The 4th Circuit Holding on Foreign Official Immunities in Yousuf v. Samantar

Muhammad Ali Samantar served as Defense Minister and later Prime Minister of Somalia, fleeing the country in 1991 and coming to the US in 1997.  He was sued under the Alien Tort Statute and Torture Victims Protection Act under allegations of torture, extrajudicial execution, and illegal detention by government agents claimed to be under his official command.  On remand from SCOTUS, which held in 2010 that immunity of foreign officials is governed by federal common law and not the Foreign Sovereign Immunities Act, the Fourth Circuit has issued its opinion.  It’s a noteworthy holding and discussion of the role of the State Department in pronouncing on who has official immunity and in what kinds of ways.  Over at Opinio Juris, UC Hastings law school professor William Dodge (who served as international law counselor at the Department of State during the last year, and in that position working on the State Department’s amicus brief in the case) gives a very interesting discussion and critique of the holding.  Here is a bit:

On November 2, the U.S. Court of Appeals for the Fourth Circuit issued its opinion on remand in Yousuf v. Samantar. The opinion contains two key holdings: (1) that while State Department determinations of status-based immunity (e.g. head-of-state immunity) are entitled to absolute deference, State Department determinations of conduct-based immunity for official acts are entitled only to substantial weight; and (2) that foreign officials are not entitled to conduct-based immunity for violations of jus cogens norms …

On remand, the State Department determined that Samantar did not enjoy immunity, emphasizing the lack of a current recognized government in Somalia that could assert or waive Samantar’s immunity and the fact that Samantar is a resident of the United States. The district court followed the State Department’s determination, and Samantar appealed to the Fourth Circuit.

The United States filed an amicus brief in the Fourth Circuit arguing that the State Department’s determination with respect to Samantar’s immunity was binding on the courts, but the Court of Appeals held that this depended on the kind of immunity determined. Broadly speaking, there are two sorts of foreign official immunities. Status-based immunities—like head-of-state immunity—depend on an official’s status as the current holder of an office and extend to all of his actions, whenever performed. Such immunities last only as long as the official continues in office. Conduct-based immunity, on the other hand, extends only to acts taken in an official capacity, but such immunity continues after the official leaves office. Current officials who do not qualify for status-based immunities, as well as all former officials, are entitled only to conduct-based immunity for their official acts …

The 4th Circuit reached its conclusion on status immunity and the binding effect of State Department determination by looking to the president’s Constitutional authority to “receive Ambassadors and other public Ministers.”  But with regard to conduct-based immunity, the 4th Circuit found no equivalent Constitutional authority, holding that State Department determinations were thus substantial authority, but not flat-out binding.

Professor Dodge goes on, in his post, to discuss the court’s holding regarding the substance of conduct-based immunity, as well as offering two important critiques of the 4th Circuit holding.  The post offers an excellent, short read on an area of law that plays in the background to a number of important cases, including some in the Alien Tort Statute area.

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