Keitner: The Common Law of Foreign Official Immunity

Chimène I. Keitner (Univ. of California - Hastings College of the Law) has posted The Common Law of Foreign Official Immunity (Green Bag, forthcoming). Here's the abstract:

This Article offers three guidelines for adjudicating claims to foreign official immunity after the U.S. Supreme Court's decision in Samantar v. Yousuf, which held that an individual defendant's immunity from the jurisdiction of U.S. courts “is properly governed by the common law.” First, courts should not conflate status-based and conduct-based immunity. Second, courts should not assume that the deference accorded to Executive suggestions of status-based immunity necessarily translates to claims of conduct-based immunity. Third, courts should reject the argument that all acts performed under color of law or in an individual’s “official capacity” are entitled to conduct-based immunity. There are many bars to civil suits against, and criminal prosecutions of, foreign defendants in U.S. courts for alleged human rights violations. However, conduct-based immunity will not normally prevent a U.S. court that otherwise has personal and subject-matter jurisdiction from adjudicating claims involving an individual defendant’s private or hybrid acts if two conditions hold: first, the applicable law provides for individual responsibility, and second, the proceedings seek to impose consequences solely on the individual, not the state itself.