Guest Post: Official Act Immunity – Getting the Answers Right

[Ingrid Wuerth is Professor of Law and Director of International Legal Studies at Vanderbilt University Law School.] 

Yes, this is another post on foreign official immunity, prompted in part by the Fourth Circuit’s decision in Samantar.  It responds to Professor Bill Dodge’s post here and contributes to the growing blog commentary on this topic summarized in my earlier post here.  I am grateful to Opinio Juris for hosting this discussion.

In this post, I focus on just one issue.  The Fourth Circuit’s decision in Samantar reasoned that jus cogens violations are not “private acts” but instead can constitute “official conduct” that comes within the scope of foreign official immunity.  Bill disagrees, arguing that conduct violating jus cogens can never be official for immunity purposes, but is instead always private.  Facts on the ground, State practice, and the purposes of immunity all suggest that the Fourth Circuit was correct.

As other commentators have emphasized, the perpetrators of human rights abuses do not generally operate privately, but instead “through the position and rank they occupy.”  It is their official position which allows them to “order, instigate, or aid and abet or culpably tolerate or condone such crimes as genocide or crimes against humanity or grave breaches of the Geneva Conventions.”  (Antonio Cassese, at 868).  Thus even for many people who strongly favor accountability in international fora (like the late Professor Cassese), it is hard to view jus cogens as somehow inherently private; one might call this a flies-in-the-face-of-reality argument.  (Dapo Akande & Sangeeta Shah, at 832 (further citation omitted)).  The House of Lords itself – in an opinion directly counter to Bill’s position –rejected the argument that jus cogens violations are not official acts for immunity purposes. Jones v. Saudi Arabia ¶ 19 (Lord Bingham) (“I think it is difficult to accept that torture cannot be a governmental or official act..”) id. at ¶ 85 (rejecting “the argument that torture or some other contravention of a jus cogens cannot attract immunity ratione materiae because it cannot be an official act.”) (Lord Hoffman).

What State practice does support the not-official-acts argument?  There is language in Pinochet that provides some support – but this aspect of the Pinochet case has been clearly rejected in the subsequent unanimous decision of the House of Lords itself in Jones.  The continued reliance on Pinochet for this point is baffling.  Similarly, the government’s statement of interest  in Samantar actually eschews the not-official-acts argument; instead it reasoned that Mr. Samantar was not entitled to immunity because of his residence in the United States and the lack of recognized government in Somalia capable of invoking immunity.  Consistent with the government’s submission, the 4^th Circuit rejected the not-official-act argument in the Samantar case.  This is State practice, but it does not support the not-official-act argument.  More evidence is marshaled here.

As I suggested in my prior post, I do think the TVPA and cases applying or relying on it could constitute State practice showing that those accused of torture (and perhaps other jus cogens violations) are not entitled to immunity (although perhaps on different grounds than those advanced by Bill), especially if the state entitled to immunity actually invoked it.  None of the U.S. cases denying immunity involved a state invocation of immunity (and neither did Eichmann or Nuremberg), but as I describe at 106 AJIL (at 751), the position of the Philippines government in the U.S. Marcos litigation from the early 1990’s counts as State practice that supports the not-official-acts position.  Whether courts will rely on TVPA-based reasoning now that the Supreme Court has held that Foreign Sovereign Immunities Act does not apply to these cases is unclear.  One variable is the government’s position on this issue – if the Obama Administration does adopt Bill’s view perhaps that might sway the courts – on the other hand, even if it does so, the inconsistency with the Bush administration may undermine the deference accorded the government.  Chief Justice Roberts and Justice Scalia made exactly that point in the Kiobel oral argument (at 43-45) and the issue is discussed in more detail in my forthcoming article The Supreme Court and the Alien Tort Statute: Kiobel v. Royal Dutch Petroleum.  In any event, the article mentioned above, Pinochet’s Legacy Reassessed, 106 AJIL 731 (2012), analyzes a large number of cases often cited to show that officials enjoy no immunity for alleged jus cogens violations, and finds little support for Bill’s “not-official-act” argument or for the “normative hierarchy” theory – another basis upon which many people have argued against official immunity for jus cogens violations.  Professors Curt Bradley and Larry Helfer have also surveyed immunity cases and find (at pages 245-46)  an emerging principle that “jus cogens violations committed by officials are governmental rather than private acts.”

The generally accepted purposes of immunity also undercut the not-official-acts argument.  Immunity is designed to protect the state, by ensuring that suit cannot be brought against its officials for conduct for which the state itself would be responsible under international law.  As Lord Hoffman wrote in the Jones case (at ¶ 12)

International law does not require, as a condition of a state’s entitlement to claim immunity for the conduct of its servant or agency that the latter should have been acting in accordance with his instructions or authority.  A state may claim immunity for any act for which it is, in international law, responsible, save where an established exception applies.

Under this view, the individual benefits from the immunity of the state, which may to choose to waive that immunity.  Denying that an individual’s actions are official, even when carried out as part of his official position, allows conduct for which the state is responsible to be adjudicated in foreign national courts, counter to the purpose of immunity.

There is a different way of thinking about immunity, however, and one that is consistent with Bill’s argument. Official immunity might be understood as protecting the individual defendant from substantive liability that ought to rest with the state.  Versions of this argument are explored by Roseanne Van Alebeek and Anthony Colangelo.  If one takes this view, then the immunity is in some sense that of the individual, not the state (which cannot waive it).  And if international law imposes substantive liability on the individual, as for jus cogens violations, then there is no immunity..  Some of the Nuremberg and Eichmann “immunity” precedent upon which Bill relies is best understood in this sense. 106 AJIL at 762.  Moreover, if immunity is a substantive defense, then there is indeed a tension between the attribution point and the 2001 Draft Articles on State Responsibility, article 58 of which expressly states that its rules on attribution are “without prejudice to any question of the individual responsibility under international law of any person acting on behalf of a State.”  If immunity is a procedural defense, however, one that does not go at all to individual responsibility but instead to available fora, then the purported tension – or what Bill calls a flat contradiction – disappears entirely.  Immunity as a substantive defense thus fits very well with Bill’s argument.  But there is almost no contemporary support for it.  Instead, modern State practice provides extremely strong support for the view that official immunity is derived from the procedural immunity of the state, which may choose to waive it.  Some of that State practice is described on pages 10-12 of an article entitled Foreign Official Immunity: Invocation, Purpose, and Exceptions.