Tuesday, February 2, 2010

Interpreting foreign officials' immunity

(IntLawGrrls is delighted to welcome a new guest post, from alumna Chimène Keitner, on an amicus brief she's just filed in an Alien Tort case before the U.S. Supreme Court)

A year ago January, as Beth Van Schaack then posted, the U.S. Court of Appeals for the Fourth Circuit dealt a “blow” to foreign sovereign immunity in Yousuf v. Samantar, which held that the Foreign Sovereign Immunities Act of 1976 does not apply to individuals. Samantar, who lives in Virginia and is the former Prime Minister and Minister of Defense of Somalia, faces claims for torture and extrajudicial killing brought under the Alien Tort Statute and the Torture Victim Protection Act. The U.S. Supreme Court granted Samantar’s petition for certiorari to review the Fourth Circuit’s decision interpreting the FSIA, as posted last fall by IntLawGrrls guest/alumna Pamela Merchant, Executive Director of the Center for Justice & Accountability. (The Huffington Post has published Pamela's thought-provoking summary of the case; moreover, information on the case and links to legal documents are available on the CJA’s website.) Briefing is currently in progress, and oral arguments are scheduled for March 3.
Strictly speaking, the questions before the Court at this juncture are, simply,
► Whether the FSIA provides immunity to individual foreign officials and,
► If it does, whether it also provides immunity to former foreign officials.
The Fourth Circuit found that the FSIA does not apply to individuals, and it remanded the question of whether other sources of immunity might nonetheless apply. The Solicitor General filed an amicus curiae brief urging the Supreme Court to affirm the Fourth Circuit’s interpretation of the FSIA. Numerous briefs that have been filed by other amici may be found here.
The Brief of Professors of Public International Law and Comparative Law as Amici Curiae in Support of Respondents -- for which I was counsel of record and whose signatories include IntLawGrrl guest/alumna Mary Ellen O'Connell -- systematically examines non-FSIA case law involving the immunities of foreign officials from civil suit. In the context of this case, the amicus brief refutes two unsupported assertions made by petitioner Samantar:
► First, Samantar asserts that “pre-1976 common law immunized a state’s officials for their official acts.” He relies heavily on this assertion for his conclusion that the FSIA should be read to include former foreign officials notwithstanding the omission in FSIA, 28 U.S.C. § 1603(a), of any reference to individuals in its definition of the term “foreign state.”
► Second, Samantar claims that “the overwhelming current international authority” provides immunity to former foreign officials sued in their personal capacity for acts of torture and extrajudicial killing. The authorities he cites, and significant authorities that he omits to cite, do not support these assertions. Non-FSIA sources of foreign official immunity do not provide a blanket shield from personal liability for universally recognized international law violations, even if such violations were committed by individuals who held government positions.

No comments: