Samantar Insta-Symposium: Samantar and Foreign Official Immunity

Samantar Insta-Symposium: Samantar and Foreign Official Immunity

[We are pleased to share comments on the U.S. Supreme Court’s decision yesterday in Samantar v. Yousuf from Professor Curtis Bradley, who has written a great deal on the issue considered by the Court yesterday.  We hope to share comments from other informed observers on the decision over the next couple of days ].

As I bask in the glow of not having a single Justice in Samantar accept the theory of the FSIA that Jack Goldsmith and I had proposed, the following thoughts occur to me:

1. The decision strikes me as a perfectly reasonable construction of the FSIA’s text. I’ve always liked and admired Justice Stevens, but I’ve also thought that he had a tendency sometimes to gravitate towards the eccentric. This decision, however, is very lawyerly and does a nice job of addressing most of the counter-arguments. It is easy to imagine that Stevens’ opinion might have persuaded some Justices who were leaning the other way, especially Justices committed to textualism.

2. Supporters of broad executive power should be pleased with the decision. The Court describes with approval the pre-FSIA practice whereby an executive suggestion of immunity would cause courts to “surrender their jurisdiction,” and it appears to view that executive authority as part of the “common law” regime that it says has been preserved for suits against foreign officials despite the enactment of the FSIA. The Court says, for example, that “[w]e have been given no reason to believe that Congress saw as a problem, or wanted to eliminate, the State Department’s role in determinations regarding individual official immunity.”

3. Those who would describe this decision as a big victory for international human rights litigation are getting ahead of themselves. For a long time, the Filartiga line of cases simply ignored the issue of individual official immunity. That had started to change with some recent lower court cases (e.g., cases brought against Israeli officials), and now the issue will be front and center. The Court in Samantar emphasizes the “narrowness” of its holding and makes clear that it is deciding only the issue of the FSIA’s applicability. It also says that it “does not doubt that in some circumstances the immunity of the foreign state extends to an individual for acts taken in his official capacity,” and it repeatedly suggests that the common law may offer immunity to individual officials. As noted above, the Court also seems to indicate that the executive branch can issue binding suggestions of immunity in suits against foreign officials. Finally, it says (somewhat surprisingly given its textual analysis of the FSIA), that “it may be the case that some actions against an official in his official capacity should be treated as actions against the foreign state itself, as the state is the real party in interest.”

4. The Court, like the executive branch in its amicus brief, says remarkably little about international law. Contrast that with the British House of Lords’ 2006 decision in Jones, where the court was faced with a similar statutory construction issue and focused extensively on the international law backdrop (and concluded that the Filartiga line of cases was in violation of the customary international law of immunity). Contrast it as well with Justice Stevens’ own opinion in Hamdan v. Rumsfeld, which relied heavily on international law in construing the Uniform Code of Military Justice.

5. Regardless of your views of the impact of the decision on executive power, human rights litigation, or international law, the decision is good for lawyers and law professors. With its undefined references to common law immunity, and its lack of clarification regarding the role of international law, the Court has invited years of litigation and law review articles. Amusingly, one of the reasons the Court cites for declining to construe the FSIA to cover foreign official immunity is that the courts that have adopted this construction “have had to develop, in the complete absence of any statutory text, rules governing when an official is entitled to immunity under the FSIA.” But now that is still going to happen, albeit this time with even less effort by courts to connect their decisions to the policy choices that Congress has made. For discussion of one of the many areas of likely debate in the coming years, see here.

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Tobias Thienel

Prof. Bradley, I agree, of course, that the House of Lords in Jones v. Saudi Arabia had a lot more to say about immunity at common law / in customary international law. In fact, I would consider Jones possibly the best recent case on that issue. The difference, however, is easily explained. English case-law has long recognized the immunity of foreign officials (all of them: see Propend Finance Pty Ltd v Sing (1997) 111 ILR 611 and Jones itself). This it has done, ever since the coming into force of the State Immunity Act 1978, by way of interpretation of that Act (unlike the Court in Samantar). On the facts of Jones, this meant that there was immunity under the statute. Whether the common law said the same thing was, of course, immaterial. The statute controlled. However, any grant of immunity is pro tanto an infringement (not a violation) of the right of access to a court under Article 6 (1) ECHR (as found to exist in Golder v. United Kingdom). The European Court of Human Rights has held this infringement to be justified if and to the extent that the grant of immunity was required by international law (see… Read more »

Tobias Thienel

I should add (to my earlier comment which as of this writing is awaiting moderation) that Chimène Keitner’s Brief makes much the same point at p. 30.

I might also add that, for what it’s worth, I may consider Jones one of the best recent immunity cases, but that doesn’t mean I agree with it. In particular, I’m rather less than sure that individual officials really are immune from civil suits for torture. This seems to fly in the face of the Nuremberg limitation of immunity (that is wrongly associated at least with the ratio of Pinochet, as Lord Hoffmann explained in Jones).