The Modern Common Law of Foreign Official Immunity

In Samantar v. Yousuf, 130 S. Ct. 2278 (2010), decided in June 2010, the U.S. Supreme Court held that the Foreign Sovereign Immunities Act (FSIA), the federal immunity statute, does not protect foreign government officials sued in U.S. courts. The decision resolved longstanding splits among the circuits and between the circuits and the Executive Branch on an issue that is key to international relations and hotly contested around the world: When are government officials immune from suit in the courts of a foreign state? The Court remanded to the lower court to determine whether common law immunity protects foreign officials such as the defendant, a former official of Somalia who has been sued for torture and summary execution.

With little guidance from the Supreme Court, the lower courts are now charged with developing common law standards to determine when a foreign official is immune from suit in the United States. Suits for human rights violations will be particularly contentious, as the courts seek to reconcile the competing demands of sovereign immunity and human rights norms. The courts will not be able to simply adopt common law principles applied before the FSIA was enacted in 1976, because both international and U.S. norms governing accountability for human rights violations have changed dramatically since that time. Instead, courts should look for guidance to international and domestic immunity principles and doctrines developed in U.S. human rights litigation.

When foreign officials violate clearly defined, widely accepted international law norms, they act outside of their lawful authority and are not entitled to immunity.