Keitner: Foreign Official Immunity after Samantar

Chimène I. Keitner (Univ. of California - Hastings College of the Law) has posted Foreign Official Immunity after Samantar (Vanderbilt Journal of Transnational Law, forthcoming). Here's the abstract:

Part I of this symposium contribution seeks to put in sharper focus exactly what is, and what is not, in dispute following the U.S. Supreme Court's unanimous decision in Samantar v. Yousuf, No. 08-1555 (Jan. 2010). Part II presents three challenges to common assumptions about conduct-based immunity, which I consider under the headings of personal responsibility, penalties, and presence. Under the heading of personal responsibility, I emphasize that state responsibility and individual responsibility are not mutually exclusive. This pushes against the view that the only relevant question for determining an individual’s entitlement to conduct-based immunity is whether the alleged conduct is attributable to the foreign state. Briefly stated, conduct that is not attributable to the foreign state does not benefit from immunity. Conduct that is solely attributable to the foreign state and does not entail personal responsibility does benefit from immunity. Conduct that entails both personal and state responsibility might or might not benefit from immunity, depending on other relevant factors. Part III suggests criteria that should guide lower courts in determining an individual defendant’s entitlement to conduct-based immunity.