[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?
