Prosecute, Sue, or Deport? Transnational Accountability in International Law
10 Pages Posted: 13 May 2015 Last revised: 15 Jan 2016
Date Written: May 1, 2015
The observation that states can only act through individuals begins, but does not end, discussions about the implications of state sovereignty for foreign official immunity. Bright-line immunity rules might be alluring, but they do not always best reflect the realities of inter-state relations or serve the needs of the international community. This Essay challenges the prevailing tendency among many courts and jurists dealing with questions of official immunity to treat civil and criminal consequences as categorically distinct, and to ignore immigration consequences altogether. It argues that we should instead view criminal, civil, and immigration consequences (detention, damages, and deportation) as manifestations of the same underlying principle: that individual officials may bear personal responsibility for their acts under international law, and that the domestic institutions of one state may in certain circumstances attach consequences to that responsibility without violating the sovereignty of foreign states. The integrated approach proposed here has at least three important implications. First, it supports the view that just because individual and state responsibility may be concurrent, does not mean that an individual’s and a state’s immunity must be congruent. Second, it suggests that we should treat states’ decisions (and foreign states’ reactions) regarding detention, damages, and deportation as relevant to determining the evolving parameters of conduct-based immunity under international law. Third, it highlights that, although we tend to think of state sovereignty in absolute terms, our understandings of sovereignty — as manifested in state practice — are actually varied and context-dependent. Our ultimate goal should be to tailor horizontal enforcement regimes that respect the core of state sovereignty while promoting individual accountability consistent with due process.
Keywords: official immunity, immigration, torture, horizontal enforcement, transnational jurisdiction, Pinochet, Torture Victim Protection Act
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