “person” includes
legislators and judges, for example, § 1983 did not abrogate
common law legislative or judicial immunity. Id. at 554–55.
It follows that, to the extent this court relies on § 1983
jurisprudence in analyzing the TVPA, the statute’s use of the
overinclusive term “individual” does not abrogate the
immunity given to foreign officials at common law simply
because foreign officials fit within the category “individual.”
                      DOĞAN V. BARAK                         15

    Given that (1) the TVPA is silent as to whether any
common law immunities are abrogated and (2) the term
“individual” does not imply abrogation of common law
immunities for all individuals, we “assum[e] that common-
law principles of . . . immunity were incorporated” into the
TVPA. Filarsky, 566 U.S. at 389.

     Other considerations counsel against construing the
TVPA to abrogate common law foreign official immunity.
As the district court observed, “[i]f immunity did not extend
to officials whose governments acknowledge that their acts
were officially authorized, it would open a Pandora’s box of
liability for foreign military officials.” Indeed, “any military
operation that results in injury or death could be
characterized at the pleading stage as torture or an extra-
judicial killing.” And the TVPA allows suits not only by
U.S. citizens but by “any person.” Because the whole point
of immunity is to enjoy “an immunity from suit rather than
a mere defense to liability,” the Doğans’ reading of the
TVPA would effectively extinguish the common law
doctrine of foreign official immunity. Compania Mexicana
de Aviacion, S.A. v. U.S. Dist. Court, 859 F.2d 1354, 1358
(9th Cir. 1988) (per curiam) (emphasis added). Under the
Doğans’ reading, the TVPA would allow foreign officials to
be haled into U.S. courts by “any person” with a family
member who had been killed abroad in the course of a
military operation conducted by a foreign power. The
Judiciary, as a result, would be faced with resolving any
number of sensitive foreign policy questions which might
arise in the context of such lawsuits. It simply cannot be that
Congress intended the TVPA to open the door to that sort of
litigation.

   Nor does Barak’s reading of the TVPA render the statute
a nullity, as the Doğans contend. The parties agree that
16                       DOĞAN V. BARAK

Congress expected foreign states would generally disavow
conduct that violates the TVPA because no state officially
condones such actions. Thus, in the great majority of cases,
an official sued under the TVPA would never receive
common-law immunity in the first place, thereby making
abrogation unnecessary. Barak points to two examples of
this, which adequately prove the point. First, in Hilao v.
Marcos, 25 F.3d 1467 (9th Cir. 1994), plaintiffs brought
claims against the estate of former Filipino dictator
Ferdinand Marcos, based on allegations of torture and
extrajudicial killings. The Filipino government expressly
denied that Marcos’s conduct had been performed in an
official capacity and urged that the lawsuits be allowed to
proceed. Id. at 1472. Likewise, in Filartiga v. Pena-Irala,
630 F.2d 876 (2d Cir. 1980), plaintiffs brought an action
against a former Paraguayan police official based on
allegations that he was responsible for the death of their son.
In discussing the act of state doctrine, the Second Circuit
noted that the defendant’s conduct had been “wholly
unratified by [the Paraguayan] government.” In cases like
Hilao and Filartiga, the TVPA would operate to impose
liability on foreign officials who engaged in torture or
extrajudicial killings. Thus, our holding today does not
render the TVPA a nullity. 6

    For the foregoing reasons, we hold that the TVPA does
not abrogate foreign official immunity.




     6
       These cases illustrate circumstances in which a sovereign disavows
the conduct of its official. However, both cases mentioned here were
filed prior to the TVPA’s enactment and thus were not brought under the
TVPA. They nevertheless demonstrate an important point: The TVPA
need not abrogate foreign official immunity to have effect.
                         DOĞAN V. BARAK                               17

                                   IV

    The Doğans next urge this court to hold that foreign
officials are not immune from suit for violations of jus
cogens norms. Under the circumstances of this case, we
decline to recognize this exception to foreign official
immunity.

    At least three circuits have considered whether to create
an exception to foreign official immunity for jus cogens
violations. 7 The Doğans urge this court to follow the
approach taken by the Fourth Circuit in Yousuf (post-remand
from the Supreme Court). 699 F.3d at 777. After the
Supreme Court denied Samantar immunity under the FSIA
and remanded for consideration of foreign official immunity
at common law, the Fourth Circuit held that “officials from
other countries are not entitled to foreign official immunity
for jus cogens violations, even if the acts were performed in
the defendant’s official capacity.” Id. at 777. The court
explained that jus cogens violations should be excepted from
the doctrine of foreign official immunity because they are,
“by definition, acts that are not officially authorized by the
Sovereign.” Id. at 776.


    7
        The Doğans argue that this court’s precedent requires us to
recognize an exception for jus cogens violations. But this is a misreading
of the court’s case law. The cases relied upon by the Doğans for this
proposition involve Ferdinand Marcos, a Filipino dictator whose actions
were repeatedly disavowed by his own government. See Marcos,
25 F.3d at 1472; In re Estate of Ferdinand E. Marcos Human Rights
Litigation, 978 F.2d 493 (9th Cir. 1992). In those cases, Marcos was not
entitled to immunity because the Philippines did not ratify his conduct,
and thus the court did not have occasion to consider whether to create an
exception to foreign official immunity for jus cogens violations. No
exception was necessary because Marcos never received immunity in the
first place.
18                    DOĞAN V. BARAK

    In examining this same question below, the district court
found the Second Circuit’s opinion in Matar v. Dichter more
persuasive. 563 F.3d 9 (2d Cir. 2009). In Matar, plaintiffs
sued the former head of the Israeli Security Agency for his
role in an Israel-sanctioned bombing which killed the leader
of a terrorist group, but which also incidentally killed the
plaintiffs’ family members. Id. at 10–11. The Israeli
official, Avraham Dichter, argued that he enjoyed foreign
official immunity. Because Matar was decided pre-
Samantar, the Second Circuit analyzed immunity
alternatively under both the FSIA and the common law. The
court reiterated that “there is no general jus cogens exception
to FSIA immunity.” Id. at 14. And, relying on the State
Department’s statement of interest in favor of immunity, the
court held that Dichter was entitled to common law foreign
official immunity. Id. at 15 (“The Executive Branch’s
determination that a foreign [head-of-state] should be
immune from suit even where the [head-of-state] is accused
of acts that violate jus cogens norms is established by a
suggestion of immunity.”) (quoting Ye v. Zemin, 383 F.3d
620, 627 (7th Cir. 2004)).

    The Doğans frame their argument as a request that this
court adopt the Fourth Circuit’s view. But they actually ask
this court to go one step further than the Fourth Circuit went
in Yousuf. In Yousuf, the State Department had filed a
“suggestion of non-immunity,” highlighting the facts that
(1) the defendant was “a former official of a state with no
currently recognized government to request immunity on his
behalf” and (2) he was a U.S. legal permanent resident,
enjoying “the protections of U.S. law,” and thus “should be
subject to the jurisdiction of the courts.” Yousuf, 699 F.3d
at 777. Although the court ultimately held that foreign
officials are not immune for jus cogens violations, it did not
have occasion to consider whether that should be the case
                     DOĞAN V. BARAK                        19

where the foreign sovereign has ratified the defendant’s
conduct and the State Department files a Suggestion of
Immunity on his behalf. Id. at 776 (“However, as a matter
of international and domestic law, jus cogens violations are,
by definition, acts that are not officially authorized by the
Sovereign.”) (citing Siderman, 965 F.2d at 718). Thus, the
court in Yousuf had no occasion to consider whether jus
cogens violations should be an exception to foreign official
immunity because, as in the Marcos cases, the defendant was
never given immunity in the first place. As far as we can
tell, no court has ever carved out an exception to foreign
official immunity under the circumstances presented here.
We also decline to do so.

                              V

     Finally, the Doğans argue that the district court abused
its discretion when it used extrinsic evidence in describing
the Mavi Marmara incident and some of the related foreign
policy considerations. The court mentioned extrinsic
evidence in describing the background facts of the case.
However, its decision was based on the facts alleged in the
complaint and declarations filed. That is: (1) the conduct
challenged was taken by Barak in his official capacity as
Israeli defense minister, (2) the state of Israel subsequently
ratified Barak’s conduct, and (3) the State Department filed
a Suggestion of Immunity asking that he be immune from
suit. These three facts are undisputed, and they form the
basis of the court’s legal analysis and decision. Any use of
extrinsic evidence was not prejudicial.

                             VI

   For the foregoing reasons, we AFFIRM the district court
judgment dismissing the Doğans’ suit on the ground that
Barak is entitled to common law foreign official immunity.
