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The U.S. Court of Appeals for the Fourth Circuit recently issued a decision that has the effect of both limiting political branch control over human rights suits against foreign officials while at the same time arguably increasing the need for such control. In doing so, the decision highlights increasing tensions and uncertainties in the law about the extent to which U.S. courts should be adjudicating alleged human rights abuses that occur in other countries. International law recognizes two types of immunity for individual officials who are sued or prosecuted in foreign courts: status immunity, and conduct immunity. Status immunity protects certain officials while they are in office. In the case of heads of state—a category that includes not only presidents and prime ministers but also certain other high-level officials such as foreign ministers—this status immunity is essentially absolute and thus applies even to unofficial acts. By contrast, conduct immunity is narrower in some respects and broader in others, in that it applies only to the official acts of foreign officials, but it can be invoked even after the officials have left office and it applies even to lower-level officials. Suits against foreign governments in the United States are regulated by the Foreign Sovereign Immunities Act (FSIA), which requires that courts grant immunity unless one of the statute’s specified exceptions is satisfied. In its 2010 decision in Samantar v. Yousuf, the Supreme Court held that the FSIA does not ordinarily apply to suits against individual foreign officials and that any immunity enjoyed by such officials stems instead from the common law. Since that decision, two central issues have emerged in the lower courts: First, how much deference should the courts give to the views of the Executive Branch about whether a particular individual official should receive common law immunity? Second, when courts make their own determination of immunity, should they allow conduct immunity for alleged breaches of human rights that qualify as jus cogens violations (such as torture, summary execution, genocide, war crimes, and the like)? On the first issue, the Executive Branch has perhaps not surprisingly argued that courts should give absolute deference to its views about whether to grant immunity in particular cases. A number of lower courts have accepted this proposition in cases involving suits against sitting heads of state, and at least one court has accepted it in a case involving a former head of state. In the remand decision in Samantar, however, the Fourth Circuit held that this absolute deference applies only to status immunity, not to conduct immunity, and thus is inapplicable in suits against former officials. In such suits, the court reasoned, “[t]hese immunity decisions turn upon principles of customary international law and foreign policy, areas in which the courts respect, but do not automatically follow, the views of the Executive Branch.” There is some tension between the Fourth Circuit’s conclusion and the observation by the Supreme Court in Samantar that it did not believe that Congress in the FSIA “saw as a problem, or wanted to eliminate, the State Department’s role in determinations regarding individual official immunity.” The distinction drawn by the Fourth Circuit nevertheless strikes me as reasonable. It has long been assumed that the Executive Branch has an implied power of recognizing foreign governments, based in part on its role in sending and receiving ambassadors. That recognition power arguably encompasses the ability to determine whether a particular foreign governmental official is entitled to status immunity—for example, whether the official is the head of state of a government recognized by the United States. Conduct immunity, however, is less directly tied to the Executive Branch’s recognition power, since it turns not on whether the official holds a particular position in a foreign government but rather on the nature of the conduct in question. Moreover, because conduct immunity is not absolute, it involves legal judgments that are normally considered matters for the courts. As a result, allowing the Executive Branch to determine for the judiciary on a case by case basis whether conduct immunity is available poses potential separation of powers concerns. Ingrid Wuerth makes additional arguments along these lines in an article published last year in the Virginia Journal of International Law. The second issue that has emerged since the Supreme Court’s decision in Samantar concerns the scope of conduct immunity, and in particular the extent to which it applies to alleged jus cogens violations. As with the question of deference, there is already conflicting authority on this issue. In Giraldo v. Drummond Co., for example, the federal district court in D.C. concluded that conduct immunity applied even when there are allegations of jus cogens violations. The court reasoned that a jus cogens exception to immunity would “place a strain upon our courts and our diplomatic relations” and “would also eviscerate any protection that foreign official immunity affords.” The court also noted that, in applying the FSIA, courts have consistently declined to imply a jus cogens exception to immunity. By contrast, in its remand decision in Samantar, the Fourth Circuit held that there is no conduct immunity for alleged jus cogens violations. The court cited an article that Larry Helfer and I wrote in support of the proposition that “[t]here has been an increasing trend in international law to abrogate foreign official immunity for individuals who commit acts, otherwise attributable to the State, that violate jus cogens norms.” It is worth pointing out, however, that Professor Helfer and I noted that this trend primarily existed in the criminal area and that “in civil suits for damages . . . there has been less recognition of such an exception [for jus cogens violations].” Moreover, after studying the relevant European cases, Ingrid Wuerth has concluded (in an article that is about to appear in the American Journal of International Law) that even in the criminal area there is relatively little direct support in state practice for a jus cogens exception to immunity. To be sure, as Bill Dodge has noted, one could argue that jus cogens violations can never constitute official conduct, in which case there would be no need for a jus cogens “exception” to conduct immunity. The Supreme Court’s decision in Samantar is unclear about how the line is to be drawn between official and unofficial acts, although commentators have naturally read the tea leaves of the decision in various ways. It must be the case that official acts can encompass at least some acts that are alleged to be illegal, because otherwise the immunity would be meaningless. But whether there are certain types of illegality that by their nature render conduct unofficial for these purposes is an open question. Furthermore, it is not even clear whether this issue should be determined by reference to domestic law, international law, or some combination of both. In any event, shifting from an analysis of whether there is a jus cogens exception to immunity to whether jus cogens violations are categorically ineligible for such immunity may have semantic appeal but does little to resolve the underlying question. Regardless of the theory for denying immunity, Samantar is a relatively easy case, in that it involves a former official from Somalia, a government that is not currently even recognized by the United States. If conduct immunity does not apply as a general matter to alleged jus cogens violations, however, it will mean that former officials from close allies of the United States, such as Israel, can potentially be sued for such violations. It is almost certain, however, that such an outcome would be contrary to the wishes of the political branches of the U.S. government. The Fourth Circuit’s reasoning could also create problematic reciprocity implications for U.S. officials sued or prosecuted in foreign courts, as former State Department Legal Adviser John Bellinger has pointed out. These concerns in turn reveal that the Fourth Circuit’s two holdings may be working at cross purposes: by holding that the Executive Branch’s suggestions of conduct immunity are not binding on the courts and also that conduct immunity does not apply to alleged jus cogens violations, the Fourth Circuit has reduced political branch control over immunity while at the same time arguably increasing the need for such control. The Fourth Circuit would have been on somewhat stronger ground, in my view, if it had limited itself to the proposition that claims under the Torture Victim Protection Act (TVPA), which covers acts of torture and “extrajudicial killing,” are not subject to conduct immunity. The TVPA does not mention immunity, but its causes of action require that the defendant have acted “under actual or apparent authority, or color of law, of any foreign nation.” By expressly imposing liability for such governmental conduct, the TVPA could plausibly be read as disallowing conduct immunity for such conduct, as Helfer and I noted in our article. (It is much less likely that the TVPA was intended to override status immunity, and some courts have specifically held that it does not do so.) Both of these issues—the extent to which courts should defer to the Executive Branch, and the availability of conduct immunity for alleged jus cogens violations—are likely to merit Supreme Court review at some point. The case law is still developing, however, so it is quite possible that the Court will allow the issues to percolate further until sharper conflicts of authority develop. I discuss these and related immunity issues in a chapter of my forthcoming book, International Law in the U.S. Legal System.
Curtis Bradley is the Allen M. Singer Professor at the University of Chicago Law School. His courses include Foreign Relations Law and Federal Courts. He joined the Chicago faculty in 2021, after having taught for many years at Duke Law School. He has served as Counselor on International Law in the Legal Adviser’s Office of the U.S. State Department and as a Reporter for the Restatement of Foreign Relations.
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