The Center for Justice and Accountability, the San Francisco-based nongovernmental organization for which I work as a staff attorney, and our pro bono co-counsel at Akin Gump Strauss Hauer & Feld, have litigated the first case to consider the “common law immunity” of foreign officials since 2010. That is the year that the U.S. Supreme Court decided, in this same case, Samantar, that the Foreign Sovereign Immunities Act does not immunize individual officials. (IntLawGrrls' prior posts on this case available here.)
The latest victory occurred last week, when the U.S. Court of Appeals for the 4th Circuit ruled against the defendant in this Alien Tort litigation, former General Mohamed Ali Samantar of Somalia (in green on map).
The appellate court’s decision marks a crucial step forward in the fight against impunity.
In brief, the court found that even if the defendant were a head of state – which he wasn't – head-of-state immunity applies only to current heads of state – which he isn't. As for “official acts” immunity, such immunity cannot attach to jus cogens violations.
We proved such violations earlier this year.
In a hearing on February 23, before U.S. District Court Judge Leonie Brinkema of the Eastern District of Virginia, General Samantar conceded liability for torture, extrajudicial killing, war crimes and other human rights abuses committed under his command in Somalia, during the brutal 1969-1991 dictatorship of Siad Barre.
On August 28, Judge Brinkema awarded plaintiffs, Somali survivors of the regime's crimes, $21 million in compensatory and punitive damages.
The 4th Circuit judgment was issued on Friday by a 3-member panel comprising Chief Judge William Byrd Traxler, Jr., and Judges Robert Bruce King and Allyson Kay Duncan. It marks the first time that anyone has been held to account anywhere in the world for atrocities committed by General Samantar and the Barre dictatorship.
In the 23-page opinion written by Chief Judge Traxler, the panel held unanimously held that executive branch views are binding as to head-of-state immunity. But it rejected absolute deference to the executive branch in determining immunity for “official acts,” instead finding that courts owe the executive “substantial deference.” Conducting its own analysis, the court held that foreign officials are not entitled to conduct-based immunity for the most egregious human rights abuses, writing at pages 21-22:
'Under international and domestic law, 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.'In other words, a conduct-based immunity for “official acts” does not extend to torture, extrajudicial killing, or any other universally recognized human rights violation, for the reason that such crimes “are not legitimate official acts.”
The decision raises three interesting issues:
(1) What degree of deference is owed to executive suggestions of head of state vs. “official acts” immunity?
The 4th Circuit held that because status-based immunity turns on the executive branch’s constitutional power to recognize foreign governments, the executive's suggestions of head-of-state immunity are binding. Conduct-based immunity, in contrast, does not implicate the recognition power in the same manner. It turns instead on mixed questions of law and fact, which are the province of the courts. Thus, the executive’s views on “official acts” immunity receive substantial deference, but are not dispositive.
For more on the separation-of-powers aspect of immunity, compare these 2011 articles:
► Foreign Official Immunity Determinations in U.S. Courts: The Case Against the State Department, in which Vanderbilt Law Professor Ingrid Wuerth, an IntLawGrrls contributor, argued against absolute deference to suggestions of “official acts” immunity; and
► Foreign Official Immunity After Samantar: A United States Government Perspective, in which Harold Hongju Koh, Legal Adviser, U.S. Department of State, argued that deference is due “with respect to the status of foreign officials and with respect to the character of the acts.”
(2) When is an official’s act not an “official act”?
University of California-Hastings Law Professor Bill Dodge, writing at Opinio Juris this weekend, suggested that the court reached the right result by the wrong path. In Dodge’s view, the 4th Circuit carved out an exception to immunity for jus cogens violations, rather than asking whether the immunity attaches in the first place. Dodge noted the recent International Court of Justice decision in Germany v. Italy, in which the ICJ held that
'once immunity has been established, no exception for jus cogens violations exists.'Perhaps the distinction turns on whether a jus cogens violation triggers an exception as a matter of law, or merely a presumption that that violation was ultra vires, as discussed here. Or perhaps the analysis should focus less on the “official” nature of the act, and more on the relief sought by the plaintiff. These questions are explored by:
► Another Hastings Law Professor, IntLawGrrls contributor Chimène Keitner, in her 2010 article, The Common Law of Foreign Official Immunity; and
► Rutgers-Camden Law Professor Beth Stephens in her 2011 article, The Modern Common Law of Foreign Official Immunity.
(3) What is the source of law for “official acts” immunity – customary international law, federal common law, or some hybrid?
Professor Dodge’s analysis raises other questions:
► To what extent should federal courts look to customary international law to fashion “common law immunity”?
► And to what extent should courts draw instead on federal common law, including the Chuidian line of cases construing the Foreign Sovereign Immunities Act, and the “color of law” jurisprudence under 42 U.S.C. § 1983 and the Eleventh Amendment to the U.S. Constitution?
These issues are explored by Professors Keitner and Stephens, and also by Duke Law Professors Curtis Bradley and Laurence Helfer in their 2010 article, International Law and the U.S. Common Law of Foreign Official Immunity.
However these questions are finally resolved, CJA couldn’t be more pleased with this result for our clients. And we hope that this decision will smooth the path to justice for other survivors who pursue their persecutors in U.S. courts.