Last week, I responded to my friend John Bellinger’s comments about the district court’s ruling on foreign official immunity in the Singh case. John has a new post at Lawfare reporting on the Second Circuit’s decision in Rosenberg v. Pasha, which affirmed dismissal of the Mumbai bombing case on foreign official immunity grounds. He ends his post by noting the distinction between two different questions: (1) whether gross violations of human rights are official acts to which conduct-based immunity attaches under federal common law; and (2) whether courts should recognize a jus cogens exception to foreign official immunity once that immunity has attached. Since the difference between these two questions may not be obvious to everyone, a few words of explanation may help clarify an important distinction. (For more extensive discussion of the analytical structure of immunities, see here and here.)

Foreign official immunity can attach for various reasons. Some foreign officials are entitled to immunity based on their status. This is often called status-based immunity. Under the doctrine of head-of-state immunity, for example, sitting heads of state, heads of government, and foreign ministers are immune from suit in U.S. courts for any act, official or not. Courts have refused to recognize a jus cogens exception once head-of-state immunity has attached on the basis of the defendant’s status. See, e.g., Ye v. Zemin, 383 F.3d 620, 625-27 (7th Cir. 2004); SOS Attentats et Béatrice Castelnau d’Esnault v. Gadafy, 125 Int’l L. Rep. 490 (French Court of Cassation) (Mar 13, 2001); Case Concerning the Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), 2002 I.C.J. 3, ¶ 58 (Feb. 14). Sometimes immunity is granted by statute, and courts have refused to recognize jus cogens exceptions to statutory schemes extending immunity to foreign states and/or foreign officials. See, e.g., Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 718-19 (9th Cir. 1992); Jones v. Ministry of Interior of Saudi Arabia, [2007] 1 A.C. 270, ¶¶ 14-28 (H.L. 2006) (Lord Bingham); id. ¶¶ 66-99 (Lord Hoffman); Zhang v. Zemin, NSWSC 1296, ¶¶ 20–23 (New South Wales S. Ct. 2008); Bouzari v. Islamic Republic of Iran, 71 OR (3d) 675, at ¶ 95 (Ontario Ct. of App. 2004). In other words, once immunity has attached—by international law, by federal common law, or by statute—courts have been reluctant to find an exception even for gross violations of human rights.

Foreign officials not entitled to immunity based on their status, are immune from suit in U.S. courts only for their “official acts.” This is often called conduct-based immunity. U.S., foreign, and international courts have consistently held that gross violations of human rights are not official acts to which conduct-based immunity attaches. See, e.g., Yousuf v. Samantar, 699 F.3d 763, 776 (4th Cir. 2012); Enahoro v. Abubakar, 408 F.3d 877, 893 (7th Cir. 2005); Hilao v. Estate of Marcos, 25 F.3d 1467, 1472 (9th Cir. 1994); Doe v. Qi, 349 F. Supp. 2d 1258, 1287 (N.D. Cal. 2004); Cabiri v. Assasie-Gyimah, 921 F. Supp. 1189, 1198 (S.D.N.Y. 1996); Xuncax v. Gramajo, 886 F. Supp. 162, 175-76 (D. Mass. 1995); Regina v. Bow Street Metropolitan Stipendiary Magistrate ex parte Pinochet Ugarte (No.3), [2000] 1 A.C. 147, 205 (H.L. 1999) (Lord Browne-Wilkinson); Attorney General of Israel v. Eichmann, 36 I.L.R. 277, 309-10 (Israel S. Ct. 1962); 1 Trial of the Major War Criminals Before the International Military Tribunal 223 (1947). Courts have not had to reach the question whether there is a jus cogens exception to conduct-based immunity, because no immunity attaches to the jus cogens violation in the first instance. In short, as D.C. Circuit Judge Stephen Williams has noted, the question whether an immunity attaches is “quite distinct” from the question whether to recognize exceptions to an existing immunity. Belhas v. Ya’alon, 515 F.3d 1279, 1292 (D.C. Cir. 2011) (Williams, J., concurring).

John says that the Second Circuit’s decision in Rosenberg clarifies a split with the Fourth Circuit’s decision in Samantar. Not on the jus cogens issue. The Second Circuit has held that it is absolutely bound by State Department determinations of immunity, including determinations conduct-based immunity. Matar v. Dichter, 563 F.3d 9, 15 (2d Cir. 2009). The question for the Second Circuit has not been whether gross human rights violations are official acts—it considers itself bound by the executive’s determination in each case—but whether to recognize a jus cogens exception to immunity that has attached by virtue of the executive’s determination. The Fourth Circuit, on the other hand, has held that it is not absolutely bound by the State Department’s conduct-based immunity determinations (although it gives them “substantial weight”). Yousuf v. Samantar, 699 F.3d 763, 773 (4th Cir. 2012). It has therefore had to answer the question whether jus cogens violations are “official acts” to which conduct-based immunity attaches, and it said no. Id. at 776. (For further discussion, see here.)

In other words, the Fourth Circuit in Samantar answered the first question (whether gross violations of human rights are official acts to which conduct-based immunity attaches under federal common law), while the Second Circuit in Rosenberg and Matar answered the second question (whether courts should recognize a jus cogens exception to foreign official immunity once that immunity has attached). Because these courts have addressed different questions, there is currently no circuit split that the Supreme Court needs to resolve (the apparent split over the level of deference to the State Department did not affect the outcome in Samantar, because the Fourth Circuit agreed with the executive’s determination that Samantar was not immune).

It is also important to note that the State Department’s determination of immunity in the Rosenberg case was not based on a theory that jus cogens violations are official acts entitled to conduct-based immunity. As I have explained before, the executive’s determination in Rosenberg was based on the failure of the complaint to plead facts sufficiently establishing the defendants’ complicity in the Mumbai bombings. In this and other filings, the Obama Administration has been careful to leave the door open to denying conduct-based immunity in cases of well-substantiated human rights violations, something it did in the Samantar case. As I said when the Rosenberg determination was originally filed, “[i]f the plaintiffs’ claims were well substantiated, it would be remarkable to conclude that planning and supporting terrorist attacks against American citizens were ‘official acts’ entitled to immunity from suit in U.S. courts.”