Thursday, June 03, 2010

SCOTUS Holds FSIA Does Not Immunize Foreign Government Officials

The Supreme Court recently decided Samantar v. Yousuf, No. 08-1555, in which it held that the Foreign Sovereign Immunities Act does not apply to the immunity claims of foreign officials. Here is an excerpt from the Syllabus of the case:

Respondents, who were persecuted by the Somali government during the 1980’s, filed a damages action alleging that petitioner, who then held high level government positions, exercised command and control over the military forces committing the abuses; that he knew or should have known of these acts; and that he aided and abetted in their commission. The District Court concluded that it lacked subject-matter jurisdiction and granted petitioner’s motion to dismiss the suit, resting its decision on the Foreign Sovereign Immunities Act of 1976 (FSIA or Act), which provides that a “foreign state shall be immune from the jurisdiction” of both federal and state courts except as provided in the Act, 28 U. S. C. §1604. The Fourth Circuit reversed, holding that the FSIA does not apply to officials of a foreign state.

Held: The FSIA does not govern petitioner’s claim of immunity. Pp. 4–20.

. . .

(b) Reading the FSIA as a whole, there is nothing to suggest that “foreign state” should be read to include an official acting on behalf of that state. The Act specifies that a foreign state “includes a political subdivision … or an agency or instrumentality” of that state, §1603(a), and specifically delimits what counts as an “agency or instrumentality,” §1603(b). Textual clues in the “agency or instrumentality” definition—“any entity” matching three specified characteristics, ibid. —cut against reading it to include a foreign official. “Entity” typically refers to an organization; and the required statutory characteristics— e.g ., “separate legal person,” §1603(b)(1)—apply awkwardly, if at all, to individuals. Section 1603(a)’s “foreign state” definition is also inapplicable. The list set out there, even if illustrative rather than exclusive, does not suggest that officials are included, since the listed defendants are all entities. The Court’s conclusion is also supported by the fact that Congress expressly mentioned officials elsewhere in the FSIA when it wished to count their acts as equivalent to those of the foreign state. Moreover, other FSIA provisions— e.g., §1608(a)—point away from reading “foreign state” to include foreign officials. Pp. 7–13.


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