Abusing the Authority of the State: Denying Foreign Official Immunity for Egregious Human Rights Abuses

Government officials accused of human rights abuses often claim that they are protected by state immunity because only the state can be held responsible for acts committed by its officials. This claim to immunity is founded on two interrelated errors. First, the post-World War II human rights transformation of international law has rendered obsolete the view that a state can protect its own officials from accountability for human rights violations. Second, officials can be held individually responsible for their own actions even when international law also holds the states liable for those acts.

This Article begins with an analysis of U.S. foreign official immunity norms after the Supreme Court decision in Samantar v. Yousuf, 130 S. Ct.2278 (2010). Based on a review of the historical roots of state and official immunity and the impact of modern human rights law on the principles underlying foreign official immunity, the Article then argues that both logic and policy support denying immunity to officials even if the state itself is granted immunity.