Samantar v. Yousef: The Foreign Sovereign
Immunities Act (FSIA) and Foreign Officials
Jennifer K. Elsea
Legislative Attorney
December 17, 2012
Congressional Research Service
7-5700
www.crs.gov
R41379
CRS Report for Congress
Pr
epared for Members and Committees of Congress
Samantar v. Yousef: The Foreign Sovereign Immunities Act (FSIA) and Foreign Officials
Summary
On June 1, 2010, the U.S. Supreme Court decided unanimously in Samantar v. Yousef that the
Foreign Sovereign Immunities Act (FSIA), which governs the immunity of foreign states in U.S.
courts, does not apply in suits against foreign officials. The ruling clarifies that officials of foreign
governments, whether present or former, are not entitled to invoke the FSIA as a shield, unless the
foreign state is the real party in interest in the case. Samantar’s particular facts involve the Alien
Tort Statute (ATS) and the Torture Victims Protection Act (TVPA), but the ruling applies to all
causes of action against foreign officials. The ruling leaves open the possibility that foreign
officials have recourse to other sources of immunity or other defenses to jurisdiction or the merits
of a lawsuit. Officials may assert immunity under the common law, for example, perhaps aided by
State Department suggestions of immunity. The Court also left open the possibility that Congress
could enact new provisions to address the immunity of foreign officials.
Prior to the Samantar decision, most federal judicial circuits interpreted the FSIA to cover foreign
officials as “agencies or instrumentalities” of the foreign state based on their interpretation that
Congress had intended to fully codify the common law of foreign sovereign immunity. To the
extent the FSIA exceptions codify sovereign immunity of states under the common law, as in the
case of lawsuits based on commercial activity under the restrictive theory, the recognition of a
separate theory of immunity for foreign officials may not yield results significantly different from
those cases in which courts applied the FSIA. The same common law considerations some courts
previously applied to determine whether a foreign official is an “agency or instrumentality” under
the FSIA would likely lead to similar results where the common law is applied directly. However,
where Congress enacts exceptions to the FSIA that depart from the common law, outcomes may
vary from cases decided under the pre-Samantar approach.
This report provides an overview of the FSIA, followed by a consideration of the remaining
options for foreign officials who seek immunity from lawsuits, as well as some of the questions
that may emerge from each option. The report also addresses legislation considered by the 112th
Congress addressing the immunity of foreign officials (the Justice Against Sponsors of Terrorism
Act, S. 1894 and H.R. 5904).
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Samantar v. Yousef: The Foreign Sovereign Immunities Act (FSIA) and Foreign Officials
Contents
Introduction ...................................................................................................................................... 1
The Foreign Sovereign Immunities Act ........................................................................................... 1
Circuit Split on Foreign Official Immunity ..................................................................................... 3
Samantar v. Yousef ........................................................................................................................... 5
Case Background ....................................................................................................................... 5
Supreme Court Decision ............................................................................................................ 5
Samantar on Remand ................................................................................................................ 7
The Foreign Sovereign Immunities Act: Post-Samantar ................................................................. 9
Options for Official Immunity Following Samantar ..................................................................... 12
Common Law Mechanism Aided by a Determination of the State Department on a
Case-by-Case Basis .............................................................................................................. 12
Functional Immunity Under the Common Law ................................................................ 13
Deference to the Executive Branch ................................................................................... 14
Official Immunity by Statute ................................................................................................... 16
Proposed Amendments to the FSIA: The Justice Against Sponsors of Terrorism Act .................. 17
Conclusion ..................................................................................................................................... 19
Contacts
Author Contact Information........................................................................................................... 20
Acknowledgments ......................................................................................................................... 20
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Samantar v. Yousef: The Foreign Sovereign Immunities Act (FSIA) and Foreign Officials
Introduction
On June 1, 2010, the U.S. Supreme Court decided unanimously in Samantar v. Yousef1 that the
Foreign Sovereign Immunities Act (FSIA), which governs the immunity of foreign states in U.S.
courts, does not apply in suits against foreign officials. Samantar’s particular facts involved the
Alien Tort Statute (ATS) 2 and the Torture Victims Protection Act (TVPA),3 but the ruling applies
to all causes of action against foreign officials. The holding clarifies that no foreign government
officials, neither present nor former, are entitled to invoke the FSIA as a defense, unless the
foreign state is the real party in interest in the case. Whether the FSIA applies to a lawsuit naming
a foreign official as defendant depends largely on whether the remedy is sought from the official
personally or whether the foreign government will be responsible for paying damages or
providing whatever other remedy a court may order in the event the plaintiff prevails, as would be
the case if an official is sued in an official capacity. The decision rejected the interpretation of the
majority of U.S. federal judicial circuits, in which foreign officials were regarded as covered by
the FSIA for lawsuits based on official actions taken within the scope of their authority.
The Court stressed that the inquiry does not end with the FSIA in such cases. The ruling leaves
open the possibility that foreign officials have recourse to other sources of immunity or other
defenses to jurisdiction or the merits of a lawsuit. Officials may assert immunity under the
common law (unwritten law that has been developed by courts), for example, perhaps aided by
State Department suggestions of immunity.4 This report provides an overview of the FSIA,
followed by a consideration of the FSIA’s possible application in the wake of the Supreme
Court’s ruling and the remaining options for foreign officials who seek immunity from lawsuits,
as well as some of the questions that may emerge from each option. The report also addresses
relevant legislation.
The Foreign Sovereign Immunities Act
Customary international law historically afforded sovereign states complete and absolute
immunity from suit in the courts of other states. This principle was rooted in the perfect equality
and absolute independence of sovereigns, as well as the need to maintain friendly relations.5
1 Samantar v. Yousef, 130 S. Ct. 2278 (2010).
2 28 U.S.C. §1350. The Alien Tort Statute (ATS) provides federal jurisdiction for tort suits by aliens in U.S. courts for
violations of the law of nations. The Supreme Court has construed the statute to cover only those torts that were viewed
as violations of the law of nations at the time of the statute’s passage in 1789. See Sosa v. Alvarez-Machain, 542 U.S.
692 (2004). Examples of such causes of action include torture and piracy. See id.
3 The Torture Victim Protection Act (TVPA), codified as a note to 28 U.S.C. §1350, provides a cause of action for
individuals with a significant connection to the United States to sue for torture or extrajudicial killings carried out under
color of law of a foreign nation. The plaintiff must exhaust the remedies within the foreign nation and must commence
suit within 10 years after the cause of action arose. See 28 U.S.C. §1350 Note.
4 Foreign officials may also be able to invoke the act of state doctrine as a defense. Under the act of state doctrine, a
court of one nation will not sit in judgment of the sovereign acts of another nation conducted within its own borders.
See Underhill v. Hernandez, 168 U.S. 250 (1897). The act of state doctrine is a defense to the merits of a case, while
sovereign immunity bars jurisdiction altogether before the merits are addressed. The doctrine is discretionary among
courts and can be pleaded by parties as an alternative to immunity. See Samantar, 130 S. Ct. at 2290.
5 See The Schooner Exchange, 11 U.S. (7 Cranch) 116 (1812) (holding a French warship to be immune from the
jurisdiction of a U.S. court).
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While each nation has full and absolute jurisdiction within its own territory, allowing it to
exercise jurisdiction over all parties there, states ordinarily choose not do so with respect to other
sovereign states due to considerations of comity. As Justice Marshall stated,
Perfect equality and absolute independence of sovereigns, and ... common interest impelling
them to mutual intercourse, and an interchange of good offices with each other, have given
rise to a class of cases in which every sovereign is understood to waive the exercise of a part
of that complete exclusive territorial jurisdiction, which has been stated to be the attribute of
every nation.6
During the last century, however, absolute sovereign immunity gradually gave way to a more
limited application after a number of states began engaging directly in commercial activities. To
allow foreign states to maintain their immunity in the courts of other states for ordinary
commercial transactions was said to give them an unfair advantage in competition with private
commercial enterprises. It also arguably denied private parties in other nations normal recourse to
courts to settle disputes.7 As a consequence, numerous states immediately before and after World
War II adopted the “restrictive principle” of state immunity. This principle preserves sovereign
immunity for most cases, but allows domestic courts to exercise jurisdiction over suits against
foreign states for claims arising out of their commercial activities.
When the United States adopted the restrictive principle of sovereign immunity by administrative
action in 1952,8 the State Department began advising courts on a case-by-case basis whether a
foreign sovereign should be entitled to immunity based upon the nature of the claim and foreign
policy considerations. In 1978, Congress codified the restrictive principle in the FSIA, so that the
decision no longer depended on a determination by the State Department.9 The FSIA states the
general principle that a foreign state is immune from the jurisdiction of the courts of the United
States, but sets forth several limited exceptions. The primary exceptions are:
1. Waiver (“the foreign state has waived its immunity either expressly or by
implication”),10
2. Commercial activity (“the action is based upon a commercial activity carried on
in the United States by the foreign state”),11 and
3. Torts committed by a foreign official within the United States (the “suit is
brought against a foreign State for personal injury or death, or damage to
property occurring in the United States as a result of the tortious act of an official
or employee of that State acting within the scope of his office or employment”).12
6 Id. at 137.
7 RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES §391 (1987).
8 The Acting Legal Adviser of the Department of State, Jack B. Tate, stated in a letter to the Acting Attorney General
that in future cases the Department would follow the restrictive principle. 26 Department of State Bulletin 984 (1952).
Previously, when a case against a foreign state arose, the State Department routinely asked the Department of Justice to
inform the court that the government favored the principle of absolute immunity; the courts usually acceded to this
advice. The Tate letter meant that the government would no longer make this suggestion in cases against foreign states
involving commercial activity.
9 28 U.S.C. §§1602-11.
10 Id. §1605(a)(1).
11 Id. §1605(a)(2).
12 Id. §1605(a)(5).
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Circuit Split on Foreign Official Immunity
Following the enactment of the FSIA, the question emerged as to whether the FSIA immunizes
foreign officials as well as foreign states from suit. The FSIA defines a “foreign state” to include:
a political subdivision of a foreign state or an agency or instrumentality of a foreign state.13
It defines “agency or instrumentality of a foreign state” to mean any entity:
(1) which is a separate legal person, corporate or otherwise, and
(2) which is an organ of a foreign state or political subdivision thereof, or a majority of
whose shares or other ownership interest is owned by a foreign state or political subdivision
thereof, and
(3) which is neither a citizen of a State of the United States as defined in [28 U.S.C. Section
1332(c) and (e)] nor created under the laws of any third country.14
The absence of any reference to foreign officials in the definitions of “foreign state” or “agency
or instrumentality” led to a split among the U.S. appellate circuit courts. The majority view
interpreted “foreign state” to include an official as an “agency or instrumentality of a foreign
state” when acting within his or her official capacity.15 This logic was based upon the idea that (1)
the state cannot function but through individuals; (2) the suits in question were really actions
against the foreign government itself; and (3) the FSIA codified the existing common law in place
at the time of passage. The common law of foreign sovereign immunity, according to these
courts, embraced immunity for foreign officials for their official acts, at least when the suit would
have the effect of enforcing an action against the state itself.
In Chuidian v. Philippine Nat’l Bank,16 the Ninth Circuit held that a suit against a bank and bank
official, in which the official instructed the bank to dishonor a letter of credit issued to the
plaintiff, could not proceed under the FSIA. The court held that the official qualified as an
“agency or instrumentality” because a majority interest in the bank was owned by the Philippine
government and the official was acting in his official capacity on behalf of the bank. This
interpretation was applied in the human rights context in Belhas v. Ya’Alon,17 in which the D.C.
Circuit held that the FSIA prohibited a suit against a former Israeli head of Army Intelligence for
authorizing a military assault against Lebanon that resulted in civilian injuries and death. The
court accepted an official statement from the government of Israel as proof establishing that the
defendant had been acting in his official capacity, which, in the court’s view, made him an
“agency and instrumentality” of Israel within the meaning of the FSIA, even though he was no
longer a government official. The court also held that the TVPA, which provided the cause of
action for the case, did not serve as a statutory exception to the FSIA by implication, although it
only applies to acts carried out under color of foreign law. The court further rejected the
13 Id. §1603(a).
14 Id. §1603(a)-(b).
15 This immunity, according to the courts, did not extend to officials in their individual capacity or acting beyond their
actual authority. See, e.g., Chuidian v. Philippine Nat’l Bank, 912 F.2d 1095 (9th Cir. 1990).
16 912 F.2d 1095 (9th Cir. 1990).
17 515 F.3d 1279 (D.C. Cir. 2008).
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contention that any act in violation of international human rights law necessarily exceeds an
official’s authority and voids immunity, as there is no exception enumerated in the FSIA for
violations of international human rights law.
In In re Terrorist Attacks on September 11, 2001,18 the Second Circuit held that defendant Saudi
princes could not be held liable for the consequences of providing material support to Al Qaeda
through financial funding that allegedly enabled the 9/11 terrorist attacks because each prince,
acting in his official capacity, qualified as an “agency or instrumentality” of the Saudi
government. The court also ruled that the Saudi High Commission for Relief to Bosnia and
Herzegovina, also accused of providing terrorist funding to Al Qaeda, was an “organ” of Saudi
Arabia created for a national purpose and actively supervised by Saudi Arabia. Having
determined that the FSIA governed immunity, the court turned to the exceptions to assess whether
any would permit the suit to go forward, but found that none applied. The defendants’ alleged
provision of support to Muslim charities that promoted and underwrote terrorism did not
constitute conduct in trade, traffic, or commerce to place it within the commercial activity
exception. Moreover, the FSIA tort exception for death and personal injury did not apply to the
matter, according to the court, because the terrorist act of providing material support to Al Qaeda
occurred overseas, and it also sounded more in the FSIA’s terrorism exception19 than the tort
exception.20 Saudi Arabia did not fall within this terrorism exception because it had never been
designated a state sponsor of terrorism.
Finally, the Second Circuit held in Matar v. Dichter21 that while a foreign official acting in his
official capacity is an agency or instrumentality of a foreign state, a former official is not
necessarily covered as such by the FSIA. The defendant in Matar, a former director of Israel’s
General Security Service, was nevertheless entitled to immunity under the common law because,
according to the court, the FSIA did not abrogate through silence the common law of sovereign
immunity as it applied to former foreign officials. Accordingly, the court followed the
recommendation of the State Department and declined jurisdiction to hear claims against the
former official arising from civilian injuries and deaths sustained during the Israeli Defense
Force’s aerial bombing of a Gaza apartment complex undertaken in a successful “targeted killing”
operation against a suspected terrorist leader.
A minority of circuits, however, held that foreign officials did not enjoy immunity under the
FSIA. The Seventh Circuit departed from the majority position in Enahoro v. Abubakar,22 holding
that victims who alleged torture and killings by a military junta were permitted to sue its former
general because the language of the FSIA does not explicitly include heads of state within its
definition of “state” or in any of the exceptions to the FSIA. The court did not agree that the FSIA
term “agency or instrumentality” was meant to encompass individual officials, highlighting the
fact that the terms “separate legal person” and “organ” fit a natural person, such as a foreign
official, quite awkwardly. After the Fourth Circuit joined the minority in Samantar v. Yousef,23 the
Supreme Court agreed to hear the challenge.
18 538 F.3d 71 (2nd Cir. 2008),
19 28 U.S.C. §1605A.
20 28 U.S.C. §1605(a)(5). Some courts have limited the tort exception to the FSIA to torts that occur entirely inside the
United States, for example, traffic accidents.
21 563 F.3d 9 (2nd Cir. 2009).
22 408 F.3d 877 (7th Cir. 2005).
23 552 F.3d 371 (4th Cir. 2009).
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Samantar v. Yousef
Case Background
Somalis living in the United States who were members of the Isaaq clan, a group of well-
educated and prosperous Somalis, alleged they had been subjected to systematic persecution
during the 1980s by the military regime then governing Somalia. They sued Mohamed Ali
Samantar, former defense minister and prime minister of Somalia in the 1980s, claiming (1)
Samantar exercised command and control over members of the Somali military forces who
tortured, killed, or arbitrarily detained them or members of their families; (2) Samantar knew or
should have known of the abuses perpetrated by his subordinates; and (3) Samantar aided and
abetted the commission of these abuses. The expatriates sought damages from Samantar pursuant
to the TVPA. Samantar fled Somalia in 1991 after the regime collapsed and took up residence in
Virginia. The United States has not recognized a government in Somalia since the fall of the
military regime despite the existence of a transitional government.
Samantar claimed immunity under the FSIA, arguing that the suit was based on actions he took in
his official capacity and that a suit against him was the equivalent of a suit against Somalia. The
district court agreed with Samantar, following the majority view that an official, even a former
one, could assert immunity under the FSIA because he was acting in his official capacity on
behalf of Somalia when he took the actions that were alleged to have caused the injuries. The
court rejected the argument that Samantar had exceeded the scope of his authority because he
allegedly violated international law. The Fourth Circuit reversed, following the minority view that
individual officials do not fall within the immunity of the FSIA’s “agency or instrumentality”
language. Even if Samantar fell within the FSIA’s “agency or instrumentality” language,
according to the appellate court, the FSIA would only cover present officials due to the statute’s
present-tense language describing “agency or instrumentality.” The case was returned to the
district court to determine whether another sort of immunity might apply.
Supreme Court Decision
Samantar appealed the Fourth Circuit’s decision to the Supreme Court, arguing the FSIA should
be read to provide him with immunity on the basis that (1) the examples outlined under the
definitions of “foreign state” and “agency or instrumentality” are non-exhaustive and merely
illustrative; (2) the FSIA should be construed to codify the common law of official immunity; and
(3) interpreting the FSIA otherwise undermines the comity and reciprocity the FSIA was meant to
engender. The Somali plaintiffs conversely argued that (1) the plain language of the statute clearly
does not cover officials; (2) the FSIA and international law exclude former officials from
immunity; (3) the TVPA amounts to an exception to immunity and the FSIA must be read in pari
materia with it; (4) torture and extra-judicial killing are not within the lawful scope of an
official’s authority; and (5) foreign policy decisions are for the judgment of the political branches.
The Supreme Court’s unanimous decision in Samantar resolved the circuit split in favor of the
minority position. In a detailed textual analysis largely tracking the government’s brief,24 Justice
24 See Brief for the United States as Amicus Curiae Supporting Affirmance at 17-18, Samantar v. Yousef, (U.S. 2010)
(No. 08-1555).
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Stevens found that while individual foreign officials could “literally” fit the definition of an
“agency or instrumentality,” the textual clues cut against such a broad construction.25 “Agency or
instrumentality,” according to the Court, was defined by the FSIA to mean an entity, which
ordinarily refers to “an organization, rather than an individual.”26 Other parts of the “agency or
instrumentality” definition, according to the Court, likewise did not resolve themselves
comfortably to the definition of a natural person, such as “separate legal person.” The word
“person” in that context, according to the Court, typically refers to the legal fiction that allows
corporations to hold legal personality separate from shareholders.27 The Court likewise described
the use of the term “organ” as “awkward” when used in connection with a natural person.28 From
this textual analysis, the Court concluded that Congress simply did “not evidence the intent to
include individual officials within the meaning of ‘agency or instrumentality.’”29
While Samantar argued that the definition of “agency or instrumentality” was an illustrative list
of the types of entities that could encompass a foreign state, the Supreme Court declined to
stretch the definition to also cover individuals, remarking that a word can “be known by the
company it keeps.”30 The Court pointed to other provisions of the FSIA where it would have
made sense for the statute to mention foreign officials or provide procedures more appropriate for
suits against individuals, had Congress intended for such officials to be included.31 The Court also
noted that the FSIA does expressly mention foreign officials in other contexts, showing
Congress’s ability to address such an issue if it chooses to do so and making the omission of
officials in the definition of “agency or instrumentality” all the more significant.32 As a result, the
Court concluded that reading “foreign official” into the definition of “agency or instrumentality”
would make the express mention of “foreign officials” superfluous in the provisions of the FSIA
where Congress expressly employed the term.33
The Court also cited the history and purpose of the FSIA as evidence that Congress did not intend
to encompass foreign officials within the definition of foreign state. The Court agreed with
Samantar that the FSIA was meant to codify the restrictive theory of sovereign immunity along
with the international and common law at the time of passage in 1978. The Court did not agree,
however, that the FSIA must be interpreted as having also codified the common law as it applied
to foreign officials.34 While agreeing that statutes are generally to be interpreted consistently with
25 Samantar, 130 S. Ct. at 2286. See contra In re Terrorist Attacks on Sept. 11, 2001, 538 F.3d 71 (2d Cir. 2008).
26 Id. (quoting Black’s Law Dictionary 612 (9th ed. 2009)).
27 Id. (citing First Nat. City Bank v. Banco Para el Comercio Exterior de Cuba, 462 U.S. 611 (1983)).
28 Id. at 2286-87.
29 Id. at 2287.
30 Id. (citing Russell Motor Car Co. v. United States, 261 U.S. 514, 519 (1923)).
31 Id. at 2288 (referencing service of process and remedial provisions of the FSIA, including 28 U.S.C. §§1608(a),
1608(a)(2), 1606, 1610)); Brief for the United States, supra footnote 24, at 23-24.
32 Samantar, 130 S. Ct. at 2288 (citing 28 U.S.C. §§1605(a)(5), 1605A(a)(1), 1605A(c)).
33 Id. at 2289.
34 This adopted the position of the U.S. government and former State Department Legal Adviser Mark Feldman that the
FSIA in no way was intended by the drafters to encompass foreign officials. See Chimene I. Keitner, Officially
Immune? A Response to Bradley and Goldsmith, YALE J. INT’L L. ONLINE, pp. 6-7 (Spring 2010). Justice Stevens also
discussed the legislative history surrounding the FSIA as further evidence that the FSIA was not intended to address
individual official immunity. See Samantar, 130 S. Ct. at 2289 & n.12. Justices Alito, Thomas, and Scalia, in their
concurring opinions, would have preferred to avoid any discussion of legislative history on the basis that the plain text
of the statute adequately resolved the issue. See id. at 2293 (Alito, J., concurring, and Thomas, J. concurring); id. at
2293-94 (Scalia, J., concurring).
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the common law, Justice Stevens explained that this canon of construction only applies when the
statute clearly covers an entire field formerly governed by the common law. While the FSIA was
clearly meant to replace the common law in relation to the immunity of foreign states, the Court
found no indication it was intended to cover common law official immunity.35 The Court did not
accept Samantar’s interpretation that the common law of state immunity and official immunity
were coextensive, finding the relationship between the two to be more complicated than that.36
The Court suggested instead that the common law is still in place to determine whether Samantar
is entitled to immunity, but left the question to be determined on remand. It noted one caveat to
immunity for foreign officials that does not apply to other forms of immunity: officials must not
only have acted in an official capacity, but the suit must also have “the effect of exercising
jurisdiction ... to enforce a rule of law against the state.”37 The Court also adopted the position of
the government highlighting the importance of the State Department’s pre-FSIA role in
recommending official immunity, noting that Congress gave no indication that it “saw as a
problem, or wanted to eliminate” that role. Such cases, however, appear to be few in number38
and some of them involved suits where the foreign state itself did not qualify for immunity or
court jurisdiction would not implicate enforcing law against the state.39 Justice Stevens also left
open the possibility that Samantar may be entitled to head of state immunity under the common
law.40
Samantar on Remand
On remand to the district court, the matter of immunity was resolved in conformity with the
statement of interest (SOI) filed by the State Department, which opposed immunity for Samantar
on the basis of the potential impact the grant of immunity would have on the foreign relations
interests of the United States.41 Samantar appealed again to the Fourth Circuit, arguing that the
district court should have engaged in a searching review of the matter rather than summarily
accepting the State Department’s determination. In his view, the State Department’s views should
be given utmost deference only when it recommends immunity, but not when opposing it. The
State Department took the position that its determination was absolutely binding on the court
regardless of whether it opposed or supported immunity.42
The appellate court essentially followed the plaintiffs’ interpretation, under which the State
Department views were to be given deference regardless of the recommendation so long as the
explanation was reasonable. The court reviewed the SOI, which explained that two factors drove
the State Department’s determination that Samantar should not enjoy immunity for his conduct.
35 Samantar, 130 S. Ct. at 2289. The Court declined to address its ruling in relation to international law because it was
not “deciding that the FSIA bars petitioner’s immunity but rather that the Act does not address the question.” Id. at
2289 & n.14.
36 Id. at 2289.
37 Samantar, 130 S. Ct. at 2289 (citing RESTATEMENT (SECOND) OF FOREIGN RELATIONS LAW OF THE UNITED STATES
§66(f) (1962)).
38 See id.; Brief for the United States, supra footnote 24, at 7.
39 See Samantar, 130 S. Ct. at 2289 (citing Greenspan v. Crosbie, 1976 U.S. Dist. LEXIS 12155 (S.D.N.Y. 1976)).
40 Id. n.15 (citing RESTATEMENT (SECOND) OF FOREIGN RELATIONS LAW OF THE UNITED STATES §66 (1962)).
41 Yousef v. Samantar, No. 1:04cv1360 (E.D. Va. Feb 11, 2012), aff’d, 699 F.3d 763 (4th Cir. 2012).
42 For an analysis of the government’s statement of interest, see David P. Stewart, Samantar and the Future of Foreign
Official Immunity, 15 LEWIS & CLARK L. REV. 633, 649-56 (2011).
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First, the State Department concluded that Samantar’s claim for immunity was undermined by the
fact that he is a former official of a state without a currently recognized government that could
request immunity on his behalf or take a position as to whether his activities were conducted in an
official capacity. Taking the view that the claim to sovereign immunity belongs to the sovereign
rather than the official, the department saw no reason to recommend immunity. Second, the
department viewed Samantar’s status as a permanent legal resident of the United States as
relevant to its immunity determination. According to the SOI, “U.S. residents like Samantar who
enjoy the protections of U.S. law ordinarily should be subject to the jurisdiction of our courts,
particularly when sued by U.S. residents or naturalized citizens such as two of the plaintiffs.”43
The court first considered whether Samantar should be entitled to head-of-state immunity, which
it noted could apply to high-level officials as well as the head of state.44 The court explained that
head-of-state immunity is a status-based immunity that depends on the recognition of the
executive branch, and accordingly, the State Department is entitled to absolute deference on
matters of status-based immunities. Head-of-state immunity, however, does not survive the tenure
of that status. Samantar was not entitled to immunity based on his former status, and under the
State Department SOI, likely would not have been entitled to status-based immunity even during
his tenure in office.
The court next addressed conduct-based immunity which lower-level public officials as well as
former high-level officials may be accorded for their official acts. The court explained that the
State Department’s views were to be taken into consideration for this type of immunity but did
not bind its decision:
Unlike head-of-state immunity and other status-based immunities, there is no equivalent
constitutional basis suggesting that the views of the Executive Branch control questions of
foreign official immunity. Such cases do not involve any act of recognition for which the
Executive Branch is constitutionally empowered; rather, they simply involve matters about
the scope of defendant’s official duties.
This is not to say, however, that the Executive Branch has no role to play in such suits. These
immunity decisions turn upon principles of customary international law and foreign policy,
areas in which the courts respect, but do not automatically follow, the views of the Executive
Branch.45
The court then adopted a position not advanced by the State Department to hold that activities in
violation of peremptory norms of international law (also known as jus cogens) can never be
conducted in an official capacity.46 Because the conduct at the heart of the lawsuit clearly violated
peremptory norms of international law, Samantar was not entitled to conduct-based immunity.
43 699 F.3d at 767.
44 Id at 769.
45 Id. at 773.
46 Id. at 775-77. But see Giraldo v. Drummond Co., Inc., 808 F. Supp. 2 d 247 (D.D.C. 2011) (no exception to foreign
official immunity for jus cogens violations) (citing Belhas v. Ya'alon, 515 F.3d 1279, 1287 (D.C.Cir.2008)).
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The Foreign Sovereign Immunities Act:
Post-Samantar
Following the Supreme Court decision in Samantar, individual foreign officials have limited
recourse to the FSIA to shield themselves from liability in U.S. courts. The Supreme Court
downplayed concerns expressed by the appellate courts that reading the FSIA to exclude cases
against foreign officials would permit plaintiffs to use artful pleading to select whether the FSIA
or common law would govern their suits, depending on which would be most advantageous.47
The Court also emphasized that other means for obtaining immunity remain available for foreign
officials. Foreign officials may have recourse to the common law of official immunity, especially
with the support of the State Department.48 Moreover, the Court outlined three areas in which a
suit against a foreign official may have to be dismissed regardless of the official’s entitlement to
immunity, specifically:
1. The absence of personal jurisdiction (which is automatic with respect to foreign
states so long as an exception to the FSIA applies, but must be obtained through
service of process against individuals, which effectively means the defendant
must be found within the United States).49
2. The need to join a foreign state as a necessary party pursuant to the Federal Rules
of Civil Procedure (such as a case in which the foreign state itself, or an agency
or instrumentality of a foreign state, is a required party because its interests are
directly implicated by the subject matter of the case and its participation may be
necessary to protect those interests, fully adjudicate a matter, or provide relief).50
3. The need to consider the foreign state as the real party in interest (such as a suit
brought against an individual in her official capacity, where damages or other
relief are sought against the state entity).51
If a reviewing court determines that the foreign state is a required party to a lawsuit or is the real
party in interest, the FSIA might require dismissal. The Supreme Court declined to view every
lawsuit against a foreign official as necessarily the equivalent of a suit against the foreign state
merely because it involves passing judgment on the conduct of a foreign official acting in its
behalf. Justice Stevens explained that lawsuits naming foreign officials are covered by the FSIA
47 Samantar, 130 S. Ct. at 2292.
48 Id. at 2291-92.
49 See, e.g., In re Terrorist Attacks on September 11, 2001, 718 F. Supp. 2d 456 (S.D.N.Y. 2010) (on remand from 2d
Cir. following Samantar, dismissing case against five foreign officials for lack of personal jurisdiction).
50 Samantar 130 S. Ct. at 2292 (citing FED. R. CIV. P. 19(a)(1)(B)).
51 If the state is the real party in interest, the suit would trigger the FSIA’s provisions because otherwise it would
“circumvent the state’s own immunity.” Cf FOWLER V. HARPER, FLEMING JAMES, JR., OSCAR S. GRAY, 5 THE LAW OF
TORTS §29.9 (2nd ed. 1986) (liability of government officials in the United States). An example of circumstances in
which the state is the real party in interest would be, for example, a lawsuit to compel an official to refund the purchase
price under a contract or gain possession of property held by the officer on the government’s behalf. See id. (citing
numerous cases). Actions in tort to recover damages form an officer’s own pocket are seldom considered to be
tantamount to a suit against the state. Id.
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only if they are “in all other respects other than name, to be treated as a suit against the entity. It is
not a suit against the official personally, for the real party in interest is the entity.”52
Samantar had advocated an interpretation of the FSIA that would cover officials for all actions
taken in an official capacity, which would be determined based upon (1) a notification by the
foreign state53 or (2) elements of conduct demonstrating its inherently sovereign nature. The
Court rejected Samantar’s analysis, however, finding that the relevant issue is whether the official
is being sued in his or her official capacity, not whether the conduct at issue in the lawsuit was
undertaken in an official capacity.54 The Court distinguished official capacity suits, which are in
“all respects other than name to be treated as a suit against the [state] entity,” from personal
capacity suits, which look to impose individual liability upon a government officer for actions
taken under color of law.55
Thus, if a lawsuit is filed against an official in his or her official capacity, the suit will be
considered as one against the state itself,56 in which case the FSIA applies.57 If a suit is brought
against an official in his or her personal capacity, the common law of foreign sovereign immunity
applies, in which case the relevance of the official nature of the conduct may nevertheless be
relevant to determining immunity. The Court gave little guidance regarding the application of
common law immunity, leaving open the possibility that lower courts may analyze the issue
based upon the traditional bases of an agency relationship. Immunity may turn on whether the
state takes responsibility for the actions of its agent (the foreign official), just as it did in cases
decided by interpreting the FSIA through the lens of the common law.58 On the other hand, state
responsibility on the part of a government and individual responsibility on the part of the
government official involved are not necessarily mutually exclusive.59
As the Samantar Court noted, official immunity and state immunity will not always be
coextensive.60 There may be lawsuits in which the state is entitled to immunity over a matter, but
a foreign official may still be held liable for an injury caused by actions undertaken without or in
excess of authority, meaning no immunity is available unless the official is entitled to status-based
52 Samantar, 130 S. Ct. at 2292 (citing Kentucky v. Graham, 473 U.S. 159 (1985)).
53 Israel has undertaken this notification with their officials, which the courts have held as persuasive in assessing
whether their foreign officials have acted in their official capacity for purposes of immunity. See, e.g., Belhas v.
Ya’Alon, 515 F.3d 1279 (D.C. Cir. 2008). The transitional Somali government did assert that Samantar was acting in
his official capacity when undertaking the acts against the Isaaq clan. See Brief for the United States, supra footnote 24,
at 5. The Supreme Court did not address Somalia’s assertion.
54 Samantar, 130 S. Ct. at 2292 (citing Kentucky v. Graham, 473 U.S. 159, 166 (1985)).
55 Id. (noting that the lawsuit is against “petitioner in his personal capacity and seek[s] damages from his own pockets,”
and therefore “is properly governed by the common law because it is not a claim against a foreign state as the [FSIA]
defines that term.”).
56 As stated, an example would be seeking damages from the treasury of the state rather than the individual personally.
See id.
57 Id. at 2290-91 (“We do not doubt that in some circumstances the immunity of the foreign state extends to an
individual for acts taken in his official capacity.”); Brief for the United States, supra footnote 24, at 12-13.
58 See, e.g., Belhas v. Ya’Alon, 515 F.3d 1279 (D.C. Cir. 2008) (statement by foreign government viewed as dispositive
as to whether former general acted in official capacity); Matar v. Dichter, 563 F.3d 9 (2d Cir. 2009) (noting executive
branch’s recognition of the Israeli government’s assertion that its former official acted in furtherance of official policies
of Israel); In re Estate of Marcos Human Rights Litig., 25 F.3d 1467 (9th Cir. 1994) (finding no immunity, relying in
part on Philippine government’s representation that former president’s acts exceeded his authority as president).
59 See Chimène I. Keitner, Foreign Official Immunity After Samantar, 44 VAND. J. TRANSNAT'L L. 837, 844 (2011).
60 Samantar, 130 S. Ct. at 2292 (“And not every suit can successfully be pleaded against an individual official alone.”).
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immunity (such as diplomatic or head-of-state immunity).61 There may also be cases in which the
state is not entitled to immunity because an exception to the FSIA applies, but individual officials
are nevertheless entitled to immunity or cannot be held personally liable for the conduct at
issue.62
To the extent the FSIA codifies common law foreign sovereign immunity, as in the case of
lawsuits based on commercial activity under the restrictive theory,63 the recognition of a separate
theory of immunity for foreign officials may not yield results significantly different from those
cases in which courts applied the FSIA directly. The same common law considerations some
courts previously applied to determine whether a foreign official is an “agency or
instrumentality” under the FSIA would likely lead to similar results where the common law is
applied directly.64 However, where Congress enacts exceptions to the FSIA that depart from the
common law, outcomes may vary from cases decided under the pre-Samantar approach. For
example, the FSIA terrorism exception permits suits for damages against foreign states “for
personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft
sabotage, hostage taking, or the provision of material support or resources … for such an act,”65
but only if the state is designated by the State Department as a state sponsor of terrorism.66 Under
the common law, immunity determinations for foreign officials have never depended on their
state’s designation as a sponsor of terrorism.67
Immunity determinations under the common law, however, will likely be informed by “principles
articulated by the Executive Branch.”68 Future cases involving foreign official defendants may
largely depend upon the State Department and the practices it develops for assessing foreign
official immunity. Executive branch intervention in lawsuits against officials of U.S. allies may
mitigate some of the concerns expressed by amici curiae that permitting civil suits against foreign
officials will result in a flood of unfounded and politically motivated lawsuits against officials of
certain states, permitting plaintiffs to effectively circumvent the sovereign immunity of those
61 See Brief for the United States, supra footnote 24, at 13, 22.
62 See id. at 22 (“When a suit falls within one of the exceptions to foreign sovereign immunity for contractual or other
commercial activities or expropriations ... and a state, but not an individual, is appropriately held liable for the
potentially huge monetary sums at stake.”) (citing Greenspan, 1976 U.S. Dist. LEXIS, at *2) (Executive suggestion that
officials were immune from fraud suit although state was subject to suit under commercial activities exception).
63 28 U.S.C. §1605(a)(2) (2006).
64 See, e.g., Chuidian v. Philippine Nat’l Bank, 912 F.2d 1095 (9th Cir. 1990) (holding that the common law was
incorporated into the FSIA).
65 28 U.S.C. §1605A(a)(1).
66 Id. §1605A(a)(2)(A)(i)(I). Causes of action are also allowed against an “official, employee, and agents or agent of
that [foreign] state,” although the provision does not address the immunity of such officials.
67 For a discussion of how the terrorism exception differs from other exceptions under the FSIA, see VED P. NANDA
AND DAVID K. PANSIUS, 1 LITIGATION OF INTERNATIONAL DISPUTES IN U.S. COURTS §3:36 (2009) (hereinafter LOID).
68 Brief of the United States, supra footnote 24, at 6.
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states.69 On the other hand, State Department involvement in terrorism cases against foreign
officials in the past has generated friction with Congress.70
Options for Official Immunity Following Samantar
While the Supreme Court’s decision in Samantar will likely have little effect on status-based
immunities based on custom or treaty, it may have complicated the immunity analysis courts must
conduct in cases where the defendant is an individual rather than an entity and is not entitled to
head-of-state or diplomatic immunity. Now that the courts can rely on the FSIA only in a limited
manner to determine whether to exercise jurisdiction over such lawsuits,71 greater emphasis is
required on the common law, an increased reliance on immunity determinations from the State
Department may develop, or Congress could step in to create a statutory framework. It has been
suggested that FSIA case law will remain relevant to common law assessments, but that common
law immunity may result in broader rather than restricted opportunities for foreign officials to
enjoy the benefits of immunity in U.S. courts.72
Common Law Mechanism Aided by a Determination of the
State Department on a Case-by-Case Basis
Common law immunity for officials has taken on two basic forms: (1) absolute immunity based
upon status, as for heads of state, diplomats, and foreign ministers,73 and (2) function-based
immunity for the acts of foreign officials done in their official capacities.74 In cases of status-
based immunity, the State Department’s suggestions of immunity will likely remain controlling,75
even where jus cogens violations are alleged to have occurred.76 While the State Department has
69 See, e.g., Brief of the Zionist Organization of America, The American Association of Jewish Lawyers and Jurists,
Agudath Israel of America, and the Union of Orthodox Jewish Congregations of America, Amici Curiae In Support Of
Petitioner, Samantar v. Yousef, (U.S. 2010) (No. 08-1555), available at http://www.scotusblog.com/wp-content/
uploads/2009/12/Yousuf-Amicus-Zionist-Organization.pdf; Brief of The Kingdom of Saudi Arabia as Amicus Curiae
in Support of Petitioner, Samantar v. Yousef, (U.S. 2010) (No. 08-1555), available at http://www.scotusblog.com/wp-
content/uploads/2009/12/Yousuf-Amicus-Saudi-Arabia.pdf.
70 See, e.g., CRS Report RL31258, Suits Against Terrorist States by Victims of Terrorism, by Jennifer K. Elsea.
71 The FSIA continues to apply where foreign officials are sued but the foreign state is the real party in interest. See
Gomes v. Angola Press Agency, Slip Copy, 2012 WL 3637453, at *18-19 (E.D.N.Y. Aug. 22, 2012 ); Rahim v. Sec'y,
Establishment Div., Gov't of People’s Repub. of Bangladesh, 2011 WL 3625580, at *2 (E.D.N.Y. Aug.12, 2011).
72See 1 LOID, supra footnote 67, §4:6.
73 See BLACK’S LAW DICTIONARY, 817-18 (9th ed. 2009).
74 Id.
75 See, e.g., Tawfik v. Al-Sabah Slip Op, 2012 WL 3542209 (S.D.N.Y. Aug. 16, 2012) (Emir of Kuwait granted
immunity per suggestion of State Department even against claims of torture); Habyarimana v. Kagame, 821 F. Supp.
2d 1244, 1264 (W.D. Okla. 2011) (“Where the United States’ Executive Branch has concluded that a foreign head of
state is immune from suit, and where it has urged the Court to take recognition of that fact and to dismiss the suit
pending against said head of state, the Court is bound to do so”.), aff’d, . 696 F.3d 1029 (10th Cir. 2012); Devi v.
Rajapaksa, Slip Copy, 2012 WL 3866495 at *3 (S.D.N.Y.) (citing academic study of 26 cases where the executive
branch recommended immunity, finding no case where the court deviated from recommendation).
76 See Manoharan v. Rajapaksa, 845 F. Supp. 2d 260, 263 (D.D.C. 2012) (courts must defer to the State Department’s
Suggestion of Immunity even in cases involving alleged violations of jus cogens norms) (citing Ye v. Zemin, 383 F.3d
620, 625–27 (7th Cir.2004).
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argued that its views should control also in cases involving functional immunity,77 the only
appellate court to have addressed the issue so far has rejected that view in favor of according the
State Department views considerable weight that nevertheless does not amount to absolute
deference.78
Functional Immunity Under the Common Law
Function-based (or conduct-based) immunity is the type of immunity called into question by
Samantar. Some take the position that the common law gives officials the same immunity that
foreign governments themselves have, but only for official acts within the scope of the
individual’s duties. Under this view, the analysis would turn on an assessment of the nature of
conduct, much as it did when the FSIA was thought to be controlling. It seems clear that “official
capacity” has been a common theme in assessments under both the common law and the FSIA.
However, while the common law focused on purpose and function of the activities in question,
FSIA analysis focused more on the nature of the specific conduct.79
Others believe that officials are entitled to immunity only if a lawsuit against the individual
would impose an obligation on the foreign government. While Justice Stevens wrote for the
Samantar Court, “[w]e do not doubt that in some circumstances the immunity of the foreign state
extends to an individual for acts taken in his official capacity,”80 the decision does little to clarify
which circumstances will bring about that result.
Those who argue for immunity with respect to virtually all authorized official conduct cite to
judicial precedent from the early 1700s through the end of the 19th century. Of particular import is
the case of Underhill v. Hernandez, which states “because the acts of the official representatives
of the state are those of the state itself, when exercised within the scope of their delegated powers,
courts and publicists have recognized the immunity of public agents from suits brought in foreign
tribunals for acts done within their own states in the exercise of the sovereignty thereof.”81 The
majority of courts have treated this principle as dispositive for determinations of immunity. The
analysis, according to experts, is the same whether the source of common law official immunity
is international law or federal common law, because international law is generally in alignment
with the position of U.S. law in this area.82 Under this view, the scope of immunity is not affected
77 See Brief of the United States as Amicus Curiae Supporting Appellees at 19, Yousef v. Samantar, 699 F.3d 763 (4th
Cir. 2012) ( No 11-1479).
78 See Yousef v. Samantar, 699 F.3d 763 (4th Cir. 2012).
79 1 LOID, supra footnote 67, §4:6.
80 Samantar, 130 S. Ct. at 2290-91.
81 Underhill v. Hernandez, 65 F. 577, 579 (2d Cir. 1895), aff’d 168 U.S. 250 (1897). See also 2 JOHN BASSET MOORE, A
DIGEST OF INTERNATIONAL LAW §179 (1906) (collecting early authorities from the 18th and 19th centuries); Actions
Against Foreigners, 1 Op. Att’y Gen. 81, 81 (1797) (“A person acting under a commission from the sovereign of a
foreign nation is not amenable for what he does in pursuance of his commission, to any judiciary tribunal in the United
States.”).
82 See UN Convention on Jurisdictional Immunities of States and Their Property, art. 2(1)(b)(iv), G.A. Res. 59/38, U.N.
Doc. A/RES/59/38/Annex (Dec. 16, 2004) (“State means: representatives of the State acting in that capacity”); HAZEL
FOX, THE LAW OF STATE IMMUNITY 455 (2nd ed. 2008) (“any act performed by the individual as an act of the State
enjoys the immunity which the State enjoys.”) This law has been followed by courts around the world, according to
commentators, and the FSIA is said to have codified this international law at the time of passage. See e.g., Permanent
Mission of India to the UN v. City of New York, 551 U.S. 193, 199 (2007); Jones v. Ministry of the Interior of the
Kingdom of Saudi Arabia (2006), UKHL 26 (2007), 1 A.C. 270, at para. 10 (United Kingdom); Jaffe v. Miller (1993),
13 O.R. 3d 745, 759 (Canada).
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by the status of the defendant as a current or former official, because so long as the act was an
official one, the lawsuit effectively calls into question the conduct of the state.83 Some view this
to be a principle of customary international law as indicated by practice of foreign courts, and
predict that it will influence the development of federal common law as well as State Department
recommendations.84
Those who argue that official immunity turns on whether the lawsuit actually imposes an
obligation on the foreign government disagree that federal common law provides any such clear-
cut test. They identify a number of early cases where the Department of State or courts have
denied that a determination of individual official immunity was to be based solely on the nature
of the official’s actions.85 Proponents of this position do not interpret international case law as
demonstrating that foreign officials are always entitled to immunity for their official acts. They
note that many of the cases cited to advance that theory involve foreign statutes that define the
term “state” very broadly. Some foreign laws expressly define “state” to encompass individuals,
and some also cover lawsuits based upon specialized circumstances, such as a request for
damages from foreign state assets.86 Under their view, comity and convenience also play a role.
Immunity may be withdrawn at the will of the sovereign and is not always governed by any
generally accepted common law.87
Deference to the Executive Branch
The Samantar Court seems to have agreed with the government that immunity at common law is
informed by “principles articulated by the Executive Branch”88 and must be assessed as with
deference to the executive branch in foreign relations matters.89 The Court did not say, however,
that State Department recommendations were binding on the courts.90
83 Curtis A. Bradley & Jack L. Goldsmith, Foreign Sovereign Immunity, Individual Officials, and Human Rights
Litigation, 13 GREEN BAG 2D 9, 17-18 (Autumn 2009). In their pre-Samantar analysis, the authors explicitly rejected
the necessity of recourse to the FSIA’s present tense language in the “agency and instrumentality” definition because of
the common law backdrop. See id. (citing Dole Food Company v. Patrickson, 538 U.S. 468 (2003); id. at 18 (citing
Draft Articles on Jurisdictional Immunities of States and Their Property, with Commentaries 18 (1991)); Belhas v.
Ya’alon, 515 F.3d 1279, 1284-86 (D.C. Cir. 2008)).
84 See Curtis A. Bradley and Laurence R. Helfer, International Law and the U.S. Common Law of Foreign Official
Immunity, 2010 SUP. CT. REV. 213.
85 Bradley and Goldsmith, supra footnote 83, at 6-7, 11-12 (citing early opinions from Attorney Generals eschewing
official immunity even though the acts were official in nature, such as a military attack on a steamboat, and maintaining
that if there had been customary international common law that official actions created official immunity it would have
been stated in these decisions).
86 Id. at 9-10, 12-13 (citing numerous cases and noting that the UN Convention on Jurisdictional Immunities of States
and Their Property has not been signed by the United States nor has entered into force). See also Brief of Professors of
Public International Law and Comparative Law as Amici Curiae, In Support of Respondents at 19-28, Samantar v.
Yousef (U.S. 2010) (No. 08-1555) (citing numerous cases).
87 See William S. Dodge, Samantar Insta-Symposium: What Samantar Doesn’t Decide, Opinio Juris.org (citing
Schooner Exchange v. McFaddon, 11 U.S. 116, 136-37, 146 (1812); The Santissima Trinidad, 20 U.S. 283 , 353
(1822); Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480 (1983)).
88 Brief for the United States, supra footnote 24, at 6.
89 Id. at 7-8.
90For an overview of the State Department role in immunity determinations, see Ingrid Wuerth, Foreign Official
Immunity Determinations in U.S. Courts: The Case Against the State Department, 51 VA. J. INT'L L. 915 (2011); see
also Chimène I. Keitner, The Forgotten History of Foreign Official Immunity, 87 N.Y.U. L. REV. 704 (2012) (overview
of early sovereign immunity cases).
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Part of the impetus behind enactment of the FSIA was a desire to lessen the role of the State
Department in court cases involving foreign sovereigns.91 The State Department’s susceptibility to
diplomatic and political pressures to recommend immunity in a given action resulted in
inconsistent treatment of foreign sovereigns, and the practice was becoming burdensome on the
State Department. The State Department supported the FSIA and did not object to losing its role
in assessing sovereign immunity claims against foreign states, including their agencies and
instrumentalities. However, the State Department did not entirely retreat from making
recommendations,92 and it continued to claim a role in determining immunity for foreign
officials.93 The role at the time entailed recommendations to the Department of Justice as to
whether to grant official immunity in a court proceeding. This recommendation, while not
dispositive, was often treated with deference by the Department of Justice and the courts.94 In
recent cases, the State Department has taken the position that its recommendations of immunity
are controlling.95
The Justice Department and the State Department suggested in Samantar that the State
Department should continue its role in recommending immunity for foreign officials in light of
the threat of reciprocal international legal action and the sensitive diplomatic as well as foreign
policy judgments that go into immunity determinations.96 It remains to be seen whether this role
will be similar in scope to the State Department’s role before the enactment of the FSIA with
respect to foreign officials. In the few prior cases in which the State Department made
recommendations to the courts, deference was most often extended in the context of diplomatic or
head of state immunity (status based immunities, rather than conduct based immunities).97 The
modern emergence of human rights lawsuits may present legal and political issues unlike cases in
which the State Department involved itself prior to passage of the FSIA. In any event, the pre-
FSIA framework did not constitute absolute deference to the executive; there were notable
instances where the courts did not defer to the executive.98
Some argue that the greater the dependence on and deference to the State Department, in any case
in which the defendant is a foreign official, the greater the likelihood courts will grind to a halt as
they await an immunity determination from the executive branch.99 Another concern is that
reliance on the State Department for suggestions of immunity will in practice result in
91 See Samantar, 130 S. Ct. at 2291 & n.18 (“It is our [the State Department’s]judgment ... that the advantages of
having a judicial determination greatly outweigh the advantage of being able to intervene in a lawsuit.”).
92 Prior to the passage of the FSIA the State Department conducted an internal review for all petitions for suggestions
of sovereign and official immunity. These rulings were published, similar to the decisions of courts of general
jurisdiction. See, e.g., DIGEST OF U.S. PRACTICE IN INTERNATIONAL LAW (1977).
93 See DIGEST OF U.S. PRACTICE IN INTERNATIONAL LAW 1020 (1977) (“These decisions ... may be of some future
significance, because the Foreign Sovereign Immunities Act does not deal with the immunity of individual officials, but
only that of the foreign states and their political subdivisions, agencies and instrumentalities.”).
94 See Keitner, supra footnote 34, at n. 15; Bradley and Goldsmith, supra footnote 83, at 11.
95 See Brief of the United States as Amicus Curiae Supporting Appellees at 19, Yousef v. Samantar, 699 F.3d 763 (4th
Cir. 2012) ( No 11-1479).
96 See Brief for the United States, supra footnote 24, at 27-28. The government declined to address whether Samantar
would be entitled to immunity.
97 See Keitner, supra, footnote 90, at 758-59 (“There does not appear to be any long-standing practice of judicial
deference to executive determinations of individual conduct-based immunity.”).
98 See, e.g., Berizzi Bros. Co. v. The Pesaro, 271 U.S. 562 (1926) (foreign government-owned merchant vessel not
liable to suit in rem); RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES §464.
99 See Keitner, supra footnote 34.
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inconsistent outcomes, as was sometimes the case with respect to lawsuits against foreign states
prior to the FSIA. Moreover, some predict that an increased role for the State Department will
result in its constant buffeting by competing demands from foreign governments whose officials
are sued and from human rights advocates seeking accountability for human rights abusers on
behalf of victims. Increased lobbying could also be expected from others with interests in such
lawsuits, including commercial and banking interests who have a stake or perceive their assets to
be at risk. Finally, one former U.S. official argues that “the administration must also consider the
reciprocal impact on current and former U.S. officials, if it opens the door to lawsuits against
foreign officials in the United States.”100 This reciprocal impact may be of particular concern to
the Department of Defense due to the controversial counterterrorism operations it engages in
around the world.101
Official Immunity by Statute
Congress could regularize determinations of foreign officials’ immunity by amending the FSIA to
account for them or by enacting a wholly new statute to govern immunity for foreign officials.
The FSIA could be amended by altering the definition of “agency or instrumentality” to clearly
cover an individual official. The definition of “state” could also be broadened explicitly to cover
all foreign officials, or perhaps foreign officials in certain instances, as other legislatures around
the world have done.102
Congress could also look at amending statutes that provide specific causes of action, such as the
TVPA, expressly to address immunity. The TVPA, enacted in 1991, is the primary means for
victims of human rights abuses to seek remedy in U.S. courts,103 but some have expressed
concern that it will become a dead letter if defendants are entitled to assert common law
immunity in addition to other forms of immunity.104
Another area in which sovereign immunity of individual officials has been prevalent is in lawsuits
related to state-sponsored terrorist acts. Congress enacted an exception to the FSIA that
specifically covers officials as well as states in order to abrogate their immunity and create a
cause of action in terrorism cases.105
100 John B. Bellinger III, Ruling Burdens State Department 47, NAT’L L.J. (June 28, 2010). To date in most instances
the State Department has asserted immunity on behalf of most foreign government officials sued for alleged human
rights violations, including Israeli, Russian, Chinese, and Saudi Arabian officials for controversial actions in Gaza,
Chechnya, China, and the September 11th terrorist attacks, based on the theory that current and former officials are
entitled to immunity from lawsuits under customary international law for their official acts. Id.
101 Bellinger, supra footnote 100.
102 See Brief of Professors of Public International Law, supra footnote 86, at 20-28 (listing of broader sovereign
immunity statutes from around the world).
103 Beth Stephens, Samantar Insta-Symposium: The View from the Counsel’s Table, Opinio Juris.org,
http://opiniojuris.org/2010/06/03/samantar-insta-symposium-the-view-from-the-counsels-table/ (last visited July 2,
2010).
104 Efforts to persuade courts that the TVPA implicitly abrogates status-based immunity or immunity under the FSIA
have consistently failed. See, e.g., Matar v. Dichter, 500 F. Supp. 2d 284 (S.D.N.Y. 2007), aff’d 563 F.3d 9 (2d Cir.
2009) (immunity under FSIA or common law sovereign immunity); Tachiona v. Mugabe, 169 F. Supp. 2d 259
(S.D.N.Y. 2001), aff’d in part 386 F.3d 205 (2d Cir. 2004), cert. denied 547 U.S. 1143 (2006) (head-of-state and
diplomatic immunity).
105 28 U.S.C. §1605A, known as the terrorism exception to the FSIA, provides for jurisdiction to hear claims against a
foreign state that is or was a state sponsor of terrorism as well as any “official, employee, or agent of that foreign state
(continued...)
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Proposed Amendments to the FSIA: The Justice
Against Sponsors of Terrorism Act
No legislation has yet been introduced in response to the Samantar decision; however, legislation
to amend the FSIA was introduced in the 112th Congress that would revoke immunity for foreign
officials from lawsuits under the Anti-Terrorism Act.106 S. 1894, the Justice Against Sponsors of
Terrorism Act, also aims to reduce some of the burdens faced by victims of state-sponsored
terrorism in the United States in bringing lawsuits against foreign governments or foreign
officials. The bill, which was ordered to be reported favorably out of the Senate Judiciary
Committee in September 2012, would amend the non-commercial tort exception to the Foreign
Sovereign Immunities Act (FSIA) in 28 U.S.C. Section 1605(a)(5) expressly to include “any
statutory or common law tort claim arising out of an act of extrajudicial killing, aircraft sabotage,
hostage taking, terrorism, or the provision of material support or resources for such an act.... ”
This provision appears to be a reaction to a decision by the U.S. Court of Appeals for the Second
Circuit in In re Terrorist Attacks of September 11, 2011,107 in which the court held that the tort
exception to the FSIA does not cover terrorist attacks in the United States unless it was conducted
by a state designated as a sponsor of terrorism under the appropriate laws.108 Although another
panel of the Second Circuit effectively overruled that aspect of the decision,109 it is possible that
other circuit courts could reach the same conclusion.
The bill would not alter the tort exception’s requirement that the tort be committed within the
United States, but it would clarify that it is the place where the injury occurs that matters,
regardless of where the underlying tortious act or omission was committed. The bill would also
permit contribution and indemnity actions against foreign states, so that private defendants (such
as a bank or charity accused of financing a terrorist act) could bring foreign governments into a
lawsuit in order to spread the liability. The bill is meant to clarify that foreign governments who
commit or sponsor acts of terrorism in the United States are subject to liability under the tort
exception to the FSIA the same as they would be for other tortious conduct by their officials or
employees, regardless of whether the State Department has designated them as state sponsors of
terrorism.
The revised tort exception would be more limited than the terrorism exception (28 U.S.C.
§1605A) in one respect. The bill would change “personal injury” to “physical injury” and clarify
that claims for emotional distress or other claims derived from injuries to another person that
occur outside the United States are not part of the exception. (It seems that the amended phrase
“physical injury” would also exclude claims derived from injuries suffered by others within the
United States.) While a substantial number of claimants involved in lawsuits against Iran and
(...continued)
while acting within the scope of his or her office, employment, or agency,” for personal injury or death caused by
certain terrorist acts to U.S. nationals.
106 18 U.S.C. §2337 (lawsuits under the Anti-Terrorism Act may not be brought against U.S. or foreign government
officials).
107 538 F.3d 71 (2d Cir. 2008).
108 For an overview of the case, see CRS Report RL34726, In Re Terrorist Attacks on September 11, 2001: Dismissals
of Claims Against Saudi Defendants Under the Foreign Sovereign Immunities Act (FSIA).
109 Doe v. Bin Laden, 663 F. 3d 64 (2d Cir. 2011).
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other designated countries involve indirect claims, for example, for solatium or emotional
distress, S. 1894 would apparently limit claims to victims who are present during a terrorist attack
and who suffer a direct injury, the estates of those killed, and owners of property damaged by the
attack.
Another section of the bill would eliminate the Anti-Terrorism Act (ATA) provision exempting
foreign officials and governments from the ATA’s civil remedy provision,110 while keeping the
exemption intact for U.S. officials, agencies, or employees acting in an official capacity. The
elimination of this exemption could effectively extend the terrorism exception to the FSIA
beyond the four currently designated terrorism-sponsoring countries111 by providing a new cause
of action independent from the one found in 22 U.S.C. Section 1605A(c), even for attacks that
occur overseas. In addition, the bill’s amendment to the ATA cause of action appears intended to
permit the refiling of ATA claims that were previously dismissed for failure to satisfy the
requirement for an exception under the FSIA, disallowing a defense based on the law of
preclusion. A provision to permit the filing of cases where the dispute has already been litigated,
however, could run afoul of the Supreme Court decision in Plaut v. Sprendthrift Farms,112 in
which the Court held that Congress had violated separation of powers principles by requiring
courts to reopen settled cases. On the other hand, previous terrorism cases against foreign states
have been revived on Congress’s enactment of new laws.113
The Senate Judiciary Committee, Subcommittee on Crimes and Drugs of the 111th Congress, held
hearings on a similar measure, S. 2930 (also titled the Justice Against Sponsors of Terrorism Act).
The proposed amendments to the FSIA in that bill received mixed reaction from witnesses at the
hearings. Of particular concern was whether:
1. Such a provision could undermine the FSIA’s codification of important long-
standing principles of international law that protect foreign governments and the
United States from lawsuits in each other’s courts based on government
activities.
2. Such a provision could expose U.S. allies such as Israel to lawsuits in U.S.
courts.
3. Foreign governments could respond in kind and remove immunity provisions that
currently protect U.S. officials from lawsuits abroad.
4. Courts could find themselves entangled in the assessment of foreign sovereign
immunity, and with it foreign policy matters, which are viewed as best left to the
State Department.114
110 18 U.S.C. §§2333, 2337 (permitting recovery of treble damages for terrorist acts, but exempting U.S. and foreign
officials).
111 Iran, Syria, Sudan, and Cuba are currently designated as state sponsors of terrorism. For history of lawsuits against
designated states, see CRS Report RL31258, Suits Against Terrorist States by Victims of Terrorism, by Jennifer K.
Elsea.
112 514 U.S. 211 (1995).
113 See Rein v. Socialist People’s Libyan Arab Jamahiriya, 162 F.3d 748 (2nd Cir. 1998), cert. denied, 527 U.S. 1003
(1999). It appears that this case involved plaintiffs whose case was under appeal when Congress passed the anti-
terrorism exception to the FSIA in 1996, P.L. 104-132, Title II, §221 (April 23, 1996); 110 Stat. 1241; formerly
codified at 28 U.S.C. §1605(a)(7). .
114 Evaluating the Justice Against Sponsors of Terrorism Act, S. 2930: Hearing of the Crime and Drugs Subcommittee
of The Senate Judiciary Committee, 111th Cong. (2010) (statement of John B. Bellinger, III former Legal Adviser to the
(continued...)
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Others, however, supported the bill as a means to:
1. provide appropriate redress for victims of terrorism,
2. limit the role of the State Department in immunity determinations so that it would
not be subject to excessive political pressures, and
3. clarify an error in prior interpretation of the FSIA tort exception that excludes
terrorist acts that occur within the United States from its purview.115
Conclusion
The Samantar decision clarified that the FSIA does not govern lawsuits against foreign officials,
current or former. However, the Supreme Court emphasized the narrowness of its ruling, noting
that it did not decide that foreign officials are not entitled to immunity at all. Rather, specific
cases involving foreign officials as defendants will continue to follow ordinary rules governing
civil procedure and jurisdiction in courts to determine whether a particular suit can go forward. If
a court determines that a particular suit, although it names a specific official as the adversarial
party, is really a lawsuit against a foreign state, then the FSIA will govern the suit. Lawsuits
against individual officials may not be viewed as worthwhile considering that a judgment against
an official need not be paid from the coffers of the state. Other remedial forms of relief may be
unavailable or ineffective if exercised only against specific officials. In cases that do proceed
against foreign officials, the defendants may be entitled to immunity under the common law or
may be able to assert other defenses to jurisdiction or liability that would not be available to a
defendant state.
For these reasons, the Samantar Court appeared to be relatively unconcerned with the predictions
by some lower courts and amicus curiae that reading the FSIA to cover foreign states—but not
officials of foreign states—would lead to the effective gutting of the FSIA. To the extent that the
common law framework of foreign sovereign immunity envisions an increased role for the State
Department, possible harmful effects on U.S. foreign policy may be mitigated. On the other hand,
Congress and the executive branch have not always seen eye-to-eye regarding lawsuits against
foreign states or their officials.116 The Samantar decision does not seem to question Congress’s
authority to enact a new statutory framework to govern official immunity in the event that any of
the negative predictions, or perhaps unpredictable outcomes, come to pass.
(...continued)
Department of State and National Security Council).
115 Id. (statement of the Hon. Abraham D. Sofaer, former Legal Adviser to the State Department, and former federal
judge in the Southern District of New York); id. (statement of Richard D. Klingler, former General Counsel and Legal
Adviser to the National Security Council staff). These witnesses, however, did not call for the complete removal of the
role of the executive in immunity recommendations to the Court, instead stating that such recommendations may aid in
illuminating the foreign policy effects of a court’s immunity determination. See id. (statement of Mr. Klingler).
116 See, e.g., CRS Report RL31258, Suits Against Terrorist States by Victims of Terrorism, by Jennifer K. Elsea.
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Author Contact Information
Jennifer K. Elsea
Legislative Attorney
jelsea@crs.loc.gov, 7-5466
Acknowledgments
Jordan E. Segall, a Research Assistant in the American Law Division of CRS, assisted in the preparation of
this report.
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