This is an interesting development. Would I be correct in concluding that the consequence of this case (if it is followed in other circuits or in the Supreme Court) would be to render the ATCA not very useful for pursuing civil remedies against miitary officers, intelligence agents, police officers or maybe even paramilitaries who are alleged to have committed torture, crimes against humanity or war crimes?

Notably, the “first generation” of ATCA cases (eg. Filartiga) all proceeded (usually as default judgments) against these kinds of state officials who were without doubt acting in an official capacity when they tortured or murdered the victims. Presumably these kinds of actors would benefit from the functional immunity from civil suit under the holding in Matar? If so, it seems that only victims of serious human rights violations by non-state actors will likely have much of a chance under the ATCA.

Is this right, or have I missed something important here?

Neha

I will read the refered posts and article on the matter.

You ask about the application of immunity before international tribunals. Can I refer you to an earlier post of mine (which also refers to an article of mine) where I deal with this issue. See here. On whether there is a jus cogens exception to immunity see the post I referred to above (here)

I would have thought that most states would take a similar position to the US position you speak of. That is, most States would not leave their officials to have to pay for things they did in their official capacity and would seek to reimburse their officials for being held personally liable. Thus, the money would ultimately come from the State.

You ask what violation of jus cogens norms would not give rise to individual responsibility. I assume that you ask this question because I say there is no jus cogens exception to immunity but do say that where international law ascribes individual criminal responsibility (and where it allows for extraterritorial jurisdiction) there is no immunity in foreign domestic courts. So I guess the question is if violations of jus cogens always give rise to individual responsibility doesn’t that mean there is no immunity for any alleged violations of jus cogens. There are two answers to this question. First, it is not certain that all violations of jus cogens norms would give rise to individual responsibility. Some would consider the right to self-determination to be a jus cogens norm (indeed even the ILC has included it in a list of jus cogens norms) but there has been no suggestion that violations of right to self-determination are an international crime for which individuals are responsible. Secondly, not all violations of jus cogens norms would give rise to extraterritorial jurisdiction, i.e not all violations of jus cogens norms can be adjudicated on in other States. The crime of aggression is a good example. Though there is individual responsibility for this crime, the ILC in its Draft Code of Crimes Against the Peace and Securityi of Mankind did not accept that this was a crime subject to universal jurisdiction. The reason they gave was because the foreign domestic court would have to determine the responsibility of the State that committed the aggression and this would be impermissible.

So the lack of functional immunity with regard to international crimes is not because there is a violation of a jus cogens norm but because the two reasons for functional immunity do not exist.
answered a similar question raised in response to an earlier post

A very interesting post, i enjoyed reading it. I have a few questions to clear out doubts relating the subject and possible corrections if i misunderstood your analysis.

If you let me, i will try to be clear as possible,

1.- “Also, the US Executive’s Statement of Interest (see here) argued that, under customary international law, there is no exception to the immunity of foreign officials based on alleged violations of jus cogens norms.This view was accepted by the Second Circuit, correctly in my view.”

Are you talking only regarding civil proceedings or both civil and proceedings before national courts?

2.- The argument you propose regarding “theres no jus cogens exception for immunity” applies only before national courts? or at international level could be also takes as valid?

3.- The argument that you propose regarding “theres no jus cogens exception for immunity”, applies only regards state sovreign acts? or also covers as a procedural defense of the state official before any court – national or international – ?

4.- Considering the nature of jus cogens norms, so, the argument “theres no jus cogens exception for immunity”, which is in a broad sense, could be read as the immunity is a valid defense to put aside a jus cogens argument looking to disregard the immunity?
Regarding your earlier post.

5.- You are talking about the personal criminal responsability of the official, and lets take this example not only before national courts, even international tribunals, how the violation of a jus cogens norm will play a role in this matter?
because, genocide and torture, just to mention a few, are part of jus cogens and their nature are taken into account for the application of a rule to disregard immunity of individuals in these matters.

Thank you…

Also, i’m curious what jus cogens do not give rise to individual liability under intenrational law? It seems like most of them give rise to universal jurisdiction (see the recent decision in Ould Dah v. France).