Samantar Asks for Supreme Court Review Again

[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 Monday, Mohamed Ali Samantar filed a cert petition asking the Supreme Court to review the Fourth Circuit’s decision that he is not entitled to conduct-based immunity in a suit brought under the Alien Tort Statute and Torture Victim Protection Act alleging torture, arbitrary detention, and extrajudicial killing. 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, the District Court followed the State Department’s determination, and the Court of Appeals affirmed. The Fourth Circuit held: (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. I have previously explained why I believe that decision to be fundamentally correct.

Samantar’s cert petition argues that the Fourth Circuit’s decision conflicts with the decisions of the Second Circuit in Matar v. Dichter, the D.C. Circuit in Belhas v. Ya’alon, and the Seventh Circuit in Ye v. Zemin, each of which refused to recognize a jus cogens exception to the immunity at issue. In Matar, the Second Circuit deferred to the State Department’s determination that the defendant was entitled to conduct-based immunity and refused to override that determination by finding a jus cogens exception. But in Samantar, the State Department has determined that the defendant is not entitled to conduct-based immunity, so the question whether to recognize a jus cogens exception was never presented. Belhas was decided on the assumption—now corrected by the Supreme Court’s 2010 Samantar decision—that the Foreign Sovereign Immunities Act (FSIA) governed the immunity of foreign officials and held that there is no jus cogens exception to the FSIA, a conclusion that prior decisions had reached in suits against states. Ye held that there was no jus cogens exception to head-of-state immunity, an immunity that attaches because of an official’s status as a sitting head of state. In each of these cases, the question was whether to recognize an exception to an immunity that had—for one reason or another—already attached.

The question in Samantar, by contrast, is not whether to recognize a jus cogens exception to an immunity that has already attached, but the antecedent question whether jus cogens violations can be taken in an official capacity so that conduct-based immunity attaches in the first place. As Judge Stephen Williams noted in his concurring opinion in Belhas, the question whether an immunity attaches is “quite distinct” from the question whether to recognize exceptions to an existing immunity. The Fourth Circuit’s decision in Samantar is the first Court of Appeals decision to say whether jus cogens violations can constitute official acts for purposes of conduct-based immunity.

My friend Curt Bradley has suggested that distinguishing these two questions is just semantics. To see why it is not, it may be useful to step back and consider how immunity generally works. All immunity questions proceed in three basic steps: (1) who is covered, (2) what is covered, and (3) is there an exception. I will use state immunity, status-based immunity, and conduct-based immunity as illustrations, but one could ask the same questions with respect to diplomatic and consular immunities.

(1) Who?—i.e. who is covered by the particular immunity at issue?

• State immunity. Under international law, state immunity covers the state and its agencies. Under the FSIA, the United States extends this immunity to certain state-owned corporations. By statute some other countries extend this immunity to certain foreign officials—but in Samantar the Supreme Court held that the FSIA does not do so.
• Status-based immunity. Under international law, status-based immunity covers the current-holder of particular offices, generally limited to the so-called troika of head of state, head of government, and minister of foreign affairs.
• Conduct-based immunity. Under international law, conduct-based immunity covers officials not entitled to status-based immunity and to all former officials.

(2) What?—i.e. what acts are covered by the particular immunity at issue?

• State immunity. Under international law, state immunity covers public acts (acta jure imperii) but not private acts (acta jure gestionis).
• Status-based immunity. Under international law, status-based immunity applies to all acts, including acts performed before an official assumed office and those taken while in office but not in an official capacity.
• Conduct-based immunity. Under international law, conduct-based immunity applies only to those acts taken in an official capacity.

(3) Exception?—i.e. is there an exception to the immunity that has attached, such that the exercise of jurisdiction is nonetheless permissible? The “exception” question is only reached if the answers to the “who” and “what” questions lead to the conclusion that the defendant would be immune in the absence of an exception.

• State immunity. Under international law, there is an exception to state immunity where the state has waived its immunity. It is not clear if international law recognizes other exceptions, though the FSIA certainly does (e.g. the expropriation exception, which clearly involves a public act).
• Status-based immunity. Under international law, there is an exception to status-based immunity where the state has waived that immunity.
• Conduct-based immunity. Under international law, again there is an exception to conduct-based immunity where the state has waived that immunity. It is not clear whether there are other exceptions, in particular a jus cogens exception. Domestic and international courts have generally not had to reach the “exception” question for jus cogens violations because under the “what” question, conduct-based immunity does not attach to jus cogens violations in the first place.

This analytic framework shows that the questions of what acts are covered and whether exceptions exist are distinct questions that arise across different kinds of immunity. It also shows that there is no conflict between the Fourth Circuit’s decision and the foreign and international decisions cited in Samantar’s cert petition (pp. 25-29). The ICJ’s Jurisdictional Immunities decision and the European Court of Human Rights decision in Al-Adsani v. United Kingdom both involved state immunity, which extends to all public acts. Jones v. Saudi Arabia (UK), Zhang v. Zemin (Australia), and Bouzari v. Iran (Canada) each involved a legislative act extending state immunity to foreign officials (something the FSIA does not do). The question in each of these cases was therefore whether to recognize a jus cogens exception to an existing immunity, not the logically prior question addressed by the Fourth Circuit of whether conduct-based immunity attaches to jus cogens violations in the first place. I am aware of only one case, Fang v. Jiang (New Zealand), in which a foreign court has granted conduct-based immunity to jus cogens violations in the absence of a statute.

There are, on the other hand, a host of foreign and international decisions holding that jus cogens violations cannot be considered official acts for purposes of immunity. I will limit myself to three: (1) in 1947, the Nuremberg Tribunal held that “[t]he principle of law, which under certain circumstances, protects the representatives of a state, cannot be applied to acts which are condemned as criminal by international law”; (2) in 1962, the Israeli Supreme Court held in the Eichmann case that crimes against humanity “in point of international law . . . are completely outside the ‘sovereign’ jurisdiction of the State that ordered or ratified their commission, and therefore those who participated in such acts must personally account for them and cannot shelter behind the official character of their task or mission”; and (3) in 1999, the UK House of Lords held that former Chilean President Pinochet was not entitled to conduct-based immunity for torture, with Lord Brown-Wilkinson asking, “How can it be for international law purposes an official function to do something which international law itself prohibits and criminalises?”

The cases just cited are sometimes distinguished as involving criminal rather than civil jurisdiction. In my view, a civil/criminal distinction makes little sense in the international law of immunity, particularly because of the diversity of forms in which jurisdiction is exercised around the globe. But to find civil cases holding that jus cogens violations are not official acts for immunity purposes, one need look no further than U.S. courts. Before the Supreme Court’s decision in Samantar, a number of federal courts held that the FSIA applied to a foreign official “for acts committed in his official capacity” and that no immunity attached to “an official who acts beyond the scope of his authority.” Chuidian v. Philippine National Bank, 912 F.2d 1095, 1103, 1106 (9th Cir. 1990). Applying that distinction, U.S. courts consistently held that “officials receive no immunity for acts that violate international jus cogens human rights norms (which by definition are not legally authorized acts).” Enahoro v. Abubakar, 408 F.3d 877, 893 (7th Cir. 2005) (discussing cases). While the Supreme Court held in Samantar that the FSIA does not apply to foreign officials, it noted that the distinction between acts committed in an official capacity and those committed beyond the scope of authority “may well be correct as a matter of common-law principles.” Samantar v. Yousuf, 130 S. Ct. 2278, 2291 n.17 (2010).

The Fourth Circuit’s holding that conduct-based immunity does not attach to violations of jus cogens norms is correct. It does not conflict with the decisions of other circuits or of foreign courts and international tribunals that have addressed the “quite distinct” question whether to recognize exceptions to immunities that have already attached. And it is consistent with a large number of international, foreign, and U.S. decisions holding that jus cogens violations are not official acts for purposes of conduct-based immunity.