The Second Circuit of the US Court of Appeals has recently (April 16, 09) held in Matar v. Dichter that the former head of the Israeli General Security Service is immune in a civil suit brought under the US Aliens Tort Claims Act (28 USC § 1350) alleging war crimes and extrajudicial killing. The suit relates to Dichter’s participation in an attack on a suspected Hamas leader (Saleh Mustafah Shehadeh) in July 2002. Shehadeh’s apartment was bombed by an Israeli military jet in attack which destroyed the apartment building and surrounding buildings. Apart from Shehadeh, 14 other people were killed in the attack. This case is part of a growing list of US cases addressing the legal basis of the immunity of foreign officials. There is a split among the Circuits of the Court of Appeals as to whether foriegn officials are to be considered as an “agency or instrumentality” and thus entitled to immunity under §1603 the US’s Foreign Sovereign Immunity Act (FSIA) (for recent analysis, see Bradley, Foreign Officials and Sovereign Immunity in US Courts, ASIL Insights, Mar, 2009). Dichter’s argument that he was immune under the FSIA was accepted by the first instance District Court (see here). In an earlier case, the Second Circuit Court of Appeals had held that:
“an individual official of a foreign state acting in his official capacity is the ‘agency or instrumentality’ of the state, and is thereby protected by the FSIA.” In re Terrorist Attacks on 15 September 11, 2001, 538 F.3d 71, 81 (2d Cir. 2008)
However, in Matar v. Dichter, the Second Circuit upheld Dichter’s immunity, but noted that the question presented in this case was whether formerforiegn officials are entitled to immunity under the FSIA. Taking a different approach, the Court stated:
We decline to decide this close question because, whether the FSIA applies to former officials or not, they continue to enjoy immunity under common law. (P. 10)
In upholding the immunity of former officials under the common law, the Second Circuit relied on the views of the US Executive Branch (see here and here) which has long argued that it is not the FSIA that provides immunity to foreign officials (serving or former) in US law but rather the common law and customary international law. 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. In a previous post, I have argued that there is no jus cogens exception to immunity.
Although, at first glance, these cases relate only to how international law of state immunity is translated to US law, they raise issues of more general interest to international lawyers. The first question raised by these US cases is whether the functional immunity of foreign officials (the immunity of foreign officials with respect to acts performed in the exercise of their official capacity) is the same as the immunity of foreign States. If the two are the same then there is good reason for holding that foreign officials are a manifestation of the State for the purpose of according immunity and there would be good reason to interpret the FSIA (and similar immunity legislation, eg in the UK and Australia) as extending to individual officials. However, this would be erroneous.
The immunity of foreign officials is not the same as that of foreign States. There are two reasons for according functional immunity to foreign officials, former officials or other agents of the State. The first reason for according functional immunity is procedural. The immunity of the foreign official ensures that the claimants cannot simply bypass state immunity by suing agents or officials of the State. A State can only act through officials andif the immunity of the State is to be effective it must extend to the officials or agents of the State. Since this purpose of functional immunity is to prevent foreign courts from adjudicating on acts of foreign States in litigation involving foreign officials, the immunity of the foreign official is derivative of that of the State. This is one reason given by the US Second Circuit in the In Re Terrorist Attack case for holding that foreign officials are to be regarded as an agency of a foreign State and thus entitled to immunity under the FSIA:
a claim against an agency of state power, including a state officer acting in his official capacity, can be in effect a claim against the state. (p. 31)
However, functional immunity serves a second purpose. This type of immunity is also a means for giving effect to a substantive defence that foreign officials are entitled to. This is the official capacity defence under which State officials are not to be held personally responsible for acts which are done in their official capacity. These acts are “acts of the State” and are to be attributed to the State only. This principle was accepted by both parties (the US and the UK) in the MacLeod case which followed from the Caroline incident. It was was expressed by the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia in Prosecutor v Blaškić (1997) in the following terms:
“[State] officials are mere instruments of a State and their official action can only be attributed to the State. They cannot be the subject of sanctions or penalties for conduct that is not private but undertaken on behalf of the State. In other words, State officials cannot suffer the consequences of wrongful acts which are not attributable to them personally but to the State on whose behalf they act: they enjoy so-called ‘functional immunity’. This is a well established rule of customary international law going back to the eighteenth and nineteenth centuries, restated many times since.” (para. 38)
It is this second purpose of functional immunitywhich differentiates it from the immunity of the State. The official is immune from liability with respect to all official acts which are regarded as acts of the State and attributable to the State (except where international law ascribes individual liability to the individual). The immunity does not just apply to sovereignacts with respect to which the State is immune. Individual officials are immune even in cases concerning non-sovereign acts as long as they act in their official capacity. So an individual official is not to be held personally responsible for a commercial act/transaction which that official enters into on behalf of the State. The State is not immune, so the procedural reason for immunity of officials does not apply. But the individual official is immune as he is not to be held personally responsible – only the State may be. Conflating the immunity of the State and that of the individual officials loses sight of this point. The danger of treating the functional immunity of officials (serving or former) is that the court may then consider that the exceptions to immunity applicable to States are similarly applicable to officials (as the 2nd Circuit did In re Terrorist Attacks). Doing so might result in an individual official being held personally responsible for acts which are to be regarded as acts of the State in circumstances when international law does not ascribe individual responsibility.
Another point of interest in these cases is how one reconciles the immunity which is accorded to foreign officials in civil suits against alleging international crimes with the lack of immunity which would exist in foreign criminal proceedings against officials who would ordinarily possess immunity. The question here is whether civil proceedings against foreign officials, alleging acts which amount to international crimes, are to be considered as analogous to criminal proceedings against such officials (where there is, at least in some cases, no immunity) or cases against foreign States (where there is immunity). The US statement of interest argues there is a distinction between immunity of foreign officials in civil proceedings and immunity in criminal proceedings:
As an initial matter, international law clearly distinguishes between the civil and criminal immunity of officials. On the civil side, officials are accorded immunity in part because states themselves are responsible for their officials’ acts. On the criminal side, in contrast, international law holds individuals personally responsible for their international crimes, and does not recognize the concept of state criminal responsibility. See Jones, UKHL 26, ¶ 31; see also id. ¶ 19 (distinguishing criminal proceedings as “categorically different” for immunity purposes). Moreover, critically, there is the check of prosecutorial discretion in the criminal context: the Nuremburg proceedings were instituted by sovereign governments, and criminal prosecutions in this country are likewise controlled by the Executive branch. See In re Grand Jury Proceedings, 613 F.2d 501, 505 (5th Cir. 1980). Thus, while Congress has provided limited authority for the criminal prosecution of war crimes in the federal courts, . . . , any decision to bring such grave charges against a foreign official would be made by the Executive – and only after exceedingly careful consideration of the potential diplomatic consequences. By contrast, civil lawsuits like the one at bar are brought by private plaintiffs and consequently present an uncontrolled risk of interference with the Executive’s conduct of foreign affairs. Cf. Sosa, 542 U.S. at 727
The point about international law recognising individual responsibility for international crimes is an important one. This principle of individual criminal responsibility removes the substantive reason (the official capacity defence) for functional immunity. Where international law also confers extraterritirorial jurisdiction for those crimes and contemplates prosecution of officials (eg because the crime mainly covers official action – like torture or grave breaches of the Geneva Conventions), the procedural reason for functional immunity is also removed. But the question is doesn’t individual responsibility in the more serious context of criminal proceedings also cover individual responsibility in the lesser context of civil liability. In Sosa v. Alvarez Machain542 US 692, Justice Breyer of the US Supreme Court stated that:
consensus as to universal criminal jurisdiction itself suggests that universal tort jurisdiction would be no more threatening. . . . That is because the criminal courts of many nations combine civil and criminal proceedings, allowing those injured by criminal conduct to be represented, and to recover damages, in the criminal proceeding itself. … Thus, universal criminal jurisdiction necessarily contemplates a significant degree of civil tort recovery as well.
This may well be so but Justice Breyer does not address the concern that civil tort recovery in effect permits recovery against foreign States in circumstances where direct proceedings against the foreign State is precluded by the law of immunity.