At Lawfare, John Bellinger has commented on Judge Boasberg’s August 19 ruling that former Indian Prime Minister Manmohan Singh is immune from suit for human rights abuses in India allegedly committed while he was Prime Minister, but not while he was Finance Minister. There is much that the ruling gets right. In particular, Judge Boasberg clearly distinguishes between (1) status-based immunities, like head-of-state immunity, which extend to all acts (even purely private ones) but apply only while the official is in office, and (2) conduct-based immunity, which extends only to official acts but applies even after an official leaves office. I agree with John that the ruling makes a few mistakes when it comes to official act immunity, but I see those mistakes differently. The fundamental problem, in my view, is that the court assumes that an act is official (or not) based on the status of the government official, rather than looking to the nature of the act itself.

When this suit was filed, Singh was entitled to status-based immunity as a sitting head of government, and the executive branch filed a Suggestion of Immunity to that effect. But by the time of the district court’s ruling, Singh was no long Prime Minister. The executive took the position that its determination of immunity continued nevertheless, a position Judge Boasberg properly rejected. Dismissing the suit on head-of-state immunity grounds, the court noted, would leave plaintiffs free to refile their suit against the now-former Prime Minister.

Instead, the district court dismissed the plaintiffs’ claims for alleged human rights abuses during Singh’s time as Prime Minister on the basis of his “‘residual immunity’ for official acts taken while he served in that capacity.” To be clear, this is a conduct-based immunity, which depends on the official character of Singh’s acts (former heads of state enjoy no greater conduct-based immunity than other former officials). But the court did not analyze whether the acts alleged in the complaint were official acts entitled to immunity—it simply assumed that Singh’s acts were official based on his status as Prime Minister. This was the court’s first mistake.

The district court next considered the plaintiffs’ claims based on alleged human rights abuses during Singh’s time as Finance Minister. The court refused to dismiss these claims because “they did not occur in the course of his official duties as head of state; accordingly, they are not encompassed within the purview of head-of-state immunity.” This was the court’s second mistake. As John Bellinger points out in his Lawfare post, “former government officials generally also enjoy immunity for their official acts while serving in any capacity, not just as heads of state.”

However, in both instances, the district court erred by not asking whether the acts alleged in the complaint were “official acts” entitled to conduct-based immunity. As I have previously explained, U.S. courts have consistently and correctly held that torture and other gross violations of human rights are not official acts to which conduct-based immunity attaches under federal common law. Nor does international law on official immunity require that human rights violations be treated as official acts.

This does not mean that every conclusory allegation of human rights abuse will be sufficient to prevent immunity. The Obama Administration’s position has been to presume that actions taken by a foreign official exercising the powers of his office were taken in an official capacity. But significantly, the Administration has left the door open to deny conduct-based immunity in well-substantiated cases of gross human rights abuses. The fact that an act may be attributable to a foreign state for purposes of state responsibility does not establish that the act is an “official act” for purposes of immunity.

The complaint in this case contains the kinds of conclusory allegations that the State Department has, in the past, found insufficient to overcome its presumption of official capacity. Essentially, the complaint alleges that, as Finance Minister, Singh approved financing for counter insurgency operations in Punjab and that, as Prime Minister, he headed the police and security forces. If there are more specific facts implicating the defendant in the human rights violations alleged, they should have been included in the complaint. Like John, I expect that the executive will file a new Suggestion of Immunity, this time on grounds of conduct-based, official-act immunity.

Finally, it is worth asking whether the State Department’s determination of immunity and the district court’s consideration of that issue were not premature in this case. The defendant has not yet been served with process, and the executive branch has previously suggested (p. 8, n. 3) that courts should resolve questions of jurisdiction and service before ruling on questions of immunity. To achieve the legitimate purposes of foreign official immunity, a court need not always base its decision on official-immunity grounds.