Abusing the authority of the state: denying foreign official immunity for egregious human rights abuses.

• Author: Stephens, Beth

ABSTRACT

Government officials accused of human rights abuses often claim that they are protected by state immunity because only the state can be held responsible for acts committed by its officials. This claim to immunity is founded on two interrelated errors. First, the post-World War H human rights transformation of international law has rendered obsolete the view that a state can protect its own officials from accountability for human rights violations. Second, officials can be held individually responsible for their own actions even when international law also holds the states liable for those acts. This Article begins with an analysis of U.S. foreign official immunity norms after the Supreme Court decision in Samantar v. Yousuf, 130 S. Ct. 2278 (2010). Based on a review of the historical roots of state and official immunity and the impact of modern human rights law on the principles underlying foreign official immunity, the Article then argues that both logic and policy support denying immunity to officials even if the state itself is granted immunity.

TABLE OF CONTENTS I. INTRODUCTION II. CUSTOMARY INTERNATIONAL LAW AND THE POST-SAMANTAR COMMON LAW OF OFFICIAL IMMUNITY III. INTERNATIONAL LAW AND FOREIGN OFFICIAL IMMUNITY: THE HISTORICAL BACKGROUND IV. FOREIGN SOVEREIGN IMMUNITY AND THE HUMAN RIGHTS TRANSFORMATION OF INTERNATIONAL LAW V. HUMAN RIGHTS VIOLATIONS, STATE RESPONSIBILITY, AND FOREIGN OFFICIAL ACCOUNTABILITY VI. CONCLUSION I. INTRODUCTION

In a pattern repeated multiple times throughout 2011, tens of thousands of citizens gathered peacefully to protest the repressive actions of unelected governments. Senior government leaders ordered state officials to detain and torture the protesters or to shoot into unarmed crowds. The domestic legal systems, controlled by the regimes in each of these countries, provided no means by which those injured could seek redress or those responsible could be held accountable. The few international tribunals offered little or no relief because of their limited mandates and limited resources.

After being stymied elsewhere, victims and survivors of these massive abuses are likely to seek justice in other countries. But if the domestic courts of a foreign state seek to hold accountable government officials responsible for human rights abuses, those officials will inevitably claim immunity from criminal prosecution or civil lawsuits. They will argue that they are protected by the state's own immunity because only the state can be held responsible for acts committed by its officials, even if those actions violate international law.

This claim to immunity is founded on two interrelated errors, one based in history and one in logic. First, the human rights transformation of international law that began in the aftermath of World War II has also transformed immunity law. International human rights norms have rendered obsolete the view that a state can protect its own officials from accountability for international human rights violations. Second, immunity absolutists err when they insist that, because the state is responsible under international law for acts committed in the exercise of governmental authority, logic dictates that the officials who commit such acts must be protected by the state's immunity.

In the United States, the international law principles underlying official immunity have new relevance in the wake of the 2010 Supreme Court decision in Samantar v. Yousuf. (1) As explained in Part II, Samantar held that the immunity of foreign officials is governed by the common law, not by the Foreign Sovereign Immunities Act (FSIA). (2) The post-Samantar common law will likely look, in part, to international law. To provide context for an understanding of the international doctrines governing official immunity, Part III reviews the historical roots of both state and official immunity, explaining how each has evolved to reflect significant changes in international law and foreign relations. Part IV explores the transformative impact of modern human rights law on the principles underlying foreign official immunity. In the era of international human rights norms that override conflicting domestic laws, foreign officials who commit egregious abuses cannot shelter behind the immunity of the state. (3)

Finally, as explained in Part V, both logic and policy support holding both states and their officials responsible for international human rights violations and denying immunity to officials even if the state itself is granted immunity. The policies underlying the various categories of immunity differ, and offering immunity to one actor does not require immunizing others. States themselves are governed by immunity rules that rest on comity and the requirements of diplomacy. Similar policies underlie the personal immunities granted to certain high-ranking officials, including heads of state and diplomats, while they are in office. (4) The functional immunities of state officials serve more limited purposes that are outweighed by the policies reflected in international human rights norms.

The category of human rights violations that should not receive immunity might be defined by different terms, including international crimes, jus cogens violations, violations that trigger extraterritorial jurisdiction, and egregious or core human rights violations. These different terms are not interchangeable, and some commentators emphasize and rely on the distinctions. (5) I intentionally use the broadest terms, egregious or core human rights violations, to make a broader point. International human rights norms fundamentally altered the relationship between international law and domestic human rights violations. Government officials have no claim to immunity in foreign or international courts for acts in violation of those norms.

2. CUSTOMARY INTERNATIONAL LAW AND THE POST-SAMANTAR COMMON LAW OF OFFICIAL IMMUNITY

   Prior to the enactment of the FSIA in 1976, only a handful of reported U.S. cases considered whether foreign officials who were not protected by personal immunity were nevertheless immune from suits arising out of acts taken in the exercise of governmental authority. (6) Where the lawsuits would have required some action by the foreign government--payment of funds or other injunctive relief--the courts generally recognized immunity. For example, in Heaney v. Government of Spain, (7) the court granted immunity to a foreign official because the case sought to enforce a contract against the foreign state. (8)

   In other cases, however, the courts generally denied immunity, reasoning that, in suits against officials as individuals, the fact that the defendants exercised governmental authority did not render them immune from the jurisdiction of the U.S. courts. (9) These decisions were generally consistent with the approach adopted by the 1965 Restatement (Second) of Foreign Relations Law, which stated that immunity extended to a foreign official "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." (10)

   The FSIA codified the immunity of foreign states but made no mention of foreign official immunity. A majority of the circuit courts interpreted the FSIA as covering officials, but, consistent with the U.S. approach to domestic official immunity, held that immunity applied only to acts within an official's lawful authority. (11) As a result, the courts denied immunity in cases alleging egregious human rights abuses. (12)

   Despite the majority support in the circuits, application of the FSIA to individual government officials was a stretch: the statute made no mention of officials; the Executive Branch consistently maintained that it did not address officials; and the legislative history gave no indication that Congress had considered official immunity. (13) In 2010, in Samantar v. Yousuf, the Supreme Court ruled unanimously that the FSIA did not apply to foreign officials. (14) The Court made clear, however, that foreign officials might nevertheless be entitled to nonstatutory immunity, stating that "in some circumstances the immunity of the foreign state extends to an individual for acts taken in his official capacity." (15)

   The Samantar opinion offered little guidance as to the substance of the common law immunity that attaches to some officials "in some circumstances." (16) Courts and commentators seeking to develop rules governing common law immunity are likely to look at international law for guidance. (17) The following two parts offer an overview of that law, beginning in Part III with a brief history that explains the lack of international consensus about the reach of foreign official immunity. Part IV then addresses the dramatic impact of human rights law on the principles underlying foreign official immunity.

3. INTERNATIONAL LAW AND FOREIGN OFFICIAL IMMUNITY: THE HISTORICAL BACKGROUND

   International law governing immunity has reached consensus on the application of immunity to only a small set of international actors. No widely ratified international agreements establish the framework for foreign immunity. A broad treaty, finalized in 2004, has only twelve state parties and has yet to come into force. (18) Narrow treaties afford personal immunity to diplomats, consular officials, and members of certain special missions, (19) while customary international law recognizes the personal immunity of sitting heads of state and foreign ministers. (20) The lack of international agreement as to other immunities leaves states to determine their immunity doctrine through domestic law. But few states have statutes governing foreign immunity, and those statutes rarely mention the immunities of officials. (21) States often look to international law for guidance, but just as often arrive at different understandings of its substance.

   The lack of consensus on key issues of foreign state...