Notes on Official Immunity in ATS Litigation

Abstract

In Samantar v. Yousuf, the U.S. Supreme Court held that foreign officials sued under the Alien Tort Statute (ATS) are not the same as a foreign state and are not entitled to the protection of the Foreign Sovereign Immunity Act (FSIA). The Court, however, left open the possibility that the officials might nevertheless be entitled to some form of "immunity under the common law." Now the lower courts, and eventually the Supreme Court, will have to grapple with this yet-to-be-defined defense. This article suggests some considerations that may be of value in creating federal common law immunity for foreign officials in ATS litigation. It concludes by explaining that the defense of foreign official immunity inevitably will involve the weighing and balancing of a number of factors. These factors include input from a defendant officer's government, input from the executive branch, the plaintiff’s nationality, whether the alleged tort took place during military operations, and others.