As Opinio Juris readers know, the U.S. Supreme Court heard arguments on Wednesday in the case of Samantar v. Yousuf (briefs and transcript available here), which asks the Court to interpret the 1976 Foreign Sovereign Immunities Act. Commentators, including OJ’s own Julian Ku, have reported that the Justices seemed “unconvinced by all sides” (Julian’s words) and that none of the lawyers “seemed to make a convincing case” (according to Lyle Denniston over at ScotusBlog). The Justices did not seem unconvinced about what the FSIA actually says. But they seemed to wish that it provided more guidance on a subject about which it is silent, namely, the various immunities that may be available to former foreign officials such as Samantar. The question now is whether they will interpret the FSIA as it is (leaving the question of individual immunities to be worked out by the lower courts in the first instance), or whether they will instead interpret the statute as they would like it to be.
When Congress passed the FSIA in 1976, it had a particular problem in front of it: the diplomatic pressures that were being brought to bear on the Executive Branch by foreign states who wanted the U.S. State Department to conclude that a given action was based upon a commercial activity, and that the foreign state or state entity was therefore immune from suit under the terms of the 1952 Tate Letter. But this suit for torture and extrajudicial killing was brought against Samantar, a former Somali official who now lives in Virginia, not against Somalia itself. As Justice Kennedy interjected after Samantar’s lawyer Shay Dvoretzky had barely introduced himself, “I’m having difficulty seeing how the issues as presented in the brief really resolve very much.” That is because, with respect to suits against individuals, the FSIA doesn’t resolve very much.
Does that mean that plaintiffs can simply circumvent state immunity by naming individuals as defendants? No. In certain cases, suits against individuals may well be the functional equivalent of suits against the state, in which case, as Justice Ginsburg emphasized, “[w]hether it’s injunctive relief or money relief, if the relief is against the state, obviously, you can’t dodge it by naming the officer.” But (again in Justice Ginsburg’s words) “this is a case seeking money out of the pocket of Samantar and no money from the treasury of Somalia.” Even though states necessarily act through individuals, individuals can be held accountable for their acts without violating the immunity of states for those same acts. (If a concern arises that adjudicating a particular claim would require invalidating the act of a foreign sovereign taken within its own territory, that can be resolved under the Act of State doctrine, as Justice Ginsburg and Justice Breyer emphasized at oral argument.) It would be bizarre to suggest that a U.S. court couldn’t impose consequences on an individual such as Charles “Chuckie” Taylor Jr. by sentencing him to prison for torture committed in Liberia just because Liberia itself would enjoy immunity for torture under the FSIA. The same is true of consequences in the form of civil remedies….