Making Sense of the Fourth Circuit’s Decision in Samantar

by William S. Dodge

[William S. Dodge is Professor of Law and Associate Dean for Research at the University of California, Hastings College of the Law. From August 2011 to July 2012, he served as Counselor on International Law to the Legal Adviser at the U.S. Department of State, where he worked on the amicus brief of the United States to the Fourth Circuit in Yousuf v. Samantar. The views expressed here are his own and do not necessarily reflect the views of the State Department or of the United States.]

On November 2, the U.S. Court of Appeals for the Fourth Circuit issued its opinion on remand in Yousuf v. Samantar. The opinion contains two key holdings: (1) that while State Department determinations of status-based immunity (e.g. head-of-state immunity) are entitled to absolute deference, State Department determinations of conduct-based immunity for official acts are entitled only to substantial weight; and (2) that foreign officials are not entitled to conduct-based immunity for violations of jus cogens norms.

Samantar served as Defense Minister and then as Prime Minister of Somalia before fleeing that country in 1991 and coming to the United States in 1997. Plaintiffs brought suit under the Alien Tort Statute (ATS) and Torture Victim Protection Act (TVPA) alleging that they and members of their families had been subjected to torture, arbitrary detention, and extrajudicial killing by government agents under Samantar’s command. In 2010, the Supreme Court held in Samantar v. Yousuf that the Foreign Sovereign Immunities Act (FSIA) did not apply to the immunities of foreign officials, which continue to be governed by federal common law. On remand, the State Department determined that Samantar did not enjoy immunity, emphasizing the lack of a current recognized government in Somalia that could assert or waive Samantar’s immunity and the fact that Samantar is a resident of the United States. The district court followed the State Department’s determination, and Samantar appealed to the Fourth Circuit.

The United States filed an amicus brief in the Fourth Circuit arguing that the State Department’s determination with respect to Samantar’s immunity was binding on the courts, but the Court of Appeals held that this depended on the kind of immunity determined. Broadly speaking, there are two sorts of foreign official immunities. Status-based immunities—like head-of-state immunity—depend on an official’s status as the current holder of an office and extend to all of his actions, whenever performed. Such immunities last only as long as the official continues in office. Conduct-based immunity, on the other hand, extends only to acts taken in an official capacity, but such immunity continues after the official leaves office. Current officials who do not qualify for status-based immunities, as well as all former officials, are entitled only to conduct-based immunity for their official acts.

Citing the President’s constitutional authority to “receive Ambassadors and other public Ministers,” the Fourth Circuit concluded “that the State Department’s pronouncement as to head-of-state immunity is entitled to absolute deference.” Slip Op. 14. This conclusion is consistent with other recent decisions in head-of-state cases treating the State Department’s determinations as conclusive. See, e.g., Habyarimana v. Kagame (10th Cir. Oct. 10, 2012). The State Department had never recognized Samantar as Somalia’s head of state (although even if it had, his status-based immunity would have ended when he left office). But the Fourth Circuit is the first court of appeals to consider the degree of deference owed to determinations of conduct-based immunity following the Supreme Court’s decision in Samantar. The Fourth Circuit found “no equivalent constitutional basis” for the State Department’s determination of official-act immunity, which “is not controlling, but . . . carries substantial weight.” Slip Op. 14, 15.

Turning to the substance of conduct-based immunity, the Court of Appeals held that “officials from other countries are not entitled to foreign official immunity for jus cogens violations.” Slip Op. 22. As the court noted, this is consistent with a long line of pre-Samantar cases, which applied the FSIA to foreign officials but concluded that gross human rights violations were not official acts entitled to immunity. Slip Op. 17-18. See, e.g., Hilao v. Estate of Marcos, 25 F.3d 1467, 1472 (9th Cir. 1994) (concluding that “Marcos’ acts of torture, execution, and disappearance were clearly acts outside of his authority as President”). The Supreme Court in Samantar referred to the same line of cases and observed that the distinction between official acts and those beyond the scope of authority “may be correct as a matter of common-law principles.” 130 S. Ct. 2278, 2291 n.17 (2010). Thus, the Fourth Circuit was certainly right to conclude that the pre-Samantar cases discussing official capacity in the context of the FSIA “are instructive for post-Samantar questions of common law immunity.” Slip. Op. 17.

Unfortunately, this section of the Fourth Circuit’s opinion contains two analytical errors. While these errors offset each other, allowing the court to reach the correct conclusion, they weaken the opinion’s persuasive force. The Court of Appeals first erred by assuming that whether acts are official turns on whether those acts are attributable to the State. Slip Op. 17. As Article 58 of the ILC Draft Articles on State Responsibility makes clear, the attributability of an act to the State for purposes of state responsibility is “without prejudice to any question of the individual responsibility of any person acting on behalf of a State.” Indeed, both the U.S. government and the Supreme Court in Samantar expressly rejected the syllogism “that a suit against an official must always be equivalent to a suit against the state because acts taken by a state official on behalf of a state are acts of the state.” 130 S. Ct. at 2290. See also Brief of the United States as Amicus Curiae, Samantar v. Yousuf, at 12 (noting that while “the acts of the official representatives of the state are those of the state itself, when exercised within the scope of their delegated powers,” it is “incorrect to extrapolate from that principle the conclusion that a suit against a foreign official is invariably equivalent to a suit against the foreign state itself”) (internal quotation marks and citations omitted).

The Court of Appeals’ second error was to confuse the question whether jus cogens violations can be considered to have been taken in an official capacity at all, so that conduct-based immunity attaches in the first place, with the question whether there is a jus cogens exception to immunity. Slip Op. at 19-22. There is a long line of authority holding that once immunity has been established, no exception for jus cogens violations exists. See, e.g.,Jurisdictional Immunities of the State (Germ. v. Italy), 2012 I.C.J. __, ¶ 97 (Feb. 3); Case Concerning the Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), 2002 I.C.J. 3, ¶ 58 (Feb. 14). But none of these cases addresses the threshold question for conduct-based immunity of whether an act was taken in an official capacity in the first instance, for unlike other immunities, conduct-based immunity attaches only to official acts. As Judge Williams noted in Belhas v. Ya’alon, the threshold question whether a defendant “acted in his official capacity” so that immunity attaches in the first place is “quite distinct” from the existence of a jus cogens exception. 515 F.3d 1279, 1292 (D.C. Cir. 2008) (Williams, J., concurring). On this threshold question of official capacity there is an equally long line of authority—much of it cited by the Fourth Circuit—that jus cogens violations cannot be considered official acts for the purposes of conduct-based immunity. See, e.g., Regina v. Bartle ex parte Pinochet, 38 I.L.M. 581, 594 (H.L. 1999) (Lord Browne-Wilkinson) (“How can it be for international law purposes an official function to do something which international law itself prohibits and criminalizes?”). Congress took the same view in enacting the TVPA, finding that “because no state officially condones torture or extrajudicial killings, few such acts, if any, would fall under the rubric of ‘official actions’ taken in the course of an official’s duties.” S. Rep. No. 102-249, at 8 (1991). Thus, the Court of Appeals was right to conclude that, “as a matter of international and domestic law, jus cogens violations are, by definition, acts that are not officially authorized by the Sovereign.” Slip Op. 19.

One suspects that the Fourth Circuit’s first error of viewing official capacity as turning on attributability to the State forced it into its second error of viewing jus cogens through the lens of an exception. The unfortunate results are apparent in passages such as this: “under international and domestic law, officials from other countries are not entitled to foreign official immunity for jus cogens violations, even if the acts were performed in the defendant’s official capacity.” Slip Op. 21-22. The better view—and the one consistent with both international law and U.S. practice—is that jus cogens violations are not performed in the defendant’s official capacity and are therefore not entitled to conduct-based immunity, even if the acts are attributable to the State for purposes of state responsibility.

In any event, as I have said, the court’s two analytical errors offset each other, and the court reached the correct conclusion. The Fourth Circuit’s holding that jus cogens violations are not official acts entitled to conduct-based immunity is consistent with existing U.S. case law, with Congress’s understanding in enacting the TVPA, and with customary international law. As more conduct-based immunity cases come before the courts, the Fourth Circuit’s decision in Samantar should be remembered not for its technical errors but for its important holding.

http://opiniojuris.org/2012/11/03/making-sense-of-the-fourth-circuits-decision-in-samantar/

3 Responses

  1. You criticize the Court of Appeals for “assuming that whether acts are official turns on whether those acts are attributable to the State”. Although the rules of state responsibility are without prejudice to rules of individual responsibility, it is justifiable to draw a connection between state immunity and the conduct-based immunity that covers individuals when acting in an official capacity. This is due to the fact that the justification for providing foreign officials with conduct-based immunity in the first place is to prevent courts in another jurisdiction from, in the guise of proccedings against a foreign official, pronouncing on the legality of acts that are attributable to a foreign state. This is why the official’s conduct-based immunity is not a personal right that he can invoke, but is rather a right of the foreign state to invoke or to waive. In invoking its official’s conduct-based immunity, the foreign state is, in essence, invoking its state immunity to prevent behaviour attributable to it from being examined in a foreign court. Thus, although as a general matter the rules of state responsibility are without prejudice to the rules of individual responsibility, there is a close connection between state immunity and conduct-based official immunity that justifies determining whether an act was official by reference to whether it is attributable to the state (and thus would be subject to state immunity in a direct action against the state).

  2. The approach of the Fourth Circuit in Yousuf v. Samantar may well sit uneasily with some U.S. authority on the meaning of ‘official act’, but it seems to me to be perfectly in line with international law.

    As I guess is well known, the Ninth Circuit in Chuidian v. Philippine National Bank, 912 F.2d 1095 (1990) held that the immunity of a foreign state official derived from a purposive reading of the FSIA. This analysis no longer stands. However, the court also held that this immunity applied only in respect of ‘official acts’, and that acts committed ultra vires were not ‘official acts’ in the statutory sense. This was based, if I may say so, on a rather uncritical adoption of domestic standards of agency.

    Samantar clearly differs from Chuidian not only in the common law basis of its holding, but also in the basic standard adopted regarding the ‘official act’. A mere ultra vires character does not suffice to deny the ‘official act’. Rather, once attribution to the state is established, only a jus cogens violation will do.

    Whatever may be the merits of the departure from the Chuidian test – which, at least on its face, was a statutory test and therefore no longer in point -, I think the court in Samantar was right as a matter of international law.

    This question was explored in some depth in the House of Lords judgment in Jones v. Ministry of the Interior of the Kingdom of Saudi-Arabia [2006] UKHL 26, [2007] 1 AC 270, then still by reference to Chuidian and some other cases to similar effect. The House, through Lord Hoffmann, declined to follow Chuidian and described its holding as ‘contrary to customary international law’ (para. 99). Lord Hoffmann expressly held that the notion of an ‘official act’ for the purposes of immunity ratione materiae depended on attribution to the state (paras. 74 et seq.). He denied that there was any broader merits-based test as to whether something was or was not properly part of the functions of a given official.

    Case law from the German Federal Constitutional Court is to the same effect. The case was not about immunity ratione materiae under customary international law as such, but about its application to former diplomats under Article 39(2)(2) of the Vienna Convention on Diplomatic Relations, but I don’t think there is any material difference. The court held:

    ‘According to Article 39(2), second sentence, of the VCDR, diplomatic immunity for official acts continues to exist after the termination of the diplomat’s position. What is to be understood as an official act follows from the purpose of this rule (see, on the interpretation of international treaties, Article 31(1) of the Vienna Convention on the Law of Treaties of 23 May 1969): The official acts of diplomats are attributable to the sending State. Judicial proceedings against diplomats come, in their effects, close to proceedings against the sending State. Continuing diplomatic immunity for official acts thus serves to protect the sending State itself (see, in particular, Denza, Diplomatic Law, 1976, p. 249; Zoernsch v. Waldock, English Court of Appeal […]).’

    The case is reported in German at BVerfGE 96, 68 et seq., the quote is at p. 80. The quote in English is from volume 115 of the International Law Reports, at pp. 605-6.

    I would further argue that this relevance of attribution makes perfect sense, for all the reasons given by Lord Hoffmann and the German court. Indeed, if the test was not attributability, I would fail to see why the immunity should be a right of the State and of the State only – which I assume is the position at common law as well.

    Finally, let me just say I agree with the result in Samantar, but perhaps not with the test applied. Based on what I have said (and cited), it is true that the denial of immunity for an act attributable to a foreign state must be based on an exception in law. But this does not have to turn on the particular rank of jus cogens. Indeed, it is usually assumed that international crimes do not attract immunity regardless of their rank in international law. (Also, Pinochet (No. 3) was based on an implied waiver in the UN Convention against Torture, 1984). Because there is no question of a conflict of norms in which jus cogens trumps immunity (see Jurisdictional Immunities of the State, ICJ), the qualification as jus cogens should not ultimately be decisive.

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  1. […] the last year, and in that position working on the State Department’s amicus brief in the case) gives a very interesting discussion and critique of the holding.  Here is a bit: On November 2, the U.S. Court of Appeals for the Fourth Circuit issued its […]