In a forthcoming book chapter entitled Immunities of Foreign Officials from Civil Jurisdiction, Professor Chimène Keitner takes on one of the more perplexing issues in international law: the immunity of state officials from civil suit. Does the sovereign equality of states—a fundamental rule of the international system—require that state officials be treated like the state itself and not subjected to being haled into another state’s courts except under very limited circumstances? Or are individuals subject to jurisdiction based on normal principles of jurisdiction, albeit able to raise state immunity as a substantive defense? And what does it matter?
Professor Keitner starts by distinguishing status-based immunities from conduct-based immunities. The former, applied to heads of state, foreign ministers, and diplomatic and consular officials, are nearly absolute and derived from the position of the individual. Conduct-based immunities are murkier, requiring discussions of which acts are covered and whether immunity acts to oust jurisdiction altogether, as a defense to limit liability, or as a qualified restriction on adjudication tempered by countervailing considerations, including the violation of fundamental human rights by the accused official. In these latter cases, does it matter whether the acts involved were “official,” and, if so, what exactly does that mean?
The chapter tackles these issues thoroughly and with a wealth of historical evidence. One of Professor Keitner’s main contributions to this literature has been to go back to the early days of the United States, digging up fascinating cases of jurisdiction-immunity denials. Who knew, for example, about the several early examples of suits against officials for seizing ships? More recently, she found my personal favorite: a Russian princess sued a U.S. consular official for libel in Paris after he accused her of being a Soviet spy. Upshot: the French court decided that denying her a visa was within the official duties of the U.S. consular official, but bad-mouthing her to the press was not, and so he could be sued for that.
The chapter also takes on the very timely issue of the interplay of immunities and human-rights violations like torture that are required by treaty to be subject to both criminal and civil liability. In the criminal arena, courts have found that jurisdiction is proper under narrow circumstances (but see the arguably differing views on the subject of the House of Lords in the Pinochet litigation and the International Court of Justice in the Yerodia (Belgium v. Congo) cases). The civil cases have been much more restrictive, perhaps on the theory that criminal prosecutors are subject to some state check to ensure that the foreign-relations tensions generated by suit are minimal, while civil suits by private parties have no such check. The chapter takes on some of the important cases in the area, described as in a “state of flux” and neatly lays out the relevant cases and considerations. It pays special attention to the U.S. Supreme Court’s Samantar case, the Court’s latest statement on the subject, and to the post-Samantar litigation. As the author of an amicus brief to the Court in Samantar, Professor Keitner is in a privileged position to discuss these cases and their aftermath.
In short, anyone wanting a primer on civil immunities should start here. And for those who think they know the subject, you will learn something new from the author’s extensive research and clear explanations.