Immunities for Ex-Foreign Officials Accused of International Crimes

Abstract

The US Supreme Court in Yousuf v. Samantar recently ruled that the Foreign Sovereign Immunities Act, the law extending immunity in US courts to foreign States, does not apply to individuals. Instead, the US Executive Branch retains authority to determine whether a foreign official is entitled to immunity. Although the opinion relied exclusively on domestic law, it adds to an ongoing debate in international law over the extent to which individual State officials are entitled to immunity for acts committed during their service. This debate, taking place in domestic courts facing similar circumstances as the Supreme Court addressed in Samantar, in international courts, in treaties, and among international scholars, is increasingly relevant as many States address their responsibilities under international human rights treaties like the UN Convention Against Torture.This paper surveys the current application of foreign immunity for individuals in English speaking nations, in international agreements and courts, and as discussed by legal scholars. Noting the current, somewhat confused, application of the principle, I then recommend that domestic courts apply the long standing principle of personal immunity (ratione personae) to foreign officials during their time in office and act based immunity (ratione materiae) to ex-foreign officials sued for decisions or acts committed during their time in office.