The Common Law of Foreign Official Immunity
Green Bag 2D, Vol. 14, Autumn 2010
15 Pages Posted: 9 Aug 2010 Last revised: 13 Nov 2012
Date Written: December 10, 2010
In Samantar v. Yousuf, the U.S. Supreme Court unanimously rejected the argument that the Foreign Sovereign Immunities Act (FSIA) should be read to encompass all suits brought against individual foreign officials for acts performed in an official capacity. Instead, an individual defendant’s immunity “is properly governed by the common law.” Individual immunities fall into two categories: status-based immunities, which enable certain incumbent foreign officials to perform their duties unencumbered by legal proceedings; and conduct-based immunities, which shield individuals from legal consequences for some - but not all - acts performed during their tenure in office. International law, and many countries’ domestic laws, impose individual responsibility on officials who commit acts such as war crimes, genocide, and crimes against humanity, even when they commit these acts under color of law. Conduct-based immunity will not automatically shield individual defendants from the legal consequences of these acts, whether in the form of criminal penalties or civil damages. Although dismissing all human rights claims on immunity grounds might be an efficient way to clear the docket of these cases, neither historical practice nor common law doctrine justifies that result.
Keywords: foreign officials, sovereign immunity, Samantar v. Yousuf, common law, executive deference
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