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.
I have suggested in a recent symposium contribution that the way in which courts reason about foreign official immunity in both civil and criminal proceedings will depend in large part on whether they reason from a baseline of immunity, or a baseline of plenary territorial jurisdiction over a physically present defendant. The ICJ seems to reject a choice between these two baselines as a general matter, reasoning that “Exceptions to the immunity of the State represent a departure from the principle of sovereign equality. Immunity may represent a departure from the principle of territorial sovereignty and the jurisdiction which flows from it.” (¶ 57)
Paul Stephan has suggested in a recent blog post that the ICJ’s decision “may imply” that the extraterritorial exercise of prescriptive jurisdiction would also violate international law. Although this position is currently being argued strongly to the U.S. Supreme Court in the pending Kiobel v. Royal Dutch Petroleum case, I do not read the ICJ’s decision as being relevant in this context, particularly since, as I have argued elsewhere, the conduct-regulating rules being applied in Alien Tort cases come from international law. That said, many doctrines other than immunity (including, where applicable, forum non conveniens, exhaustion of local remedies, act of state, and basic requirements for the exercise of personal jurisdiction) recognize the importance of reconciling competing claims to exercise adjudicatory authority over disputes that implicate multiple territorial sovereigns. The ICJ was no doubt wise to restrict its analysis to the narrow question of adjudicatory jurisdiction over the activities of a foreign state’s armed forces engaged in armed conflict on the territory of the forum state (¶¶ 77-78), but this will not discourage observers from attempting to extract broader lessons.