In association with the International Commission of Jurists

Author: Ingrid Wuerth

19 May

[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? 
|
09 May

[Ingrid Wuerth is Professor of Law and Director of International Legal Studies at Vanderbilt University Law School.  You can reach her at:  Ingrid.wuerth@vanderbilt.edu.] 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...

|
14 Mar

[Ingrid Wuerth is Professor of Law at Vanderbilt Law School] War Powers and the War on Terrorism, the final chapter of Professor Bradley’s book, is excellent.  To be sure, I disagree with Professor Bradley on some points, so had I written the chapter it would have approached certain issues differently.    But rather than use this space to rehash those debates, I would like to offer a few broader thoughts about the chapter and about the issues raised by the book. Beginning with the war powers chapter itself, what I missed most in the chapter was a clearer historical narrative.  The chapter could have moved forward chronologically, for example, perhaps treating jus ad bellum and jus in bello separately, and by giving a much richer account of international law and war (or the threat thereof), especially in the 18th and 19th centuries.  As it is, the history in this chapter is pressed into the service of contemporary debates and the extent to which early U.S. administrations and courts were consumed by issues of war-initiation and the rules of prize is somewhat lost.  Framing the chapter this way might also have given greater place to international law itself and how it developed over the past two centuries, situating the U.S. experience within those developments, rather than situating international law within domestic separation of powers disputes. Had Professor Bradley taken such an approach, however, he might have sacrificed brevity and clarity, especially for newcomers to the field – and the book is written in part for such readers. So maybe this is less a criticism of the chapter itself, and more a statement about the limitations of the genre.
|
07 Feb

[Ingrid Wuerth is Professor of Law at Vanderbilt Law School and Director of Vanderbilt's International Legal Studies Program.] The International Court of Justice has issued its judgment in Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening). Germany won, as most observers had predicted. The dispute arose out of a series of decisions by Italian national courts...

|
25 Jul

Thank you for the opportunity to comment on International Law in the U.S. Supreme Court, edited by Bill Dodge, Mike Ramsey and David Sloss. Mike has already described the book’s purpose and organizational structure in a post from this morning. My post focuses on some of the book’s overall strengths and perhaps weaknesses. Edited volumes are hard to do...

|
08 Jul

Thanks to Roger Alford and Opinio Juris for hosting this discussion.  And renewed thanks to the distinguished respondents for their insightful commentary. Foreign official immunity issues arise in a variety of cases, especially in response to plaintiffs making commercial or human rights claims.  As Larry Helfer and David Stewart emphasize (and as I discuss in the article), in the human rights...

|
06 Jul

The article, Foreign Officials Immunity Determinations in U.S. Courts:  The Case Against the State Department, considers the executive branch’s power to make foreign official immunity determinations that are binding in U.S. courts. As many readers know, the Foreign Sovereign Immunities Act governs the immunity of foreign states in U.S. courts. This statute does not apply to the immunity of individual foreign...

|
15 Apr

[Ingrid Wuerth is a Professor of Law at Vanderbilt University Law School] This Article by John Coyle focuses on U.S. statutes that incorporate treaties into domestic law. As John defines them, incorporative statutes may include implementing legislation for non-self executing treaties, statutes that facilitate the implementation of self-executing treaties, or congressional executive agreements; the key question is whether they give effect...

|