Academic journal article Vanderbilt Journal of Transnational Law

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

Academic journal article Vanderbilt Journal of Transnational Law

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

Article excerpt

ABSTRACT

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 H 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.

TABLE OF CONTENTS

I.   INTRODUCTION

II.  CUSTOMARY INTERNATIONAL LAW AND THE
     POST-SAMANTAR COMMON LAW OF OFFICIAL
     IMMUNITY

III. INTERNATIONAL LAW AND FOREIGN OFFICIAL
     IMMUNITY: THE HISTORICAL BACKGROUND

IV.  FOREIGN SOVEREIGN IMMUNITY AND THE
     HUMAN RIGHTS TRANSFORMATION OF
     INTERNATIONAL LAW

V.   HUMAN RIGHTS VIOLATIONS, STATE RESPONSIBILITY,
     AND FOREIGN OFFICIAL ACCOUNTABILITY

VI.  CONCLUSION

I. INTRODUCTION

In a pattern repeated multiple times throughout 2011, tens of thousands of citizens gathered peacefully to protest the repressive actions of unelected governments. Senior government leaders ordered state officials to detain and torture the protesters or to shoot into unarmed crowds. The domestic legal systems, controlled by the regimes in each of these countries, provided no means by which those injured could seek redress or those responsible could be held accountable. The few international tribunals offered little or no relief because of their limited mandates and limited resources.

After being stymied elsewhere, victims and survivors of these massive abuses are likely to seek justice in other countries. But if the domestic courts of a foreign state seek to hold accountable government officials responsible for human rights abuses, those officials will inevitably claim immunity from criminal prosecution or civil lawsuits. They will argue that they are protected by the state's own immunity because only the state can be held responsible for acts committed by its officials, even if those actions violate international law.

This claim to immunity is founded on two interrelated errors, one based in history and one in logic. First, the human rights transformation of international law that began in the aftermath of World War II has also transformed immunity law. International human rights norms have rendered obsolete the view that a state can protect its own officials from accountability for international human rights violations. Second, immunity absolutists err when they insist that, because the state is responsible under international law for acts committed in the exercise of governmental authority, logic dictates that the officials who commit such acts must be protected by the state's immunity.

In the United States, the international law principles underlying official immunity have new relevance in the wake of the 2010 Supreme Court decision in Samantar v. Yousuf. (1) As explained in Part II, Samantar held that the immunity of foreign officials is governed by the common law, not by the Foreign Sovereign Immunities Act (FSIA). (2) The post-Samantar common law will likely look, in part, to international law. To provide context for an understanding of the international doctrines governing official immunity, Part III reviews the historical roots of both state and official immunity, explaining how each has evolved to reflect significant changes in international law and foreign relations. …

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