Keitner on Immunities of Foreign Officials from Civil Suit

Chimene Keitner has filed an amicus brief in the United States Supreme Court in Yousuf v. Samantar. In this case, torture survivors and victims' family members sued Samantar, the former Prime Minister and Minister of Defense of Somalia, for torture and extrajudicial killing. Samantar lives in Virginia. The Fourth Circuit held that the Foreign Sovereign Immunities Act of 1976 (FSIA) does not apply to individuals, and therefore does not shield Samantar from suit. It remanded the question of whether other, non-statutory sources of immunity might apply. The U.S. Supreme Court granted Samantar's petition for certiorari to review the Fourth Circuit's decision interpreting the FSIA. Briefing is currently in progress, and oral arguments are scheduled for March 3.

Chimene authored the Brief of Professors of Public International Law and Comparative Law as Amici Curiae in Support of Respondents, which is available online here (http://ssrn.com/abstract=1543642 http://ssrn.com/abstract=1543642> ). This amicus brief systematically examines non-FSIA case law involving the immunities of foreign officials from civil suit. In the context of this case, the brief refutes two unsupported assertions made by the Petitioner. First, Petitioner asserts that "pre-1976 common law immunized a state's officials for their official acts." He relies heavily on this assertion for his conclusion that the FSIA should be read to include former foreign officials notwithstanding the FSIA's omission of any reference to individuals in its definition of the term "foreign state." See 28 U.S.C. § 1603(a). Second, Petitioner claims that "the overwhelming current international authority" provides immunity to former foreign officials sued in their personal capacity for acts of torture and extrajudicial killing. The authorities Petitioner cites, and significant authorities that he omits to cite, do not support these assertions. Non-FSIA sources of foreign official immunity do not provide a blanket shield from personal liability for universally recognized international law violations, even if such violations were committed by individuals who held government positions.