Harold Hongju Koh, Legal Advisor to the U.S. State Department, addresses limits to diplomatic immunity in 2011 Burch Lecture

Feb 7, 2011

Harold Hongju Koh, Legal Adviser of the U.S. Department of State, delivered Vanderbilt Law School’s 2011 Charles N. Burch Lecture, “Foreign Official Immunity after Samantar: A U.S. Government Perspective,” in Flynn Auditorium February 4. As the keynote address of the Vanderbilt Journal of Transnational Law symposium addressing “Foreign State Immunity at Home and Abroad,” Koh’s lecture offered an illuminating policy perspective on the impact of an important 2010 Supreme Court decision, Samantar v. Yousuf, addressing the limits of diplomatic immunity.

The official U.S. policy statement post-Samantar is slated for publication in the October 2011 (43:4) edition of the Vanderbilt Journal of Transnational Law .

The Samantar suit was originally brought in 2004 before the U.S. District Court for the Eastern District of Virginia on behalf of five Somali torture survivors against their country’s former prime minister and minister of defense, Mohamed Ali Samantar. The plaintiffs sought to hold Samantar, who had immigrated to the U.S. and was living in Virginia, accountable for human rights abuses they had suffered in their home country perpetrated by subordinates acting under Samantar’s direct supervision in the 1980s and early '90s. Samantar’s move to dismiss the case on the grounds that he was shielded from civil liability under the Foreign Sovereign Immunities Act (FSIA) was granted by the District Court in 2007, and the plaintiffs appealed. Ultimately, the case reached the Supreme Court, which ruled 9-0 that Samantar was not shielded by the FSIA from such suits.

In his keynote address, Koh discussed the ways in which the Supreme Court’s decision in Samantar had informed the government’s approach to claims of legal immunity in the U.S. under the FSIA, which was originally enacted in 1976. One important issue the opinion clarified, according to Koh, is that “the FSIA does not govern immunity for foreign officials, only for governments. Immunity doctrines are for states, not for the personal benefit of individuals.”

While the Samantar opinion was clear regarding this issue, the task of determining whether an individual was acting in an official capacity as an agent of a legitimate government, and thus protected from legal action under the FSIA, remains with the State Department. “States recognize special protections for officials where the balance of public interests requires even deserving claimants to find remedies outside of the court systems,” Koh said. In cases where a legitimate government affirms that an individual was acting as its agent, immunity will typically apply. The task of establishing that the FSIA did not apply in the Samantar case was simplified, Koh noted, by the fact that Somalia did not have a government recognized as legitimate by the U.S. at the time the human rights abuses occurred.

Another issue Samantar illuminates, Koh said, is the need for all countries to have systems in place to address property and injury claims arising from human rights abuses and other criminal activity. “As a policy matter, the U.S. government is pressing for rule of law abroad that should include effective and available domestic remedies,” Koh said. “Effective and available domestic remedies should be applied by every country, not just the U.S.”

Koh also emphasized that the FSIA is not the only form of diplomatic immunity available, and in cases where it doesn’t apply, another diplomatic immunity provision might.

Koh endorsed the State Department’s authority to determine who was eligible for various forms of diplomatic immunity. “The State Department has unique and critical expertise, and daily grapples with the impact of litigation on foreign states,” he said. “In particular, it has special expertise with regard to common law regarding immunity, and it is well-situated to evaluate foreign policy and reciprocal law. One of the State Department’s charges is to keep track of changes in human rights norms. The U.S. has condemned grave human rights of the type in Samantar, and it has a strong incentive to defend human rights.”

In response to a question from a member of the audience expressing a concern that the State Department might be overwhelmed with the burden of pending federal cases in the post-Samantar era, Koh paraphrased President Obama, saying simply, "We got this."

Harold Hongju Koh took leave from his permanent position as the Martin R. Flug ’55 Professor of International Law at Yale Law School on June 25, 2009, to serve as Legal Advisor to the U.S. Department of State. Professor Koh is a leading expert on public and private international law, national security law, and human rights. He joined Yale’s law faculty in 1985 and served as its Dean from 2004-09.

The Charles N. Burch Lecture Series recognizes the contributions of Charles N. Burch to Vanderbilt Law School, its students and to the legal profession. Burch, an 1889 graduate of Vanderbilt Law School who was awarded the Founder’s Day medal in oratory, was deeply devoted to the interests of the school throughout his career. A founding partner in a prominent Memphis law firm, he served as a lecturer in law and a member of the University’s Board of Trust for 30 years. Burch had a distinguished career in the general practice of law and as a General Solicitor of the Illinois Central Railroad Company. He was special master for the Supreme Court of the United States in New Jersey v. New York, 283 U.S. 336.

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