Koh: Foreign Official Immunity After Samantar: A United States Government Perspective

Harold Hongju Koh (Legal Adviser, U.S. Department of State) has published Foreign Official Immunity After Samantar: A United States Government Perspective (Vanderbilt Journal of Transnational Law, Vol. 44, no. 5, p. 1141, November 2011). Here's the opening paragraph:

I am delighted to speak here at Vanderbilt regarding the U.S. Government’s perspective on Foreign Official Immunity after Samantar v. Yousuf. In the Samantar case, the U.S. Supreme Court unanimously held that the immunity of foreign government officials sued in their personal capacity in U.S. courts, including for alleged human rights violations, is not controlled by the Foreign Sovereign Immunities Act of 1976, but rather, by immunity determinations made by the Executive Branch. Let me break my topic today into three parts: first, the world of foreign official immunity as it existed before the Samantar case; second, the Supreme Court’s decision in Samantar and its implications; and third, the State Department’s “New Samantar Process,” which has been emerging since the Supreme Court’s decision—focusing, in particular, on distinguishing what we call Samantar issues from non-Samantar issues, the effect of a State Department suggestion of immunity, and the effect of State Department silence with respect to a foreign official’s claim of immunity.