Samantar Insta-Symposium: Recognizing Personal Responsibility

[In our continuing discussion of Samantar, we are very pleased to share the thoughts of Professor Chimene Keitner, of U.C. Hastings College of Law.  More comments to come soon.]

As counsel for Professors of Public International Law and Comparative Law as amici curiae in support of Respondents, I obviously agree with the Court’s disposition. As Opinio Juris readers know courtesy of Julian, I recently published a brief essay in YJIL Online that argues against reading the FSIA to encompass individuals as a matter of logic, policy, and international law. In my view, it is entirely appropriate that the Court read the FSIA as it was written, and left it to the district court to address Samantar’s claim of common law immunity in the first instance.

In arguing for immunity, Samantar seemed to take for granted that, if the FSIA applied to individuals, he would enjoy immunity for torture and extrajudicial killing. He argued that, both under the common law and the FSIA, “individual immunity … was coextensive with the law of state immunity and always immunized a foreign official for acts taken on behalf of the foreign state” (slip op. at 14). As a historical matter, this is demonstrably false. The Court correctly observed that “the relationship between a state’s immunity and an official’s immunity is more complicated than petitioner suggests” (slip op. at 15).

I do not think it is a fair criticism of the Court’s decision to say that it will invite further litigation because, even if the FSIA applied to individuals, one would still have to decide when to treat an individual as the foreign state. The only decision that would have precluded further litigation would have been one that ignored the long-standing principle that individuals can be personally responsible, both civilly and criminally, for certain conduct that is also attributable to the state.

I agree that Samantar will not open the floodgates to unrestricted ATS and TVPA cases against current and former officials. Status-based immunities shield many current officials from suit in U.S. court. Suits will be dismissed if the state is an indispensable party under Republic of Philippines v. Pimentel, 553 U.S. 851 (2008), or if the state is the real party in interest under the line of cases I discuss in the amicus brief (Section II.B). It is not contrary to a textual analysis of the FSIA to acknowledge that certain cases nominally brought against individuals will be dismissed on common law immunity grounds, such as those involving claims for breach of contract or entitlement to state funds.

What struck me most as I was doing research for the amicus brief, and that has led me to continue researching historical practice in this area, is the relative lack of scholarly or judicial attention to the contours of conduct-based immunity, as opposed to status-based immunity (or “position-based individual immunities,” slip op. at 13 n.12). I see it as a strength, rather than a weakness, that the Court abstains from pronouncing prematurely on this question. For example, my research indicates that the Solicitor General overstates the case for absolute executive deference to determinations of conduct-based (as opposed to status-based) immunity in its amicus brief by neglecting U.S. practice before the 1940s. I also take issue with characterizations of early U.S. practice and customary international law that suggest immunity is required for all conduct that involves state action, regardless of the nature of that conduct, as discussed in the amicus brief.

Kentucky v. Graham, 473 U.S. 159 (1985), does not suggest otherwise. The quoted language refers to a suit brought against an official in his or her official capacity, which by definition imposes direct financial liability on the state itself. It is well established in U.S. law that individual officials may be sued in their personal capacity for certain conduct performed under color of law. As the Supreme Court emphasized in Hafer v. Melo, which followed Kentucky v. Graham, “[p]ersonal-capacity suits, on the other hand, seek to impose individual liability upon a government officer for actions taken under color of state law.” 502 U.S. 21, 25 (1991). The Court futher observed: “The requirement of action under color of state law means that Hafer may be liable for  discharging respondents precisely because of her authority as auditor general. We cannot accept the novel proposition that this same official authority insulates Hafer from suit.” Id. at 27-28. The Court’s citation to Kentucky v. Graham in Samantar suggests that it finds this domestic law reasoning relevant to determining when a foreign state is the real party in interest. Moreover, as I discuss in the amicus brief and the YJIL Online essay, other courts have also focused on the nature of the relief requested to differentiate between personal capacity and official capacity suits.

This does not mean that, as soon as an official leaves office, he or she will face the prospect of a trial in U.S. court for any controversial decision taken on behalf of the state. Multiple filters, including status-based immunities, the requirement of personal jurisdiction, the act of state doctrine, the political question doctrine, the exhaustion requirement in the Torture Victim Protection Act, the limited class of actionable violations under the Alien Tort Statute as interpreted by Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), and others limit the number of cases that will actually go forward. To the extent that some continue to object to the use of U.S. courts to impose personal responsibility on individuals who commit serious international law violations, any filters that allow even a few cases to proceed will inevitably seem insufficient. However, re-inventing the law of immunity to create a categorical barrier to such cases is not warranted. In addition to misreading prior case law, categorical immunity would undermine Congress’s provision of civil remedies (e.g., in the Torture Victim Protection Act) and criminal penalties (e.g., in the Torture Convention Implementation Act and the Genocide Accountability Act) against individuals who are responsible for certain core violations. Individuals may be entitled to claim immunity in certain circumstances, but such claims must go beyond simply asserting that they acted on behalf of the state.