Common Law Immunity for Foreign Government Officers

by David Sloss

[David Sloss is the Professor of Law and Director of the Center for Global Law and Policy at Santa Clara Law School]

In Samantar v. Yousuf (2010), the Supreme Court directed lower courts to apply common law rules to resolve immunity defenses raised by individual foreign government officers, except in cases where a treaty provides the controlling rule. The Court remanded Samantar to the lower court to decide, in the first instance, the proper content of the common law rule. The Fourth Circuit heard oral argument on this issue last week.

The defendant in Samantar raised both a status-based immunity defense and a conduct-based immunity defense. This post focuses on conduct-based immunity defenses in cases, like Samantar, where plaintiffs raise claims under the Alien Tort Statute (ATS) and/or the Torture Victim Protection Act (TVPA). I propose a simple, straightforward rule that courts can apply to resolve conduct-based immunity defenses in such cases—use the same rule that courts apply when federal, state, and local government defendants raise qualified immunity defenses to domestic constitutional claims. Under that rule, which I call the Harlow rule, a defendant is entitled to immunity unless he or she violated “clearly established . . . rights of which a reasonable person would have known.” Harlow v. Fitzgerald (1982).

There are three reasons for courts to adopt the Harlow rule as the controlling rule for conduct-based immunity defenses in ATS/TVPA cases. First, U.S. courts are very familiar with the Harlow rule: they apply it routinely in 1983 cases and in Bivens cases. Hence, application of a similar rule in ATS and TVPA cases is likely to produce a consistent and coherent body of case law.

Second, the Harlow rule is substantially similar to the “Sosa test” that courts apply to determine whether a plaintiff has a federal common law cause of action under the ATS. See Sosa v. Alvarez-Machain (2004) (holding that plaintiffs can bring federal common law claims under the ATS only for violations of a sub-set of international law norms that have “definite content and acceptance among civilized nations”). In essence, Sosa instructed the lower courts not to recognize a federal common law cause of action for violations of international law unless the plaintiff alleges violation of a “clearly established” international norm. Thus, application of the Harlow rule in ATS cases would promote judicial efficiency because courts could apply essentially the same test to determine whether the plaintiff has a cause of action and whether the defendant has a valid immunity defense.

Third, application of the Harlow rule in ATS and TVPA cases would promote U.S. foreign policy interests. For the past few decades, a key goal of U.S. foreign policy has been to promote universal adherence to fundamental human rights norms. If U.S. courts grant immunity to individual defendants who violate clearly established human rights norms, the courts would undermine the longstanding U.S. policy of promoting universal adherence to those norms.

My proposal to apply the Harlow rule in ATS and TVPA cases is likely to provoke three principal objections. First, one might argue that the Constitution grants the executive branch authority to make immunity determinations in individual cases, and that courts are required to defer absolutely to the executive branch on these issues. This argument is not persuasive. As Professor Wuerth has shown, careful analysis of constitutional text and structure refutes the claim that the Constitution grants the President final authority to decide whether an individual defendant in a particular lawsuit is entitled to conduct-based immunity. See Ingrid Wuerth, Foreign Official Immunity Determinations in U.S. Courts: The Case Against the State Department, 51 Va. J. Int’l L. 915 (2011). Moreover, Professor Keitner’s analysis of judicial decisions from the late eighteenth century shows that the Founding generation believed that resolution of immunity defenses in individual cases was a judicial function, not an executive function. See Chimène I. Keitner, The Forgotten History of Foreign Official Immunity, 87 N.Y.U. L. Rev. xxx (forthcoming 2012) (available on SSRN).

Even if the Constitution does not require judicial deference to the executive branch, one could argue that a judicial policy of case-by-case deference to the State Department is desirable because it is likely to advance U.S. foreign policy interests. I respectfully disagree. For various reasons, the State Department has a deeply rooted institutional bias that privileges expedient, short-term goals over the nation’s long-term interest in promoting universal adherence to fundamental human rights norms. There are compelling separation-of-powers reasons why the courts should act as a check on this unfortunate, short-sighted bias of the State Department bureaucracy. The United States needs one branch of the federal government to adopt a long-term view, rather than a short-term view. The courts are well positioned to serve this function because they are insulated from short-term political pressures.

The final objection to the proposed Harlow rule is that it is inconsistent with customary international law. Some scholars claim that customary international law requires the United States to grant immunity to foreign government officials for all acts performed in an official capacity. See Curtis A. Bradley & Laurence R. Helfer, International Law and the U.S. Common Law of Foreign Official Immunity, 2010 Sup. Ct. Rev. 213. In my view, the customary international law rule is more indeterminate than some scholars have claimed. It is clear that customary international law requires states to recognize some form of conduct-based immunity for acts performed in an official capacity by foreign government officers. Moreover, customary international law may not preclude states from granting conduct-based immunity to government officers who violate clearly established human rights norms. However, the argument that customary international law requires states to grant conduct-based immunity—even when officers violate clearly established norms—is not persuasive. There is not sufficient evidence of state practice to support a claim that customary international law requires immunity in these circumstances. Hence, application of the Harlow rule in ATS and TVPA cases would not be inconsistent with the nation’s international legal obligations.

6 Responses

  1. Is Harlow too narrow and is it ratcheted up by the 9th Circuit beyond debate in the Padilla v/ Yoo case?  The US court familiarity with the standard is not something that gives me much comfort given the types of decisions in so many of the private cases against US government officials. 

    Put another way, why can’t the US courts continue to give a broader protection to the US government official against private actions, and a narrower one for foreign officials.  Given our willingness to set up a separate third class process and standards for foreigners such as in  the MCA (enemy combatant), why should we also not do the same in this setting, in this case privileging accountability for foreigners in a way we resist doing for our own government leaders.  Totally consistent with the way we act under our American exceptionalism.


  2. Response…
    To compliment Ben’s concerns, why not simply use the ultra vires rationale evident in international law as a guide — a la the Decision and Judgment of the I.M.T. at Nuremberg — that no state has authority to authorize a violation of international criminal law and that any attempt to delegate such an authority to one of its officials would be ultra vires, without legal validity.
    See also Suing Bush, et al., 42 Case W. Res. J. Int’l L. 359, 361-74 (2009), available at  Following some court-made-up ”common law” stretched to provide immunity could place the U.S. in violation of several treaties and customary international law that are undoubtedly supreme law of the land,  Instead of court-made-up doctrine that favors immunity, courts should apply arts. 2(3) and 50 of the ICCPR, arts. 1-2, 14, 16 of the CAT, and so forth. See also Gen. Comms. of the H.R. Comm., comms. of the CAT Comm., and so many other recognitions of the need to end impunity and to provide access to courts and to an effective remedy.
    Choice is upon us!  Do we favor the Bush-Cheney “dark side” or international law?  There are obvious consequences of judicial choice regarding this sort of issue and others. 

  3. I am also worried about Ashcroft v Al-Kidd and Kennedy’s concurrence which suggests that the clearly established standard ishould be even tighter (can a government official reasonably be aware of 50 different state laws for example – part of our effort to insulate our government officials even more).  Again, why bootstrap foreigners in the way we bootstrap our own?  It is the logic of how we act and I think it is suspect.  Maybe this would be a boomerang type effort where a high standard for foreigners is posited so we can use the same high standard for ourselves (a fortiori kind of argument).  I think all of this gets problematic real fast though I understand the intention behind it.

  4. Response…
    p.s. on the overall trends in decision with respect to NONIMMUNITY regarding violations of customary and treaty-based international law, see, e.g., 42 Case W. Res. J. at 367-74; The Prosecutor v. Milosevic (Nov. 8, 2001) (lack of head of state immunity for alleged international crimnal conduct is “a rule of customary international law”).

  5. Response…
    p.s.p.s.  “clearly” is potentially quite different (higher threshold) than a “reasonable person” would have been aware standard, so why adopt this additional limit in your newly by-analogized courts-please-make-this-one-up test?

  6. Response…
    and don’t forget the dicta by the U.S. Supreme Court in The Santissima Trinidad and the ruling there plus the decision by the S.Ct. years later in Berg about violations of international law and nonimmunity.  I particularly note the dictum about and if the Prince come to our shore and, knowing the rest of the opinion, had violated international law as did the nonimmune warship (then not immune for international violations), he would be subject to our jurisdiction.

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