Foreign Official Immunity

Samantar v. Yousuf in 2013

United States views on international law [1] in relation to Samantar v. Yousuf: After the Supreme Court decided the issue of applicability of the FSIA to foreign official immunity in Samantar in 2010, the case was remanded to the district court. The United States filed a statement of interest in the district court concluding that petitioner was not immune. See this world legal encyclopedia (in relation to issues that took place in the year 2011) at 338-40. Samantar appealed the district court's denial of his motion to dismiss and the United States submitted an amicus brief in the U.S. Court of Appeals for the Fourth Circuit. The Court of Appeals affirmed, but on grounds that differed from those relied on by the district court and in a manner that conflicted with the principles articulated by the United State in its submissions. In addition, in January 2013, the United States recognized a government of Somalia for the first time since 1991. See Chapter 9.B.1. On December 10, 2013, the United States filed an amicus brief in the case after Samantar petitioned for certiorari in the U.S. Supreme Court. The U.S. amicus brief is excerpted below and available in full at (Secretary of State website) state.gov/s/l/c8183.htm.*

Some Aspects of Samantar v. Yousuf

2. The court of appeals sought to draw a distinction between Executive Branch determinations of status-based immunities, which the court acknowledged would be binding, and Executive Branch determinations of conduct-based immunities, which the court considered itself free to second-guess. That distinction has no basis.

Developments

a. As an initial matter, this Court in Samantar did not distinguish between conductbased and status-based immunities in discussing the deference traditionally accorded to the Executive Branch. Rather, in endorsing the two-step approach to immunity questions, the Samantar Court recognized that the same procedures applied in cases involving foreign officials. 130 S. Ct. at 2284-2285. Indeed, the two cases cited by this Court involving foreign officials— Heaney and Waltier v. Thomson, 189 F. Supp. 319, 320-321 (S.D.N.Y. 1960)—both involved consular officials who were entitled only to conduct-based immunity for acts carried out in their official capacity. And in reasoning that Congress did not intend to modify the historical practice regarding individual foreign officials, the Court cited Greenspan, in which the district court deferred to the State Department's recognition of conduct-based immunity of individual foreign officials. 1976 WL 841, at *2; see 130 S. Ct. at 2290.

Details

b. In concluding that conduct-based immunity determinations are not binding on the judiciary, the court of appeals relied on two law review articles for the proposition that the Executive's determinations of status-based immunity are based on its power to recognize foreign sovereigns, see U.S. Const. Art. II, § 3, while the Executive's conduct-based determinations are not grounded on a similar “constitutional basis.” Pet. App. 16a-17a. But this Court has long recognized that the Executive's authority to make, and the requirement of judicial deference to, foreign sovereign immunity determinations flow from the Executive's constitutional responsibility for conducting the Nation's foreign relations, not the more specific recognition power. See, e.g., Ex Parte Peru, 318 U.S. at 589 (suggestion of immunity “must be accepted by the courts as a conclusive determination by the political arm of the Government” that “continued retention of the vessel interferes with the proper conduct of our foreign relations”); Hoffman, 324 U.S. at 34 (stating that courts will “surrender[]” jurisdiction upon a suggestion of immunity “by the political branch of the government charged with the conduct of foreign affairs”); Lee, 106 U.S. at 209 (“[T]he judicial department of this government follows the action of the political branch, and will not embarrass the latter by assuming an antagonistic jurisdiction.”); see also National City Bank of N.Y. v. Republic of China, 348 U.S. 356, 360-361 (1955) (stating that “[a]s the responsible agency for the conduct of foreign affairs, the State Department is the normal means of suggesting to the courts that a sovereign be granted immunity from a particular suit,” and that “the rule enunciated in The Schooner Exchange” rests on the need to avoid interfering in the Executive's conduct of foreign relations).

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The Executive's authority to make foreign official immunity determinations similarly is grounded in its power to conduct foreign relations. While the scope of foreign state and foreign official immunity is not invariably coextensive, see 130 S. Ct. at 2290, the basis for recognizing the immunity of current and former foreign officials is that “the acts of the official representatives of the state are those of the state itself, when exercised within the scope of their delegated powers.” Underhill v. Hernandez, 65 F. 577, 579 (2d Cir. 1895), aff

Samantar v. Yousuf in 2013 (Continuation)

United States views on international law [1] in relation to Samantar v. Yousuf: That deferential judicial posture as to both conduct-based and status-based immunity determinations is based in the separation of powers. Under the Constitution, the Executive is “the guiding organ in the conduct of our foreign affairs.” Ludecke v. Watkins, 335 U.S. 160, 173 (1948). As this Court recognized in this case, the Executive Branch's constitutional authority over the conduct of foreign affairs continues as a foundation for the Executive's authority to determine the immunity of foreign officials. 130 S. Ct. at 2291 (“We have been given no reason to believe that Congress saw as a problem, or wanted to eliminate, the State Department's role in determinations regarding individual official immunity.”); see Mistretta v. United States, 488 U.S. 361, 401 (1989) (“[T]raditional ways of conducting government . . . give meaning to the Constitution.”) (citation and internal quotation marks omitted). In the absence of a governing statute (such as the FSIA), it continues to be the Executive Branch's role to determine the principles governing foreign official immunity from suit. See, e.g., Ye v. Zemin, 383 F.3d 620, 626-627 (7th Cir. 2004), cert. denied, 544 U.S. 975 (2005). The court of appeals therefore erred in holding that the Executive Branch's determinations of conduct-based immunity are not entitled to controlling weight.

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B. The Court Of Appeals Erred In Creating A New Categorical Judicial Exception To Immunity

The court of appeals also committed legal error in declining to rest its determination of non-immunity on the specific ground set forth in the Executive Branch's Statement of Interest, which turned on the unique circumstances of this case, and instead fashioning a new categorical judicial exception to immunity for claims alleging violation of jus cogens norms.

Development

The per se rule of non-immunity adopted by the Fourth Circuit is not drawn from a determination made or principles articulated by the Executive Branch. To the contrary, the United States specifically requested the court not to address respondents' broader argument that a foreign official cannot be immune from a private civil action alleging jus cogens violations. Pet. App. 68a n.3. The court of appeals' decision is thus inconsistent with the basic principle that Executive Branch immunity determinations establish “substantive law governing the exercise of the jurisdiction of the courts.” Hoffman, 324 U.S. at 35-36.

Details

Indeed, both before and after this Court's decision in Samantar, the United States has suggested immunity for former foreign officials who were alleged to have committed jus cogens violations. See U.S. Amicus Br. at 19-25, Matar v. Dichter, No. 07-2579-cv (2d Cir. Dec. 19, 2007); U.S. Amicus Br. at 23-34, Ye v. Zemin, No. 03-3989 (7th Cir. Mar. 5, 2004) (suggestion of immunity on behalf of then-President Zemin of China in district court; after he left his position as head of state, the United States continued to recognize his immunity); see also Suggestion of Immunity Submitted by the U.S. at 6, Doe v. Zedillo, No. 3:11-cv-01433-MPS (D. Conn. Sept. 7, 2012); Statement of Interest and Suggestion of Immunity of and by the U.S. at 56, Giraldo v. Drummond Co., No. 1:10-mc-00764-JDB (D.D.C. Mar. 31, 2011) (third-party testimony was sought from former Colombian President Uribe in a suit in which he was alleged to have committed jus cogens violations); Statement of Interest and Suggestion of Immunity at 711, Rosenberg v. Lashkar-e-Taiba, No. 1:10-cv-5381-DLI-CLP (E.D.N.Y. Dec. 17, 2012). The courts deferred to the United States' Suggestions of Immunity in these cases. Matar v. Dichter, 563 F.3d 9, 14-15 (2d Cir. 2009); Ye, 383 F.3d at 626-627; Giraldo v. Drummond Co., 493 Fed. Appx. 106 (D.C. Cir. 2012), cert. denied, 133 S. Ct. 1637 (2013); Tr., Doe v. Zedillo, No. 3:11cv-01433-MPS (D. Conn. July 18, 2013); Rosenberg v. Lashkar-e-Taiba, No. 1:10-cv-5381-DLICLP, 2013 WL 5502851, at *5-*7 (E.D.N.Y. Sept. 30, 2013).

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Respondents erroneously assert (Br. in Opp. 17, 19-20) that the court of appeals' creation of a categorical exception to immunity whenever jus cogens violations are alleged is supported by the United States' amicus brief filed in this case when it was previously before the Court. See 08-1555 U.S. Amicus Br. 7, 24-26. Specifically, they contend that the United States stated that various factors, including the nature of the acts alleged, are “appropriate to take into account” in immunity determinations, and that courts (including the Fourth Circuit in this case) therefore are free to make immunity determinations on the basis of those factors. Br. in Opp. 19. That is incorrect.

Resources

Notes

1. Samantar v. Yousuf in the Digest of United States Practice in International Law