The quest to bring human rights abusers to justice is a challenge wrought with legal obstacles. One such obstacle is the common law principle of sovereign immunity, under which a foreign nation cannot be sued in a court outside of its own jurisdiction. In 1976, Congress sought to eliminate inconsistent application of such immunity by passing the Foreign Sovereign Immunities Act (FSIA). The inconsistency remained, however, as some circuit courts interpreted the FSIA immunity as applying to both foreign government officials, as well as foreign states. The U.S. Supreme Court settled the issue in 2010 in Samantar v. Yousuf, a civil suit against a former Somali general charged with torture, when it held that FSIA immunity does not apply to foreign officials sued in their individual capacity. While some lauded the decision as a landmark in human rights litigation, such optimism appears misplaced. Because of the various avenues of common law immunity still available to foreign officials, the possibility that the precedent of Samantar will prove to be a valuable tool in bringing justice to abuse victims remains highly remote.
Timothy E. Donahue,
Samantar v. Yousuf: A False Summit in American Human Rights Civil Litigation,
B.C. Int'l & Comp. L. Rev.
E. Supp. 29