Remand to the Court

United States Statement of Interest on Remand to the District Court in 2011

United States views on international law (based on the document “Digest of U.S. Practice in International Law”): On February 14, 2011, the United States submitted a statement of interest in the U.S. District Court for the Eastern District of Virginia to convey the Department of State's determination that the defendant, a former Somali official, was not immune from suit. Yousuf v. Samantar, No. 04-1360 (E.D. Va.). The suit was brought, pursuant to the Torture Victim Protection Act (“TVPA”) and the Alien Tort Statute (“ATS”), against Mohamed Ali Samantar, a U.S. resident who had formerly served in several high-ranking positions in the Somali government. In 2011, the case was before the district court on remand from the U.S. Supreme Court. see this world legal encyclopedia in relation with the year 2010 at 397-428 and World Encyclopedia of Law 2009 at 370-74 for background on the case.

The U.S. statement of interest in Yousuf v. Samantar relied on the Supreme Court's determination in Samantar v. Yousuf, 130 S. Ct. 2278 (2010), that the FSIA does not govern the immunity of individual officials. The statement of interest included as an exhibit the determination of the Department of State that Samantar does not enjoy immunity from the jurisdiction of U.S. courts in this action. Excerpts of the U.S. statement of interest follow (with footnotes and citations to the record omitted). The full text, including the State Department's determination as Exhibit 1, is available at (internet link) state.gov/s/l/c8183.htm.

Developments

In Samantar, the Supreme Court explained that if the Department of State recognized and accepted the foreign government's request for a suggestion of immunity, the district court surrendered its jurisdiction. 130 S. Ct. at 2284. The Executive's role traditionally has encompassed acknowledging that certain foreign government officials enjoy immunity because of their particular status as well as acknowledging whether the officials should be immune from suit for the conduct at issue. See, e.g., Isbrandtsen Tankers, Inc. v. President of India, 446 F.2d 1198, 1200 (2d Cir. 1971) (deferring to State Department's determination that alleged conduct was of a public, as opposed to a private/commercial nature). Taking into account the relevant principles of customary international law, the Department of State has made the attached determination on immunity in this case, and we explain below certain critical factors underlying the Executive's determination here. Because the Executive Branch is taking an express position in this case, the Court should accept and defer to the determination that Defendant is not immune from suit. See Samantar, 130 S. Ct. at 2284; Isbrandtsen Tankers, 446 F.2d at 1201 (“[O]nce the State Department has ruled in a matter of this nature, the judiciary will not interfere.”).

Upon consideration of the facts and circumstances in this case, as well as the applicable principles of customary international law, the Department of State has determined that Defendant enjoys no claim of official immunity from this civil suit. See State Dep't Letter, attached as Ex. 1. Particularly significant among the circumstances of this case and critical to the present statement of interest are (1) that Samantar is a former official of a state with no currently recognized government to request immunity on his behalf, including by expressing a position on whether the acts in question were taken in an official capacity, and (2) the Executive's assessment that it is appropriate in the circumstances here to give effect to the proposition that U.S. residents like Samantar who enjoy the protections of U.S. law ordinarily should be subject to the jurisdiction of the U.S. courts, particularly when sued by U.S. residents.

Details

The immunity protecting foreign officials for their official acts ultimately belongs to the sovereign rather than the official. See, e.g., Arrest Warrant of 11 Apr. 2000 (Dem. Rep. Congo v. Belgium), 2002 I.C.J. 3, ¦ 61 (Feb. 14) (Merits) (a foreign official “will cease to enjoy immunity from foreign jurisdiction if the State which they represent or have represented decides to waive that immunity”). Former officials generally enjoy residual immunity for acts taken in an official capacity while in office. Id. Because the immunity is ultimately the state's, a foreign state may waive the immunity of a current or former official, even for acts taken in an official capacity. See In re Doe, 860 F.2d 40, 45 (2d Cir. 1988) (“Because it is the state that gives the power to lead and the ensuing trappings of power—including immunity—the state may therefore take back that which it bestowed upon its erstwhile leaders.”).

The typical practice is for a foreign state to request a suggestion of immunity from the Department of State on behalf of its officials. See Samantar, 130 S.Ct. at 2284… . Because the immunity belongs to the state, and not the individual, and because only actions by former officials taken in an official capacity are entitled to immunity under customary international law, the Executive Branch takes into account whether the foreign state understood its official to have acted in an official capacity in determining a former official's immunity or non-immunity.

This case presents a highly unusual situation because the Executive Branch does not currently recognize any government of Somalia. See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 410 (1964) (“Political recognition [of a foreign sovereign] is exclusively a function of the Executive.”). …

More about the Issue

As noted, a former official's residual immunity is not a personal right. It is for the benefit of the official's state. In the absence of a recognized government authorized either to assert or waive Defendant's immunity or to opine on whether Defendant's alleged actions were taken in an official capacity, the Department of State has determined that such immunity should not be recognized here. That determination has taken into account the potential impact of such a decision on the foreign relations interests of the United States. See Ex. 1. In future cases presenting different circumstances, the Department could determine either that a former official of a state without a recognized government is immune from civil suit for acts taken in an official capacity, or that a former official of a state with a recognized government is not immune from civil suit for acts that were not taken in an official capacity.

The Executive's conclusion that Defendant is not immune is further supported by the fact that Defendant has been a resident of the United States since June 1997. A foreign official's immunity is for the protection of the foreign state. Thus, a former foreign official's decision to permanently reside in the United States is not, in itself, determinative of the former official's immunity from suit for acts taken while in office. Basic principles of sovereignty, nonetheless, provide that a state generally has a right to exercise jurisdiction over its residents. See, e.g., Schooner Exchange, 11 U.S. at 136. In the absence of a recognized government that could properly ask the Executive Branch to suggest the immunity of its former official, the Executive has determined in this case that the interest in permitting U.S. courts to adjudicate claims against U.S. residents warrants a denial of immunity.

Resources

See Also

• Privileges
• Immunities
• Immunity
• Foreign Officials
• United States