Watch Out, Ministers! You are Not Immune under the U.S. Foreign Sovereign Immunities Act

Abstract

Recently the United State Supreme Court made a decision on whether the U.S. Foreign Sovereign Immunities Act (FSIA) should apply to a foreign official. In a U.S court, a civil action was brought by some victims of human rights violations, such as torture and extrajudicial killings in Somalia, commanded by a former Somalian government official who was Defense Minister at the time of such violations. The foreign official claimed immunity from the jurisdiction of the U.S. courts under the FSIA which grants immunity, with exceptions, to a foreign state including “agency or instrumentality of a foreign state.” He contended that since he was a high-ranking government official, he could be categorized as an “agency or instrumentality of a foreign state,” and subsequently, he is immune as a foreign state The Supreme Court rejected his claim, denying the application of the FSIA to the immunity of foreign officials. The Court's main argument is that an “agency or instrumentality” under the FSIA means an “entity” which includes a legal person, not a natural person. Thus, the immunity issue of a foreign official cannot be analyzed by the FSIA, but by the common law such as case laws. This decision is quite meaningful since it clearly sets up the scope of the FSIA by distinguishing immunity for a foreign state from that for foreign officials. With this new decision, the Court abrogated precedents of lower courts which have allowed or discussed immunity of foreign officials under the FSIA. Although this decision left open some important questions, such as whether a former foreign official can be immune if he acted within his official capacity, whether human right violations can be regarded as acts committed within or outside the scope of official capacity, whether such human right violations may be subject to exceptions to immunity, etc., the decision at least primarily may prevent a foreign official from simply raising his immunity defense under the FSIA. Consequently, it is expected that immunity of foreign officials will be scrutinized, by applying the well-recognized common law including international law. This paper takes a glance at the FSIA from its legislative history to rules on immunity for a foreign state to find out whether the FSIA may apply to foreign officials, and then reviews backgrounds and discussions of this case from lower courts to the Supreme Court.