09 May Guest Post: Immunity — Separation of Powers, Human Rights Cases, and Yousuf v. Samantar
This post examines two aspects of the Fourth Circuit’s 2012 decision on remand in Yousuf v. Samantar. Samantar has petitioned the Supreme Court for certiorari again, and the initial briefing on the cert. petition should conclude soon. Now is accordingly an opportune time to examine the Fourth Circuit’s decision, which has attracted excellent blog commentary from John Bellinger and Curt Bradley at Lawfare and Bill Dodge here. A Swiss criminal case against Khaled Nezzar raising some related issues is discussed by Gabriella Citrone at EJILTalk! and by Evelyne Schmid at Intlawgrrls.
This post disagrees with some of the foregoing commentary, but it also endeavors to point readers to at least some of the arguments and scholarship on all sides of the debate. It will not introduce the Samantar case or the basics of immunity, which have been discussed by other bloggers and here. This post discusses the role of executive immunity determination in U.S. litigation and some aspects of conduct based immunity (ratione materiae) before foreign national courts for alleged jus cogens violations.
1. The Executive Branch and Immunity
The Fourth Circuit reasoned that with respect to head of state immunity the executive branch is entitled to absolute deference, but it receives only “substantial weight” for its determinations on conduct-based immunity. 699 F.3d at 772-73. The executive branch has argued here (as in other cases) that for both kinds of immunity its determinations are binding on the courts, based in part on admiralty cases from the 1940’s. Affording the government the power to control the outcome of litigation in federal court is in tension with Article III and inconsistent with many foreign relations cases in which the government is given little or no deference, including another area of federal common law: the act of state doctrine. One potential basis for power to make determinations binding on the federal courts, however, is the President’s constitutional power to “receive Ambassadors and other public Ministers” which includes the power to recognize foreign heads of state. The Fourth Circuit concluded that the President’s recognition power includes the power to make dispositive determinations of status but not conduct based immunity. The court’s decision on conduct-based immunity is very significant and clearly right, I believe, for reasons set out here.
The Fourth Circuit’s conclusion that the executive does control status-based determination is wrong, in my view, despite the arguments by Chimene Keitner and Lewis Yelin. The recognition power is a weak basis upon which to rest a general power over immunity because they are two very different determinations. Recognition includes the power to decide if an individual actually holds the position of head of state of a government recognized by the United States. But that is not the same thing as determining whether that official is legally entitled to immunity before domestic courts. The entitlement to immunity as a legal matter may change over time through changes in the common law, international law, and/or statutes; exceptions may develop as they have for state immunity. The Fourth Circuit reasoned that head of state immunity “involves ‘a formal act of recognition’” 699 F.3d at 772 (quoting Bo Rutledge)– and it does, but the government just controls the act of recognition itself (as a function of the Ambassadorial receipt clause) not the legal entitlement to immunity which might or might not follow. Similarly, only recognized governments are entitled to the act of state doctrine, but this does not give the president the power to control act of state determinations.
The view that recognition is equivalent to immunity probably arises because under the law today, heads of state are entitled to immunity without exceptions, so the ability to recognize a head of state has the effect of conferring immunity. But as a constitutional matter the President controls the recognition, but not the legal entitlement to immunity.
2. Human Rights Cases: Exceptions and Invocation
The Fourth Circuit also concluded that Mr. Samanatar was not entitled to immunity for alleged that constitute jus cogens violations. The Court determined that although his actions were performed in the course of his employment and thus constituted “official acts” of the sort generally entitled to immunity, a jus cogens exception to immunity has developed. State practice and ICJ jurisprudence support the court’s conclusion that criminal allegations, including violations of jus cogens norms, do not generally deprive conduct of its “official” nature for immunity purposes. Case concerning Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), 2008 I.C.J. ¶ 188 (June 4); UN Convention on Jurisdictional Immunities of States and their Property, Art. 2(b)(iv); Fang v. Jiang (New Zealand); Nezzar (Switzerland). This has been the position of the U.S. government as well. Bill Dodge disagrees, arguing in part that other precedent such as Jones v. Saudi Arabia (UK), Zhang v. Zemin (Australia), and Bouzari v. Iran (Canada) are inapplicable because they involved an immunity statute. But each case explicitly analyzes international law and concludes that jus cogens are official acts for immunity and other purposes. Much academic commentary reaches this conclusion as well, including a very helpful article by Dapo Akande and Sangeeta Shah at 21 EJIL 815 (2010).
Finally, The Nezzar opinion, consistent with Samantar, describes functional immunity as “ensur[ing] that State sovereignty is respected” by protecting the official from the “consequences of acts attributable to the State for which he is acting.” This link between attribution and immunity makes sense. Functional immunity is the immunity of the state, and its purpose is to protect the state itself. To effectuate this purpose immunity also applies to state acts performed by officials, protecting the official from suit for actions that are attributable to the state and for which the state bears responsibility. Individuals can unquestionably be held responsible under international law for actions taken on behalf of a state, immunity just limits the foreign domestic fora in which those actions can be adjudicated. Acts not attributable to the state, those taken by the individual in a private capacity, are not entitled to protection through conduct based immunity. As to whether other kinds of exceptions to immunity have developed for jus cogens violations, the evidence is described in more detail at 106 AJIL 731. The Torture Victim Protection Act, and Convention Against Torture (see the discussion of Pinochet in Jones) may provide the strongest grounds upon which to conclude that immunity has been overcome in particular contexts, but they afford limited support for the more sweeping claim that there is no immunity for jus cogens violations.
There is another way of limiting immunity in some human rights cases that is arguably more consistent with state practice and with the purpose of immunity: require the state rather than the individual defendant to invoke it. The individual’s invocation of immunity on his or her own behalf should not be sufficient, as the Samantar court appeared to recognize 699 F.3d at 777-78, and as the U.S. government argued in that case. The immunity belongs to the state and its function is to protect the state itself, which can choose to waive it on behalf of the individual defendant. If the state does not wish to invoke immunity, perhaps due to a regime change or the calculation that the state’s interests are not at issue in the case against the individual, then there is no reason to afford immunity. Allowing an individual to invoke immunity permits the over-enforcement of immunity norms because alleged wrong-doers can invoke immunity and avoid suit even when the purposes of immunity are not being served. Requiring the state to invoke immunity is broadly consistent with state practice: where states have clearly invoked immunity, they are likely to receive it. Pinochet is the lone clear counter-example. For a more extended version of this argument see this forthcoming article, Foreign Official Immunity: Invocation, Purpose and Exceptions.
The invocation issue has become even more interesting in the Samantar litigation. As the U.S. government emphasized, Somalia had no recognized government that could invoke immunity at the beginning of the case, so Mr. Samantar was not entitled to it. Now, after the case has gone on for almost a decade and the issue of immunity has been extensively litigated, the United States has recognized a government in Somalia and that government has invoked immunity. It is not clear how the U.S. government will respond, but immunity is a procedural defense, Jurisdictional Immunities of the State Case at ¶58 and thus a failure to invoke immunity can at some point in the litigation effectively constitute waiver.