[Prof. Beth Stephens of Rutgers Law School at Camden has litigated and written widely on related issues. Additionally, she served a counsel for one of the (victorious) respondents in the Samantar case.  We are of course honored that she is able to share her views with us. Again, a reminder that "Related Posts" will send you to a collection of all of the posts on this topic.] 

The Supreme Court decision in Samantar v. Yousuf put to rest to a line of Circuit court decisions that has baffled me for twenty years. Immunity for some foreign government officials for some official acts may or may not be good policy, but I’ve never understood the argument that such immunity could be found within the text of the FSIA. Moreover, the executive branch under multiple administrations, shared my reading of the statute – a level of support that has been rare in my professional career. 

The executive branch has also argued consistently over many years that common law immunity for foreign government officials survived passage of the FSIA. The Supreme Court in Samantar seemed to agree, but took pains to say very little about the scope of any such immunity. The Court acknowledged the existence of “specialized” or “position-based” immunities for diplomats, consuls and heads-of-state, and stated that “we do not doubt that in some circumstances the immunity of the foreign state extends to an individual for acts taken in his official capacity.” The decision remanded the case to the District Court to consider any non-FSIA defenses, including whether Samantar “is entitled to immunity under the common law.”

Putting aside the issues likely to arise on remand in Samantar, a case on which I served as one of the counsel for the Respondents, a few points on where other cases may go from here:

Prior to Samantar, even in Circuits that followed Chuidian, the FSIA had not posed a significant hurdle to human rights cases because most cases followed the pattern of the lawsuit against Ferdinand Marcos, in which the Ninth Circuit applied Chuidian but found that Marcos’ acts of torture, execution, and disappearance “were clearly acts outside of his authority as President,” “were not taken within any official mandate,” and, as a result, were not protected by the FSIA.

A key issue for future cases will be to determine what law will govern the circumstances in which a suit will be deemed an “official capacity” suit for immunity purposes. Looking purely to the law of the foreign state, as interpreted by the government of that state, would pose a difficult conflict. I do not think, for example, that our courts will conclude that a foreign official accused of genocide can claim sovereign immunity based upon an assertion that, in committing the genocide, he or she was acting within the official policy of a foreign government. If the reach of official authority that will entitle an individual to assert immunity is governed at least in part by international law, government officials who have committed violations of widely accepted international human rights norms will not be protected by immunity. The Torture Victim Protection Act provides a model: The TVPA states clearly that some acts are tortious and subject to suit in U.S. courts when committed under color of foreign law.

Finally, the common law of immunity today is not necessarily identical to the common law of 1976. Since that time, relevant doctrines of U.S. law, domestic law in other countries, and international law have all evolved. Human rights norms have expanded greatly, along with international and domestic approaches to accountability. For example, statutory changes in the United States such as the TVPA would override pre-existing common law. Similarly, treaties and customary international law may impose obligations to hold accountable those who violate human rights that did not exist when the executive branch and the courts last addressed the immunity of foreign government officials.

[Opinio Juris note: We are very pleased that Professor Beth Stephens of the Rutgers University School of Law at Camden, a leading scholar of the Alien Tort Statute, has offered to provide a reaction to the Bradley-Goldsmith-Moore Article and we post her thoughts in full below]

Ten years after publication of their first attack on the “modern position,” Professors Bradley and Goldsmith, now joined by Professor Moore, continue to undermine the strength of their argument by opposing exaggerated (and simplistic) categories – “the modern position” and the “revisionists.” Elsewhere, they acknowledge that the group they lump together as the modernists includes a range of views about the modern import of customary international law. One such view is amply supported by the Sosa decision: customary international law is a source of federal common law to be applied in appropriate cases. That is not to say that it is incorporated in toto into federal common law. But it does signify that it can be relied upon by the federal courts in a range of situations (some of which they identify in their article), that it is federal (not state) law, and that disputes about its interpretation raise federal questions.

That said, I’m more interested at the moment in their interpretation of the impact of Sosa on the ongoing Alien Tort Statute litigation. Two points here: First, they conclude that Sosa is a rejection of much of Filartiga and its progeny only by misinterpreting those cases. The Filartiga line of cases was a remarkably cautious set of decisions. The standard put forth by Sosa – claims must be “accepted by the civilized world” and “defined with…specificity” – comes directly from Filartiga, which required that claims “command the ‘general assent of civilized nations’” and be capable of “clear and unambiguous” definition. The cases use virtually identical language because both draw directly from Paquete Habana. In practice, application of this standard pre-Sosa led to the dismissal of most ATS claims, many of them for failure to state an international law violation that met its exacting requirements. But the standard also permitted a handful of important cases to proceed against defendants accused of truly egregious human rights abuses.

Second, their discussion of the application of Sosa to the current debate about corporate aiding and abetting liability is surprisingly thin. Step back for a minute. In what legal system do we hold liable the person who shoots the gun, but not the person who buys it and hands it to him, loaded and ready to shoot? U.S. and international courts and commentators have recognized this consistently, from the 18th century (see Blackstone’s discussion of accessories to piracy, for one example) to the 21st century (the administration recognized this in the context of a civil statute imposing liability for terrorist acts, urging the courts to interpret the statute to include aiding and abetting liability). Whether viewed as a matter of federal common law or widely accepted international law, complicity liability is surely part of the “tort” encompassed by the ATS. Finally, some disagreement about the standard to define aiding and abetting liability is not fatal: The paradigm case relied upon by Sosa to define piracy, U.S. v. Smith, recognized “a diversity of definitions,” but held that agreement about the core of the definition – “robbery, or forcible depredations upon the sea, animo furandi” – was sufficient.