Foreign Official Immunity: Lawsuits Against Foreign Government Officials in U.S. Courts

I have an article in the May issue of the Washington Diplomat, the magazine for the diplomatic community, entitled "Legal Minefield: Lawsuits Force Foreign Governments to Navigate U.S. Court System" that provides a brief practical primer on lawsuits against foreign government officials in U.S. courts (mostly under the Alien Tort Statute or Torture Victim Protection Act) and U.S. Government practice for filing Suggestions of Immunity in these cases.

Here are a few excerpts:

Over the last forty years, more than 50 lawsuits have been filed in U.S. courts against foreign government officials, including the current or former heads of state or government of Azerbaijan, Brunei, China, Colombia, Gabon, Grenada, Haiti, India, Israel, Japan, Jordan, Myanmar, Mexico, Philippines, Rwanda, Saudi Arabia, Sri Lanka, the United Kingdom, the UAE, and Zimbabwe. Prince Charles has been sued. Even two Popes -- John Paul II and Benedict XVI -- have been the target of lawsuits. And suits have been filed against numerous senior ministers, including foreign ministers, defense, and interior ministers, and even foreign judges.

Foreign governments often react angrily when lawsuits are filed against their current or former officials. They generally view the suits as legal attacks on their government policies. Many governments file diplomatic notes of protest and ask the State Department to take action to ensure that the suits are dismissed. When I was the legal adviserof the State Department, I met regularly with unhappy ambassadors of countries whose officials had been targeted in human rights lawsuits.

Although the U.S. Government will not formally represent a foreign official or foreign government in court, if the suit is against a current head of state or government or foreign minister, or against a former head of state or government minister or other official relating to the official’s governmental acts -- it is usually willing to file a special legal brief -- called a “Suggestion of Immunity” -- asking a judge to dismiss the suit on the basis that these officials enjoy immunity from suit under both U.S. law and international law. Sitting heads of state or government and foreign ministers are entitled to absolute “status-based immunity” from suit based on the positions they hold. Lower-ranking officials and former officials (including former heads of state or government) enjoy “conduct-based immunity” against suits for their governmental acts (but do not enjoy immunity for their personal acts).

The Executive branch considers its Suggestions of Immunity to be binding on the courts. In other words, it believes that when the Justice Department submits a Suggestion of Immunity with a determination by the Legal Adviser, then a court is required to dismiss the case. U.S. judges have almost always been willing to defer to Suggestions of Immunity submitted on behalf of sitting heads of state or government, although some courts have hinted that they may not feel legally bound to accept immunity determinations involving lower-ranking or former officials.

The State Department Legal Adviser has made only a handful of immunity determinations in the last few years regarding former officials or lower-ranking officials, including in suits against former President Zedillo of Mexico and former President Uribe of Colombia, the directors of Pakistan’s intelligence directorate, and several judges in Israel. The court subsequently dismissed the suit in all of these cases.

I previously discussed State Department practice in official acts immunity cases in “The Dog That Caught the Car: Observations on the Past, Present, and Future Approaches of the Office of the Legal Adviser to Official Acts Immunities” in the Vanderbilt Journal of Transnational Law.