A. What Samantar Decided

In Samantar, members of a clan in Somalia alleged that Mohamed Ali Samantar, a former prime minister and minister of defense of Somalia, was responsible for egregious human rights abuses (including torture, killings, and arbitrary detention) perpetrated against them during the 1980s. They brought suit against him under the ATS and TVPA, seeking damages for his alleged authorization of the abuses. Samantar had fled Somalia for the United States in the early 1990s and was living in Virginia at the time the suit was brought.

Samantar argued, among other things, that the suit was barred by the Foreign Sovereign Immunities Act (FSIA), which confers immunity on “foreign states,” subject to various exceptions. The Supreme Court disagreed, holding that “the FSIA does not govern whether an individual foreign official enjoys immunity from suit.”Footnote ¹⁸ Although the term “foreign state” is defined in the FSIA to include not only the state itself but also an “agency or instrumentality” of the state, natural persons do not easily fit within this category, reasoned the Court.Footnote ¹⁹ In addition, the Court observed that there were potential differences between a foreign government's immunity and an individual official's immunity, and thus “there is . . . little reason to presume that when Congress set out to codify state immunity, it must also have, sub silentio, intended to codify official immunity.”Footnote ²⁰ “Reading the FSIA as a whole,” the Court concluded, “there is nothing to suggest we should read ‘foreign state’ in [the FSIA] to include an official acting on behalf of the foreign state, and much to indicate that this meaning was not what Congress enacted.”Footnote ²¹

Importantly, however, the Court made clear that it was not holding that there was no immunity in U.S. courts for foreign officials. “Even if a suit is not governed by the Act,” the Court noted, “it may still be barred by foreign sovereign immunity under the common law.”Footnote ²² Indeed, the Court said that it did “not doubt that in some circumstances the immunity of the foreign state extends to an individual for acts taken in his official capacity”; it simply noted that “it does not follow from this premise that Congress intended to codify that immunity in the FSIA.”Footnote ²³ Because of the possibility of common law immunity, the Court denied that its holding would make the FSIA “optional” by allowing plaintiffs to plead around a state's immunity by suing the state's officials.

The Court further noted that, in addition to common law immunity, the FSIA's immunity provisions might themselves be triggered in some suits brought against foreign officials. This would happen, for example, if a foreign state were deemed under the Federal Rules of Civil Procedure to be a necessary party to a lawsuit.Footnote ²⁴ The Court further observed that “it may be the case that some actions against an official in his official capacity should be treated as actions against the foreign state itself, as the state is the real party in interest.”Footnote ²⁵ For this “real party in interest” idea, the Court cited a domestic police abuse case brought under the civil rights statute, 42 U.S.C. § 1983, in which the plaintiff was seeking to collect attorney's fees. In that case, Kentucky v. Graham, the Court had explained that “[p]ersonal-capacity suits seek to impose personal liability upon a government official for actions he takes under color of state law,” whereas official-capacity suits “‘generally represent only another way of pleading an action against an entity of which an officer is an agent.’”Footnote ²⁶ The Court there also observed that “while an award of damages against an official in his personal capacity can be executed only against the official's personal assets, a plaintiff seeking to recover on a damages judgment in an official-capacity suit must look to the government entity itself.”Footnote ²⁷ Invoking that analysis, the Court in Samantar concluded that the case before it should not be treated as one in which the nation of Somalia was the real party in interest, noting that the “respondents have sued petitioner in his personal capacity and seek damages from his own pockets.”Footnote ²⁸

The Court's analysis in Samantar appears to invite the lower federal courts to develop a common law of foreign official immunity, and that is how it has been construed. Although the Court did not say so specifically, scholars have generally assumed that this common law should be treated as federal common law. That is, as developed by the federal courts, this law is assumed to be binding on the states, including the state courts, under the Supremacy Clause.Footnote ²⁹ This appears to be a reasonable assumption, even in light of the Supreme Court's restrictive approach to federal common law in recent years,Footnote ³⁰ for several reasons: the law of foreign official immunity is related to and sometimes overlaps with the issues addressed in the FSIA, and federal common law has commonly been used for statutory gap-filling;Footnote ³¹ this common law intersects with the constitutional powers of the president, including most notably the president's power to recognize foreign governments;Footnote ³² and the common law of immunity implicates national foreign affairs interests that are comparable to those implicated by the act of state doctrine, which has long been treated as a rule of federal common law.Footnote ³³

The Court did not give much guidance, however, about how to identify or develop the federal common law of foreign official immunity. There are a number of questions the Court left open, and these questions have divided the lower federal courts.

B. What Samantar Left Open

There were at least four questions left open after Samantar. First, to what extent, when faced with a claim of common law immunity, should courts defer to the case-specific views of the executive branch? There are statements in the Court's opinion that can be read to invite deference to the executive in making these immunity determinations. In particular, in explaining its conclusion that the FSIA did not address foreign official immunity, the Court observed: “We have been given no reason to believe that Congress saw as a problem, or wanted to eliminate, the State Department's role in determinations regarding individual official immunity.”Footnote ³⁴ This statement adverts, without disapproval, to the pre-FSIA role of the State Department, which involved essentially absolute deference by the courts, especially on issues of foreign governmental immunity.Footnote ³⁵ The Court also observed in a footnote that “the Department has from the time of the FSIA's enactment understood the Act to leave intact the Department's role in official immunity cases.”Footnote ³⁶

These descriptive statements about Congress and the State Department need not be read, however, to mandate absolute judicial deference to the State Department. The Court in Samantar was not required to resolve the issue in that case, given that the executive branch at that point had not taken a position on whether Samantar should receive common law immunity.Footnote ³⁷ Moreover, allowing the executive branch to determine for the judiciary on a case-by-case basis whether foreign official immunity is available poses potential separation of powers concerns, as Professor Ingrid Wuerth has argued.Footnote ³⁸ In addition to concerns about interfering with judicial independence, it is not clear what constitutional or statutory law gives the executive branch the authority to make these binding determinations. In the context of the common law act of state doctrine, the Supreme Court has resisted the idea that the executive branch should have case-specific control over judicial application of the doctrine.Footnote ³⁹

Second, what is the relationship between the common law immunity that courts are to develop and international law? As discussed in Part II, foreign official immunity is regulated by customary international law, although the precise scope of this immunity is currently a matter of controversy. Yet the Supreme Court said almost nothing about international law in its opinion. Its only reference to international law came in its response to Samantar's argument that interpreting the FSIA not to cover suits against foreign officials would run afoul of the Charming Betsy canon of statutory construction. Under this canon, federal statutes are to be construed, where fairly possible, to avoid violations of international law.Footnote ⁴⁰ The Court said that, even if Samantar were entitled to immunity under international law, it was “not deciding that the FSIA bars [Samantar's] immunity but rather that the Act does not address the question.”Footnote ⁴¹ As a result, reasoned the Court, its decision was not inconsistent with the Charming Betsy canon. But the Court said nothing about whether or to what extent courts should take account of international law when developing the U.S. common law of immunity, a question that potentially implicates longstanding debates about the domestic status of customary international law.

Third, the Court appeared to assume, consistent with international law, that conduct immunity is limited to “official acts.” But what acts qualify as official, and what materials are relevant to making that determination? Moreover, should conduct immunity apply whenever a suit is challenging official acts, or only when a favorable judgment would be directly enforceable against the foreign state? In domestic civil rights cases, tort suits brought against the officials of U.S. states are treated as “personal capacity” suits that do not trigger the state's immunity if damages are sought from the officer personally, even if the state might ultimately indemnify the official.Footnote ⁴² Moreover, this is true even though liability in these cases typically requires the existence of state action. The Court adverted to this line of cases in Samantar, but it did so in the context of explaining when a suit might trigger application of the FSIA, not in analyzing the scope of the common law immunity. The Court also referred in a different part of its opinion to Section 66 of the Restatement (Second) of Foreign Relations Law, which had said that there is common law immunity for foreign officials “if the effect of exercising jurisdiction would be to enforce a rule of law against the state,” but the Court did not elaborate on what this might mean and did not take a position on whether the Restatement standard was the correct one.

Finally, what effect, if any, does the TVPA have on the common law immunity of foreign officials? The TVPA, which was enacted in 1992, provides a cause of action for torture and “extrajudicial killing” carried out “under actual or apparent authority, or color of law, of any foreign nation.”Footnote ⁴³ Although the TVPA was invoked in Samantar, the Court did not address its relationship to the common law of foreign official immunity. This question is particularly salient today in light of the Supreme Court's restrictive approach to the other statute invoked in Samantar—the ATS. Since Samantar, the Court has held that the ATS generally does not apply to foreign conduct unless the suit sufficiently “touches and concerns the United States,”Footnote ⁴⁴ and that the statute does not apply to suits against foreign corporations.Footnote ⁴⁵ Because of these holdings, the TVPA is now the principal statutory vehicle for attempting to litigate foreign human rights abuses.

C. Conflicts in the Lower Courts

Since Samantar, the lower federal courts have become divided on these four questions and related issues. As for deference to the executive branch, although courts have consistently deferred to suggestions of immunity for sitting heads of state (who have broad status immunity),Footnote ⁴⁶ they have disagreed over whether to give absolute deference to the views of the executive branch concerning conduct immunity. Perhaps not surprisingly, the executive branch has consistently maintained since Samantar that courts should entirely defer to its case-specific views about whether to confer either status or conduct immunity.Footnote ⁴⁷ In the remand proceedings in Samantar, however, the U.S. Court of Appeals for the Fourth Circuit stated that, while “substantial weight” should be given to the executive branch's views about whether to confer conduct immunity, those views are not controlling.Footnote ⁴⁸ The court reasoned that, while head of state immunity is closely connected to the executive branch's constitutional power over the recognition of foreign states and governments, “there is no equivalent constitutional basis suggesting that the views of the Executive Branch control questions of foreign official immunity.”Footnote ⁴⁹ Moreover, the court observed that determinations of conduct immunity “turn upon principles of customary international law and foreign policy, areas in which the courts respect, but do not automatically follow, the views of the Executive Branch.”Footnote ⁵⁰ By contrast, other courts have stated, albeit often in dicta, that they are required to defer to the executive branch on whether to confer conduct immunity.Footnote ⁵¹ These courts have cited to, among other things, the history of judicial deference to executive determinations of foreign state immunity prior to the enactment of the FSIA.

As for the relevance of international law, no court has attempted simply to apply customary international law directly to determine whether to accord common law immunity to a foreign official. Many courts considering foreign official immunity have not even mentioned international law. Moreover, the executive branch has not suggested that the customary international law of foreign official immunity operates directly as federal law. Rather, it has merely informed courts that it—the executive branch—takes account of this international law along with a variety of other considerations when making suggestions concerning immunity.Footnote ⁵² The absence of direct judicial application of the customary international law of foreign official immunity is noteworthy in light of the scholarly debate that has been waged for the last several decades over whether customary international law should be directly applied by courts as federal law.Footnote ⁵³

Although no court has attempted to apply the customary international law of foreign official immunity directly as federal law, the U.S. Court of Appeals for the Fourth Circuit has held that there is an exception to conduct immunity for jus cogens violations of international law—that is, for violations of “peremptory” norms of international law that are “accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.”Footnote ⁵⁴ The Fourth Circuit based this holding on a variety of considerations, including international trends, U.S. lower court decisions, and congressional policies reflected in the TVPA. Other courts, by contrast, have rejected a categorical jus cogens exception to foreign official immunity, as has the executive branch.Footnote ⁵⁵ These courts have reasoned, among other things, that such an exception would unduly infuse questions about the merits of the plaintiff's claim into the issue of immunity and thereby undercut immunity's protective function.Footnote ⁵⁶

Finally, judges are also divided with respect to whether the TVPA itself overrides the common law of foreign official immunity. Some judges have concluded that, because this statute specifically addresses torture and extrajudicial killings carried out under color of foreign law, it must implicitly override the conduct immunity of foreign officials.Footnote ⁵⁷ Otherwise, the reasoning goes, the statute would largely be a dead letter. Other judges have reasoned, by contrast, that statutes should not be construed to override common law immunity by implication and that the TVPA would still have some applicability even without overriding conduct immunity.Footnote ⁵⁸ For its part, the executive branch has argued that the TVPA does not override the common law of foreign official immunity.Footnote ⁵⁹

A. Two Approaches

Under an effect-of-judgment approach to foreign official immunity, U.S. courts would recognize conduct immunity only when a judgment would be directly enforceable against a foreign state. This would mean that such immunity would generally be unavailable in tort suits (including suits asserting human rights violations), as long as the plaintiff made clear they were seeking damages only from the defendant official. A number of commentators have endorsed the effect-of-judgment approach.Footnote ⁶⁰

This approach is similar to the one that is followed in domestic civil rights litigation, including against officials of U.S. states. State governments have broad sovereign immunity.Footnote ⁶¹ Nevertheless, state officials can often be sued without triggering the state's immunity. There are two principal bodies of doctrine that allow for this.Footnote ⁶² First, state officials can freely be sued for injunctive relief to compel them to comply with federal law, pursuant to the Ex parte Young doctrine.Footnote ⁶³ The Court in Ex parte Young reasoned that, when an official acts contrary to the “superior authority” of federal law, the official is “stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct.”Footnote ⁶⁴ Some scholars have described this reasoning as a “fiction,” since it envisions that an official can simultaneously engage in state action for purposes of liability but act in a personal capacity for purposes of immunity, and the Supreme Court has itself described the doctrine this way.Footnote ⁶⁵ Whether fictional or not, the Court has defended the Ex parte Young idea as “necessary to permit the federal courts to vindicate federal rights and hold state officials responsible to ‘the supreme authority of the United States.’”Footnote ⁶⁶

Second, state officials can often be sued for damages as well, as long as the plaintiff seeks the money directly from the official rather than the state. The Supreme Court has freely allowed such “personal capacity” suits in tort cases, even for conduct that an official has carried out on behalf of the state.Footnote ⁶⁷ This is true even if the officer will be indemnified by the state for any damage award against them, which is common.Footnote ⁶⁸ However, such personal capacity suits are not always allowed. In particular, in cases seeking the restitution of money that is held by the state (such as in suits for refunds and backpay), courts tend to conclude that the state is the “real party in interest” even if the state is not named in the complaint, and that sovereign immunity is therefore triggered.Footnote ⁶⁹

Although suits against U.S. state officials will often avoid triggering state sovereign immunity, the officials themselves are entitled to certain common law immunities. Most of these immunities offer protection only against damage claims, not suits for injunctive relief. Certain officials, such as judges, legislators, and prosecutors, receive immunity based on their positions, but only for certain functions.Footnote ⁷⁰ Executive officials, including police offers and prison officials, are entitled to what is known as “qualified immunity”: they cannot be sued for damages unless they have violated clearly established law of which a reasonable officer would have known.Footnote ⁷¹ These common law immunities apply even in cases brought under Section 1983, on the theory that the statute was enacted against the backdrop of the common law and is presumed not to displace it without a clear indication of such intent by Congress.Footnote ⁷²

A noteworthy example of a court following the effect-of-judgment approach with respect to foreign official immunity is the 2019 decision by the U.S. Court of Appeals for the D.C. Circuit in Lewis v. Mutond.Footnote ⁷³ That case involved a damages suit brought under the TVPA by an American citizen against two foreign officials from the Democratic Republic of the Congo (DRC) for alleged torture over a six-week period. Despite a request from the DRC, the executive branch declined to take a position on whether immunity should be accorded. The D.C. Circuit concluded that the defendant was not entitled to common law immunity. Noting that “both parties assume § 66 [of the Restatement (Second) of Foreign Relations Law] accurately sets out the scope of common-law immunity for current or former officials,” the court said it would “proceed on that understanding without deciding the issue.”Footnote ⁷⁴ As discussed above, Section 66 of the Restatement (Second) states that common law immunity is appropriate “if the effect of exercising jurisdiction would be to enforce a rule of law against the state.” According to the court, exercising jurisdiction over a case enforces a rule of law against a foreign state only when a judgment in favor of the plaintiff “would bind (or be enforceable against) the foreign state.”Footnote ⁷⁵ That was not true here, reasoned the court, because the plaintiff was not seeking “to draw on the DRC's treasury or force the state to take specific action.”Footnote ⁷⁶

Not all courts have embraced the effect-of-judgment approach to foreign official immunity. Some courts have instead conceptualized foreign official immunity in broader terms, adopting what I will call a “nature-of-act” approach. The U.S. Court of Appeals for the Ninth Circuit did so, for example, in a 2019 decision, Doğan v. Barak.Footnote ⁷⁷ In that case, parents of a U.S. citizen killed during an Israeli naval blockade of Gaza sued a former Israeli defense minister for damages under the TVPA. In concluding that the defendant was entitled to immunity, the court reasoned that exercising jurisdiction over the defendant “would be to enforce a rule of law against the sovereign state of Israel” under the standard set forth in Section 66 of the Restatement. The court emphasized that “[t]he Complaint's claims for relief state—several times—that [the defendant's] actions were done under ‘actual or apparent authority, or color of law, of the Israeli Ministry of Defense and the Government of the State of Israel.’”Footnote ⁷⁸ Thus, unlike the court in Lewis, the court in Doğan construed Section 66 as focusing on the nature of the acts being challenged as opposed to where the damages award would come from.Footnote ⁷⁹ A number of other decisions since Samantar have reached the same conclusion.Footnote ⁸⁰

B. A Critique of the Effect-of-Judgment Approach

Despite its endorsement by some courts and scholars, there are a number of doctrinal and policy problems with the effect-of-judgment approach. As an initial matter, by limiting the conduct immunity of foreign officials to situations in which a judgment will be directly enforceable against a foreign state, this approach collapses the issue of foreign official immunity with the issue of whether the foreign state is the “real party in interest.” In Samantar, however, the Supreme Court treated these two issues as distinct. The Court reasoned that, in addition to the potential barrier of common law immunity, in some cases the foreign state will be the real party in interest, in which case the FSIA will apply.Footnote ⁸¹ If the common law of foreign official immunity were limited to situations in which the foreign state was the real party in interest, there effectively would be no separate category of conduct immunity for foreign officials in U.S. courts. Rather, there would be simply either foreign sovereign immunity under the FSIA (and thus no liability for the named official) or no immunity (because the state is not the real party in interest). Yet the Supreme Court assumed that there was a separate common law governing immunity for official conduct.

Second, contrary to the reasoning of the D.C. Circuit in Lewis, it is far from clear that Section 66 of the Restatement (Second) calls for the effect-of-judgment approach. This section refers to a rule of law being enforceable against a state, but the D.C. Circuit treated it as if it were referring only to situations in which a judgment is enforceable against a foreign state. When a court holds that an official has violated international human rights law for conduct carried out on behalf of their state, that can reasonably be characterized as enforcing the rule against the state, since states act through their officials. That would be true regardless of whether the damages judgment operates only against the official.Footnote ⁸² As one court explained in concluding that a suit against Nigerian military and police officials would involve enforcing a rule against the state even though the damages were sought from the officials personally: “The defendants’ alleged actions were part of their official duties within the Nigerian government, military, and police. . . . A decision by this Court on the legality of the defendants’ actions would amount to a decision on the legality of Nigeria's actions.”Footnote ⁸³

The only example that Section 66 gives of a situation in which immunity should not apply involves a traffic accident occurring in the United States, but that example does not support a lack of immunity from international human rights suits. Under the FSIA, there is not even sovereign immunity for traffic accidents in the United States; indeed, it is the primary example in the FSIA's legislative history of when tort liability for foreign sovereigns would be appropriate.Footnote ⁸⁴ But it is well established that, absent a specific statutory exception (such as for certain claims relating to terrorism), FSIA immunity applies to international human rights claims, even for jus cogens violations.Footnote ⁸⁵ Moreover, a traffic accident typically involves negligence by the driver, not any policy decision by the foreign state, so allowing for liability against the official does not constitute a challenge to foreign state action in the way that international human rights suits tend to do.Footnote ⁸⁶

More fundamentally, the effect-of-judgment approach gives insufficient attention to the foreign relations context implicated by these suits. In effect, this approach mimics the approach taken by U.S. courts in domestic civil rights cases, but there are significant differences between these two contexts.

As an initial matter, the foreign official immunity context implicates U.S. responsibilities under international law. As noted in Part II, there can be and are reasonable debates about the contours of the customary international law of foreign official immunity. Its existence, however, introduces a factor that is absent from the domestic civil rights context. And it is possible that the effect-of-judgment approach, at least in some cases, is inconsistent with international law. U.S. courts have long attempted to construe federal statutes in a way that will avoid violations of international law, and there is a strong argument for applying a similar presumption to federal common law rules developed by the courts themselves.Footnote ⁸⁷

The effect-of-judgment approach also may have the effect of undermining foreign state immunity. It is well established that nations are entitled under international law to broad immunity from suit in other nations’ courts, especially for noncommercial conduct. In a case between Germany and Italy, for example, the International Court of Justice held in 2012 that there is sovereign immunity in other nations’ courts even for the most egregious human rights violations.Footnote ⁸⁸ Yet nations always act through their officials, and they are broadly responsible under international law for the actions of the officials, even when the officials abuse their authority.Footnote ⁸⁹ If the officials could freely be sued for the actions they take on behalf of the state, the foreign government's immunity could be significantly compromised. To be sure, as some commentators have emphasized, a state's responsibility for an official's conduct should not by itself relieve an official of his or her own responsibility under international law for the conduct.Footnote ⁹⁰ That an individual official may bear their own responsibility for the conduct, however, does not establish that another nation's court should be the adjudicator of that responsibility.Footnote ⁹¹

Even apart from the specific question of what international law requires, suits against foreign officials present issues of foreign relations friction and reciprocity that are not posed by domestic suits. The Supreme Court has made clear that when such foreign affairs implications are present, the doctrinal considerations when seeking remedies are substantially altered. It did so, for example, in its recent decision in Hernandez v. Mesa.Footnote ⁹² That case involved a cross-border shooting by a U.S. customs officer that resulted in the death of a teenager in Mexico. In declining to allow a damages claim against the officer, the Court emphasized that the foreign affairs context of the case was a factor that “counsels hesitation.”Footnote ⁹³ It also noted that the case implicated potentially conflicting interests of Mexico and the United States and that it was not the Court's “task to arbitrate between them.”Footnote ⁹⁴ The Supreme Court has invoked similar foreign relations considerations as part of its justification for curtailing litigation under the ATS in recent years.Footnote ⁹⁵

Not only are there policies at stake not presented in domestic civil rights litigation, but that litigation is also premised on policies that are absent from the foreign official immunity context. As noted above, the domestic immunity regime is premised on the idea that the federal courts have the role of ensuring that federal and state actors comply with the supreme federal Constitution. That is the basis for the “fiction” whereby abuses by state officials are not deemed to be actions by the state for purposes of state immunity. It is not clear, however, that the federal courts do or should have a comparable role of ensuring that foreign officials comply with international human rights law. As the Supreme Court has observed, “it is one thing for American courts to enforce constitutional limits on our own State and Federal Governments’ power, but quite another to consider suits under rules that would go so far as to claim a limit on the power of foreign governments over their own citizens, and to hold that a foreign government or its agent has transgressed those limits.”Footnote ⁹⁶ There is consequently no analogue in international human rights litigation to the Ex parte Young doctrine: courts assume that it would not be appropriate to enjoin foreign government actors from conduct in their own countries.Footnote ⁹⁷ International human rights litigation therefore tends to involve only requests for damages, not equitable relief.

Moreover, in the domestic context, the Supreme Court has developed a “qualified immunity” doctrine that shields domestic officials from damage claims unless it is shown that they violated “clearly established” federal rights “of which a reasonable person would have known”Footnote ⁹⁸—a doctrine that the Court has described as resulting from “the balancing of ‘fundamentally antagonistic social policies.’”Footnote ⁹⁹ Although the doctrine is controversial, it has been widely applied by the courts, and it serves to substantially reduce the exposure of domestic officials to liability in personal capacity lawsuits. There is no comparable immunity doctrine for suits against foreign officials, however, making it hazardous to try to replicate the domestic regime in the foreign official immunity context.Footnote ¹⁰⁰

C. What About the TVPA?

For the above reasons, this Editorial Comment contends that courts should (like the court in Doğan) apply the nature-of-act approach to foreign official immunity rather than the effect-of-judgment approach. The most challenging question in applying the nature-of-act approach is its relationship to the TVPA.

Although a difficult question, I conclude that the TVPA is best read not to displace the common law of foreign official immunity, even for alleged acts that violate the provisions of the statute. The text of the TVPA does not mention immunity, and statutes are normally assumed not to displace the common law by implication—a proposition that the Court in Samantar itself referenced.Footnote ¹⁰¹ Thus, for example, federal common law immunities apply to suits brought under the civil right statute, 42 U.S.C. § 1983. This is true even though Section 1983, like the TVPA, applies only to official actions. The Supreme Court has stated that the common law immunities should be presumed to continue to operate absent a “clear indication” that Congress meant to abolish them,Footnote ¹⁰² and it has developed and refined these immunities (especially qualified immunity) after Section 1983's enactment. Moreover, the Court in Samantar accepted that a common law of foreign official immunity pre-dated even the FSIA's enactment, which was well before the enactment of the TVPA.Footnote ¹⁰³

Nor can one find such a clear indication to override immunity in the TVPA's legislative history. There are statements in the House and Senate reports indicating that the statute was not intended to override diplomatic immunity or head-of-state immunity.Footnote ¹⁰⁴ The reports do not mention conduct immunity, and there are suggestions that Congress did not expect that former officials would be entitled to immunity in suits brought under the statute.Footnote ¹⁰⁵ However, the TVPA was enacted when some lower courts were applying the FSIA to suits brought against individual officials, and the legislative history appears to assume that the FSIA would govern this issue, and that its requirements would typically not be satisfied in suits against former officials.Footnote ¹⁰⁶ The Supreme Court in Samantar has since concluded that the issue is governed by common law rather than the FSIA, and the legislative history does not address the statute's relationship to that common law. In any event, even the outdated assumptions about the applicability of the FSIA in the legislative history do not indicate that Congress was attempting to abrogate any immunity that would otherwise apply. It is also worth noting that the executive branch, which is attuned to the foreign relations considerations presented in these cases, has consistently declined to construe the TVPA as abrogating conduct immunity.Footnote ¹⁰⁷

Treating the TVPA as overriding conduct immunity would also potentially violate customary international law. As noted in Part II, there are currently debates about the scope of conduct immunity under customary international law, especially in criminal cases, but there is still substantial support for applying it even to egregious human rights abuses, especially in civil cases. Moreover, the debates have concerned the nature of the acts that qualify for conduct immunity, not whether the judgment would be directly enforceable against a foreign state. As noted earlier, under the Charming Betsy canon of construction, federal statutes are supposed to be construed where fairly possible not to violate international law.Footnote ¹⁰⁸ Although the state of international law is uncertain on this issue, that uncertainty itself is a reason not to construe the TVPA as overriding immunity by implication: it will not violate international law to confer immunity, but it might violate international law not to do so.Footnote ¹⁰⁹ To put it differently, even if it seems normatively desirable to push the international law of immunity in a less protective direction, it is doubtful that U.S. courts, without any clear direction from Congress and any support from the executive branch, should be leading that effort.

The best argument for treating the TVPA as an override of the common law of foreign official immunity is the concern that, otherwise, the statute would in effect be a nullity. The statute applies only to acts of torture and killing carried out under “actual or apparent authority, or color of law, of any foreign nation,” so if there is conduct immunity for all such acts, then the statute would have no effect. Implicitly, the argument goes, Congress must have intended to displace any common law conduct immunity that would otherwise apply. This was the reasoning, for example, of Judge Randolph in his concurrence in Lewis v. Mutond. As he noted, “the [TVPA] thus imposes liability for actions that would render the foreign official eligible for immunity under the Restatement.”Footnote ¹¹⁰ “When there is such a clear conflict between statutory law and judge-made common law,” Randolph argued, “the common law must give way.”Footnote ¹¹¹

This is a powerful argument, which is why this is a close question. As other courts have noted, however, the TVPA would still have some effect even without overriding a broad common law of foreign official immunity. Even under the nature-of-act approach, conduct immunity could be denied if the defendant's alleged actions, while carried out under color of law or with apparent authority, were not within the outer bounds of the defendant's official responsibilities.Footnote ¹¹² This might be confirmed if the foreign state informed the court that the alleged actions were not taken in an official capacity, an intervention that Congress may have expected to be common in TVPA cases.Footnote ¹¹³ In fact, it might make sense for courts to require that foreign states specifically affirm that a defendant was acting in an official capacity as a prerequisite for receiving conduct immunity. By linking conduct immunity to the foreign state's willingness to accept responsibility for the conduct, the TVPA, as one court noted, would “impose[] liability on true outlaws, i.e., individuals who commit acts for which no foreign sovereign is willing to accept responsibility—but not individuals whose conduct is authorized.”Footnote ¹¹⁴ In any event, even for official acts, there would be no immunity under the TVPA if the foreign state decided to expressly waive the immunity. Like other immunities, foreign official immunity is freely waivable by the official's state, and states do sometimes waive this immunity, especially after a regime change.Footnote ¹¹⁵ Finally, if the executive has the authority to make binding suggestions of non-immunity, as some courts have reasoned,Footnote ¹¹⁶ then the statute would still be effective in that circumstance as well.