EJIL: Talk!

Blog of the European Journal of International Law

Articles posted by Chimène Keitner

Germany v. Italy: A View from the United States

Published on February 15, 2012 Author: Chimène Keitner

Chimène I. Keitner is Associate Professor of Law, University of California Hastings College of the Law, and Co-Chair of the ASIL International Law in Domestic Courts Interest Group. In 2010, she represented amici Professors of Public International Law and Comparative Law in the U.S. Supreme Court case Samantar v. Yousuf.

U.S. lawyers are poring over the ICJ’s decision in Germany v. Italy to see what impact, if any, it might on legal proceedings in U.S. courts. My assessment is, “not much.” The immunity of foreign states is governed by the Foreign Sovereign Immunities Act (FSIA), which generally codifies the restrictive theory of immunity, except for provisions allowing certain types of suits against designated state sponsors of terrorism (the current list includes Cuba, Iran, Sudan, and Syria). The ICJ’s reasoning lends some support to the view that permitting suits against foreign states for their non-commercial acts absent an express waiver violates customary international law, but the court was careful to limit its holding to suits for conduct performed by one state’s armed forces during armed conflict on the territory of the forum state (¶ 78). In any event, within the U.S. legal system, Congress’s intent to hold state sponsors of terrorism liable will govern.

The ICJ’s acceptance of war crimes as acta jure imperii for the purpose of state immunity is consistent with current U.S. practice, as reflected in the Supreme Court’s decision in Saudi Arabia v. Nelson. Similarly, the United States has not yet recognized a jus cogens exception to state immunity, as reflected for example in the D.C. Circuit Court of Appeal’s decision in Princz v. Federal Republic of Germany, and in the absence of a statutory jus cogens exception in the FSIA.

Because both Germany and Italy agreed that state immunity is a matter of customary international law (¶ 53), the ICJ did not dwell on the possibility that state immunity might instead be a matter of comity. The distinction between customary international law and comity remains important as a matter of U.S. interpretation and application of state immunity, however, because—contrary to the language in Germany’s memorial (¶ 66 & n.91)—the United States as a general matter does not set out to disregard international law in most circumstances.

As for the immunity of current and former foreign officials, U.S. courts are still grappling with how to identify and define the applicable standards following the Supreme Court’s 2010 decision in Samantar v. Yousuf, which held that the FSIA does not govern such immunity where the foreign state is not the “real party in interest.” The ICJ has said that its decision in Germany v. Italy does not speak to whether, and to what extent, immunity might apply “in criminal proceedings against an official of the State” (¶ 91); nor, presumably, does it speak to civil proceedings in which the state is not the real party in interest. Read the rest of this entry…

Filed under: EJIL Analysis, International Court of Justice, State Immunity

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More Thoughts on the Scope of UNSCR 1973

Published on March 28, 2011 Author: Chimène Keitner

Chimène Keitner is Associate Professor of Law at the UC Hastings College of the Law.

The American Society of International Law’s 105th Annual Meeting just wrapped up in Washington, DC. As one of the meeting’s co-chairs, I am tremendously grateful to the speakers for their thoughful and timely remarks. I also appreciate the editors’ invitation to contribute some of my thoughts on the evolving situation in Libya to this forum.

Last week, Dapo offered an assessment of the legality of targeting Muammar Gaddafi under the terms of U.N. Security Council Resolution 1973. I would like to reflect on another aspect of that resolution that came up in the comments on Dapo’s post, namely, what the resolution means when it authorizes member states to take all necessary measures “to protect civilians and civilian populated areas under threat of attack.” Dapo’s view of the resolution as a whole is that it “it is really be about stopping Gaddafi’s forces from winning the civil war in Libya.” I tend to agree with this assessment, which carries potentially momentous implications for a system that, as Dapo indicates, was not originally designed to deal with internal conflicts.

Much of the current debate has focused on whether or not the coalition in fact has the ultimate goal of regime change. It certainly could be said that some of the principals “doth protest too much” in disavowing such an aim. Although the Obama administration’s rhetoric of democracy promotion is more restrained than that of its predecessor, Robert Shrum recently opined in The Week that the situation in Libya represents precisely the convergence of American values and interests that warrants overthrowing Gaddafi, and that the current administration knows this.

Presumably, under the Security Council resolution, the “civilian populated areas” that member states are authorized to protect may contain both civilians and those participating directly in hostilities against the government (i.e., rebel strongholds such as Benghazi). Whether the conflict in Libya is characterized as a civil war, a democratic uprising, or both, the tension between principles of external intervention and internal self-determination seems manifest.

This tension was even more evident during the U.S.-led invasion of Iraq, which is perhaps one reason that Resolution 1973 expressly excludes “a foreign occupation force of any form on any part of Libyan territory” from the ambit of authorized measures. I explore this tension at greater length in my book on The Paradoxes of Nationalism: The French Revolution and Its Meaning for Contemporary Nation Building, and I deal explicitly with the U.S. invasion of Iraq in Chapter Six. One can only hope that the coalition’s current efforts in Libya will prove less counterproductive than the earlier intervention in Iraq.

As Hamas’s 2005 victory in Gaza shows, the outcomes of popular elections are not always in the perceived national security interest of the United States or its allies. At the same time, the support for dictators that characterized U.S. foreign policy during the Cold War is morally untenable and, at least in its overt forms, decreasingly politically feasible. When, as in Libya, the object of protecting civilians appears to require removing an intransigent leader, simply eliminating foreign military occupation from the toolbox will not avoid a quagmire.