Foreign Official Immunity After Samantar

In Samantar v. Yousuf, the U.S. Supreme Court unanimously held that the Foreign Sovereign Immunities Act (FSLA) does not govern the immunity of foreign officials from legal proceedings in U.S. courts. Part I of this symposium contribution seeks to put in sharper focus exactly what is, and what is not, in dispute following Samantar. Part II presents three challenges to common assumptions about conduct-based immunity, which I consider under the headings of personal responsibility, penalties, and presence. Under the heading of personal responsibility, I emphasize that state responsibility and individual responsibility are not mutually exclusive.

Under penalties, I argue that civil immunity and criminal immunity are not fundamentally distinct. Under presence, I emphasize that a defendant who enters the forum state's territory might justifiably have a weaker claim to conduct-based immunity than one who does not. Part III suggests some factors that should guide lower courts in determining an individual defendant's entitlement to immunity going forward.