Scott A. Gilmore · April 2012
80 GEO. WASH. L. REV. 918 (2012)
In Samantar v. Yousuf, the U.S. Supreme Court held that the Foreign Sovereign Immunities Act does not immunize foreign officials. By excluding individuals, the Act preserved the common law doctrine of foreign official immunity and the Executive’s traditional power to “suggest” immunity. Yet the Court did not address a normative conflict lurking behind the Samantar decision. Human rights cases against foreign officials, brought under the Torture Victim Protection Act and the Alien Tort Statute, have proliferated in recent decades. These cases are on a collision course with the revived doctrine of foreign official immunity. How should the conflict between human rights accountability and individual immunity be resolved? This Note proposes that courts approach foreign official immunity as a conflict of laws problem: courts must determine whether a foreign state’s authorization of crimes such as torture is compatible with U.S. and international law, which prohibit such crimes. In resolving this conflict, courts should adopt a presumption against immunity for human rights violations. This presumption could only be rebutted by an executive immunity suggestion, which provides a conclusive showing that countervailing foreign policy interests favor immunity. This rebuttable presumption would permit many human rights cases to reach the merits, while reining in the foreign policy costs of such litigation. Finally, this Note addresses the constitutionality of executive immunity suggestions and functional concerns of politicization and reciprocity.
