Stephens: Abusing the Authority of the State: Denying Foreign Official Immunity for Egregious Human Rights Abuses

Beth Stephens (Rutgers Univ., Camden - Law) has posted Abusing the Authority of the State: Denying Foreign Official Immunity for Egregious Human Rights Abuses (Vanderbilt Journal of Transnational Law, forthcoming). Here's the abstract:

When victims and survivors of egregious human rights abuses seek to hold state officials accountable, the officials will inevitably claim immunity from criminal prosecution or civil lawsuits. They argue that they are protected by the state’s own immunity because only the state can be held responsible for acts committed by its officials, even if those actions violate international law. This claim to immunity is founded on two interrelated errors, one based in history and one in logic.

First, the human rights transformation of international law that began in the aftermath of World War II has also transformed immunity law. International human rights norms have rendered obsolete the view that a state can protect its own officials from accountability for international human rights violations. In the era of international human rights norms that govern despite conflicting domestic laws, foreign officials who commit egregious abuses cannot shelter behind the immunity of the state.

Second, immunity absolutists err when they insist that, because the state is responsible under international law for acts committed in the exercise of governmental authority, the officials who commit such acts must be protected by the state’s immunity. There is no logical bar to holding both states and their officials responsible for international human rights violations. Nor is there any logical bar to denying immunity to officials even if the state itself is granted immunity. The policies underlying the various categories of immunity differ, and offering immunity to one actor does not require immunizing others.

International human rights norms fundamentally altered the relationship between international law and domestic human rights violations. Government officials have no claim to immunity in foreign or international courts for acts in violation of those norms.