PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BASHE ABDI YOUSUF; JOHN DOE 1; 

JOHN DOE 2; AZIZ DERIA,

Plaintiffs-Appellees,

and

JOHN DOE 3; JOHN DOE 4; JANE

DOE 1,

Plaintiffs,  No. 11-1479

v.

MOHAMED ALI SAMANTAR,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Amicus Supporting Appellees. 

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Leonie M. Brinkema, District Judge.

(1:04-cv-01360-LMB-JFA)

Argued: May 16, 2012

Decided: November 2, 2012

Before TRAXLER, Chief Judge, and KING and DUNCAN,

Circuit Judges.
Affirmed by published opinion. Chief Judge Traxler wrote the

opinion, in which Judge King and Judge Duncan joined.

COUNSEL

ARGUED: Joseph Peter Drennan, Alexandria, Virginia, for

Appellant. James Edward Tysse, AKIN, GUMP, STRAUSS,

HAUER & FELD, LLP, Washington, D.C., for Appellees.

Lewis Yelin, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Amicus Supporting Appellees.

ON BRIEF: Natasha E. Fain, CENTER FOR JUSTICE &

ACCOUNTABILITY, San Francisco, California; Patricia A.

Millett, Steven H. Schulman, AKIN, GUMP, STRAUSS,

HAUER & FELD, LLP, Washington, D.C., for Appellees.

Harold Hongju Koh, Legal Adviser, DEPARTMENT OF

STATE, Washington, D.C.; Tony West, Assistant Attorney

General, Douglas N. Letter, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Neil H. MacBride,

United States Attorney, Alexandria, Virginia, for Amicus

Supporting Appellees. 

OPINION

TRAXLER, Chief Judge:

For the second time in this case, we are presented with the

question of whether Appellant Mohamed Ali Samantar enjoys

immunity from suit under the Torture Victim Protection Act

of 1991 ("TVPA"), see Pub. L. 102-256, 106 Stat. 73 (1992),

28 U.S.C. § 1350 note, and the Alien Tort Statute ("ATS"),

see 28 U.S.C. § 1350. In the previous appeal, we rejected

Samantar’s claim to statutory immunity under the Foreign

Sovereign Immunities Act ("FSIA"), see 28 U.S.C. §§ 1602-

1611, but held open the possibility that Samantar could "successfully invoke an immunity doctrine arising under pre-FSIA

2 YOUSUF v. SAMANTAR,
common law." Yousuf v. Samantar, 552 F.3d 371, 383-84 (4th

Cir. 2009). The Supreme Court affirmed our reading of the

FSIA and likewise suggested Samantar would have the opportunity to assert common law immunity on remand. See

Samantar v. Yousuf, 130 S. Ct. 2278, 2293 (2010) (noting that

the viability of a common law immunity defense was a "matter[ ] to be addressed in the first instance by the District

Court"). 

On remand to the district court, Samantar sought dismissal

of the claims against him based on common law immunities

afforded to heads of state and also to other foreign officials

for acts performed in their official capacity. The district court

rejected his claims for immunity and denied the motion to dismiss. See Yousuf v. Samantar, 2011 WL 7445583 (E.D. Va.

Feb. 15, 2011). For the reasons that follow, we agree with the

district court and affirm its decision. 

I.

Because our previous opinion recounted the underlying

facts at length, see Samantar, 552 F.3d at 373-74, we will

provide only a brief summary here. Samantar was a highranking government official in Somalia while the military

regime of General Mohamed Barre held power from about

1969 to 1991. Plaintiffs are natives of Somalia and members

of the "prosperous and well-educated Isaaq clan, which the

[Barre] government viewed as a threat." Id. at 373. Plaintiffs

allege that they, or members of their families, were subjected

to "torture, arbitrary detention and extrajudicial killing" by

government agents under the command and control of Samantar, who served as "Minister of Defense from January 1980 to

December 1986, and as Prime Minister from January 1987 to

September 1990." Id. at 374 (internal quotation marks omitted). Following the collapse of the Barre regime in January

1991, Samantar fled Somalia for the United States. He now

resides in Virginia as a permanent legal resident. Two of the

YOUSUF v. SAMANTAR, 3
plaintiffs also reside in the United States, having become naturalized citizens.

Plaintiffs brought a civil action against Samantar under the

TVPA and the ATS. See 28 U.S.C. § 1350 and note. Samantar

moved to dismiss plaintiffs’ claims on the ground that he was

immune from suit under the FSIA, and the district court dismissed the case. This court reversed, however, concluding

that the FSIA applies to sovereign states but not "to individual

foreign government agents." Samantar, 552 F.3d at 381. We

remanded the case for the district court to consider whether

Samantar could "successfully invoke an immunity doctrine

arising under pre-FSIA common law." Id. at 383-84. 

The Supreme Court granted Samantar’s petition for certiorari and affirmed our decision, holding that the FSIA—based

on its text, purpose and history—governs only foreign state

sovereign immunity, not the immunity of individual officials.

See Samantar, 130 S. Ct. at 2289 ("Reading the FSIA as a

whole, there is nothing to suggest we should read ‘foreign

state’ in § 1603(a) to include an official acting on behalf of

the foreign state, and much to indicate that this meaning was

not what Congress enacted."). It is now clear after Samantar

that the common law, not the FSIA, governs the claims to

immunity of individual foreign officials. See id. at 2292

("[W]e think this case, in which respondents have sued

[Samantar] in his personal capacity and seek damages from

his own pockets, is properly governed by the common law

because it is not a claim against a foreign state as the [FSIA]

defines that term."). 

On remand, Samantar renewed his motion to dismiss based

on two common law immunity doctrines. First, Samantar

alleged he was entitled to head-of-state immunity because at

least some of the alleged wrongdoing occurred while Samantar was Prime Minister. Second, Samantar sought foreign official immunity on the basis that any actions for which the

4 YOUSUF v. SAMANTAR,
plaintiffs sought to hold him responsible were taken in the

course and scope of his official duties. 

The district court renewed its request to the State Department for a response to Samantar’s immunity claims. Despite

having remained silent during Samantar’s first appeal, the

State Department here took a position expressly opposing

immunity for Samantar. The United States submitted to the

district court a Statement of Interest (SOI) announcing that

the Department of State, having considered "the potential

impact of such a[n] [immunity] decision on the foreign relations interests of the United States," J.A. 73, had determined

that Samantar was not entitled to immunity from plaintiffs’

lawsuit. The SOI indicated that two factors were particularly

important to the State Department’s determination that

Samantar should not enjoy immunity. First, the State Department concluded that Samantar’s claim for immunity was

undermined by the fact that he "is a former official of a state

with no currently recognized government to request immunity

on his behalf," or to take a position as to "whether the acts in

question were taken in an official capacity." J.A. 71. Noting

that "[t]he immunity protecting foreign officials for their official acts ultimately belongs to the sovereign rather than the

official," J.A. 71, the government reasoned that Samantar

should not be afforded immunity "[i]n the absence of a recognized government . . . to assert or waive [Samantar’s] immunity," J.A. 73. Second, Samantar’s status as a permanent legal

resident was particularly relevant to the State Department’s

immunity determination. According to the SOI, "U.S. residents like Samantar who enjoy the protections of U.S. law

ordinarily should be subject to the jurisdiction of our courts,

particularly when sued by U.S. residents" or naturalized citizens such as two of the plaintiffs. J.A. 71. 

The district court denied Samantar’s motion to dismiss,

apparently viewing the Department of State’s position as controlling and surrendering jurisdiction over the issue to the

State Department: "The government has determined that the

YOUSUF v. SAMANTAR, 5
defendant does not have foreign official immunity. Accordingly, defendant’s common law sovereign immunity defense

is no longer before the Court, which will now proceed to consider the remaining issues in defendant’s Motion to Dismiss."

Samantar, 2011 WL 7445583, at *1. But, in denying Samantar’s subsequent motion to reconsider, the district court

implied that it performed its own analysis and merely took the

State Department’s view into account: "The Executive Branch

has spoken on this issue and . . . [is] entitled to a great deal

of deference. They don’t control but they are entitled to deference in this case." J.A. 81 (emphasis added). The district

court noted that both "the residency of the defendant" and "the

lack of a recognized government" were factors properly considered in the immunity calculus. J.A. 82.

Samantar immediately appealed the district court’s denial

of common law immunity.1 Samantar advances a two-fold

argument. First, he contends that the order denying him

immunity cannot stand because the district court improperly

deferred to the Department of State and abdicated its duty to

independently assess his immunity claim. In contrast to the

view offered by the United States in its amicus brief that the

State Department is owed absolute deference from the courts

on any question of foreign sovereign immunity, Samantar

claims that deference to the Executive’s immunity determination is appropriate only when the State Department recommends that immunity be granted. Second, Samantar argues

that under the common law, he is entitled to immunity for all

actions taken within the scope of his duties and in his capacity

as a foreign government official, and that he is immune to any

1A pretrial order denying sovereign immunity is immediately appealable

under the collateral-order exception to the final judgment rule. See Cohen

v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949). This court has

previously determined that an order denying a claim of sovereign immunity under the FSIA is immediately appealable. See Rux v. Republic of

Sudan, 461 F.3d 461, 467 n.1 (4th Cir. 2006). We see no reason to draw

a distinction in this regard for orders denying claims of sovereign immunity under the common law. 

6 YOUSUF v. SAMANTAR,
claims alleging wrongdoing while he was the Somali Prime

Minister. We address these arguments below. 

II.

Before proceeding further, we must decide the appropriate

level of deference courts should give the Executive Branch’s

view on case-specific questions of individual foreign sovereign immunity. The FSIA displaced the common law regime

for resolving questions of foreign state immunity and shifted

the Executive’s role as primary decision maker to the courts.

See Samantar, 130 S. Ct. at 2285. After Samantar, it is clear

that the FSIA did no such thing with respect to the immunity

of individual foreign officials; the common law, not the FSIA,

continues to govern foreign official immunity. See id. at 2292.

And, in light of the continued viability of the common law for

such claims, the Court saw "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" under the common law. Id. at 2291. The extent

of the State Department’s role, however, depends in large part

on what kind of immunity has been asserted. 

A.

In this case, Samantar claims two forms of immunity: (1)

head-of-state immunity and (2) "foreign official" or "official

acts" immunity. "Head-of-state immunity is a doctrine of customary international law" pursuant to which an incumbent

"head of state is immune from the jurisdiction of a foreign

state’s courts." In re Grand Jury Proceedings, 817 F.2d 1108,

1110 (4th Cir. 1987). "Like the related doctrine of sovereign

[state] immunity, the rationale of head-of-state immunity is to

promote comity among nations by ensuring that leaders can

perform their duties without being subject to detention, arrest

or embarrassment in a foreign country’s legal system." Id.

YOUSUF v. SAMANTAR, 7
"A head-of-state recognized by the United States government is absolutely immune from personal jurisdiction in

United States courts unless that immunity has been waived by

statute or by the foreign government recognized by the United

States." Lafontant v. Aristide, 844 F. Supp. 128, 131-32

(E.D.N.Y. 1994). Although all forms of individual immunity

derive from the State, head-of-state immunity is tied closely

to the sovereign immunity of foreign states. See Restatement

(Second) of Foreign Relations Law § 66(b) ("The immunity of

a foreign state . . . extends to . . . its head of state"). Indeed,

head-of-state immunity "is premised on the concept that a

state and its ruler are one for purposes of immunity." Lafontant, 844 F. Supp. at 132.2

Samantar also seeks immunity on the separate ground that

all of the actions for which plaintiffs seek to hold him liable

occurred during the course of his official duties within the

Somali government. See Restatement (Second) of Foreign

Relations Law § 66(f) (stating that "[t]he immunity of a foreign state . . . extends to . . . any . . . public minister, official,

or agent of the state with respect to acts performed in his official capacity if the effect of exercising jurisdiction would be

to enforce a rule of law against the state"); Matar v. Dichter,

563 F.3d 9, 14 (2d Cir. 2009) ("At the time the FSIA was

enacted, the common law of foreign sovereign immunity recognized an individual official’s entitlement to immunity for

acts performed in his official capacity.") (internal quotation

marks omitted); Samantar, 130 S. Ct. at 2290-91 ("[W]e do

not doubt that in some circumstances the immunity of the foreign state extends to an individual for acts taken in his official

capacity."). This is a conduct-based immunity that applies to

2

"Under customary international law, head of state immunity encompasses the immunity of not only the heads of state but also of other ‘holders of high-ranking office in a State’ such as ‘the Head of Government and

Minister of Foreign Affairs.’" Lewis S. Yelin, Head of State Immunity As

Sole Executive Lawmaking, 44 Vand. J. Transnat’l L. 911, 921 n.42

(2011). 

8 YOUSUF v. SAMANTAR,
current and former foreign officials. See Matar, 563 F.3d at

14 ("An immunity based on acts—rather than status—does

not depend on tenure in office."). 

B.

The United States, participating as amicus curiae, takes the

position that federal courts owe absolute deference to the

State Department’s view of whether a foreign official is entitled to sovereign immunity on either ground. According to the

government, under long-established Supreme Court precedent, the State Department’s opinion on any foreign immunity

issue is binding upon the courts. The State Department’s position allows for the federal courts to function as independent

decision makers on foreign sovereign immunity questions in

only one instance: when the State Department remains silent

on a particular case.3 Thus, the United States contends that the

State Department resolved the issues once it presented the district court with its view that Samantar was not entitled to

immunity. 

Samantar, by contrast, advocates the view that deference to

the Executive’s immunity determination is required only when

the State Department explicitly recommends that immunity be

granted. Samantar argues that when the State Department

concludes, as it did in this case, that a foreign official is not

entitled to immunity or remains silent on the issue, courts can

and must decide independently whether to grant immunity.

And, the plaintiffs offer yet a third view, suggesting that the

State Department’s position on foreign sovereign immunity

does not completely control, but that courts must defer "to the

reasonable views of the Executive Branch" regardless of

whether the State Department suggests that immunity be

3Even then, however, the State Department insists that the courts must

fashion a decision based on principles that it has articulated. See Samantar, 130 S. Ct. at 2284. In making this argument, the government fails to

distinguish between status-based and conduct-based immunity. 

YOUSUF v. SAMANTAR, 9
granted or denied. Appellees’ Response Brief at 20. In this

case, plaintiffs contend the State Department’s rationale for

urging denial of immunity, as set forth in its SOI, was reasonable and that the district court properly deferred to it.

1. Executive’s Pre-FSIA Role in Foreign State Immunity

We begin by observing that, although the doctrine of foreign sovereign immunity has well-established roots in American jurisprudence, the Executive Branch’s assumption of the

role of primary decision-maker on various foreign sovereign

immunity matters is of a more recent vintage. Foreign sovereign immunity, insofar as American courts are concerned, has

its doctrinal roots in The Schooner Exchange v. McFaddon,

11 U.S. (7 Cranch) 116 (1812), which ushered in nearly a century of "absolute" or "classical" immunity, "under which a

sovereign [could not], without his consent, be made a respondent in the courts of another sovereign." Permanent Mission

of India to the United Nations v. City of New York, 551 U.S.

193, 199 (2007) (internal quotation marks omitted); see

Samantar, 130 S. Ct. at 2284 (explaining The Schooner

Exchange "was interpreted as extending virtually absolute

immunity to foreign sovereigns as a matter of grace and comity") (internal quotation marks omitted).4

 "Absolute" immunity for the foreign sovereign, however, is not to be confused

with absolute judicial deference to the Executive Branch. In

fact, during the lengthy period of absolute immunity, courts

did not necessarily consider themselves obliged to follow

executive pronouncements regarding immunity. In The

Schooner Exchange itself, for example, the Court received

and considered the view of the Executive Branch on the

immunity claim but conducted its own independent review of

4For nearly a century, "foreign sovereigns in national courts enjoyed a

high level of immunity and exceptions, if any, were not widely recognized." Wuerth, Ingrid, Foreign Official Immunity Determinations in U.S.

Courts: The Case Against the State Dep’t, 51 Va. J. Int’l Law 915, 925

(2011). 

10 YOUSUF v. SAMANTAR,
the relevant international law doctrines. See 11 U.S. (7

Cranch) at 132-35; 136-47. As late as the 1920s, the Court

still did not necessarily view questions of foreign sovereign

immunity as matters solely for the Executive Branch. For

example, the Court in Berizzi Bros. Co. v. Steamship Pesaro,

271 U.S. 562, 576 (1926), concluded that a steamship owned

by a foreign sovereign was entitled to immunity despite the

fact that the Secretary of State had expressed the opposite

view earlier in the litigation. See The Pesaro, 277 F. 473, 479

n.3 (S.D.N.Y. 1921). 

It was not until the late 1930s—in the context of in rem

actions against foreign ships—that judicial deference to executive foreign immunity determinations emerged as standard

practice. See Compania Espanola de Navegacion Maritima,

S.A. v. The Navemar, 303 U.S. 68, 74 (1938) ("If the claim is

recognized and allowed by the executive branch of the government, it is then the duty of the courts to release the vessel

upon appropriate suggestion by the Attorney General of the

United States, or other officer acting under his direction."); Ex

parte Republic of Peru, 318 U.S. 578, 587-89 (1943); Republic of Mexico v. Hoffman, 324 U.S. 30, 34-36 (1945). Citing

a line of cases involving ships owned by foreign sovereigns,

Samantar explained that 

a two-step procedure developed for resolving a foreign state’s claim of sovereign immunity, typically

asserted on behalf of seized vessels. See, e.g.,

Republic of Mexico v. Hoffman, 324 U.S. 30, 34–36

(1945); Ex parte Peru, 318 U.S. 578, 587–589

(1943); Compania Espanola de Navegacion Maritima, S.A. v. The Navemar, 303 U.S. 68, 74–75

(1938). Under that procedure, the diplomatic representative of the sovereign could request a "suggestion of immunity" from the State Department. Ex

parte Peru, 318 U.S. at 581. If the request was

granted, the district court surrendered its jurisdiction.

Id. at 588; see also Hoffman, 324 U.S. at 34. But "in

YOUSUF v. SAMANTAR, 11
the absence of recognition of the immunity by the

Department of State," a district court "had authority

to decide for itself whether all the requisites for such

immunity existed." Ex parte Peru, 318 U.S. at 587;

see also Compania Espanola, 303 U.S. at 75

(approving judicial inquiry into sovereign immunity

when the "Department of State . . . declined to act");

Heaney v. Government of Spain, 445 F.2d 501, 503,

and n.2 (2d Cir. 1971) (evaluating sovereign immunity when the State Department had not responded to

a request for its views). In making that decision, a

district court inquired "whether the ground of immunity is one which it is the established policy of the

[State Department] to recognize." Hoffman, 324 U.S.

at 36.

Samantar, 130 S. Ct. at 2284 (citations omitted; alteration in

original). Subsequently, there was a shift in State Department

policy from a theory of absolute immunity to restrictive

immunity, but this shift "had little, if any, impact on federal

courts’ approach to immunity analyses . . . and courts continued to abide by that Department’s suggestions of immunity."

Republic of Austria v. Altmann, 541 U.S. 677, 690 (2004)

(internal quotation marks and alteration omitted).5 Thus, at the

time that Congress enacted the FSIA, the clearly established

5

Interestingly, even at this point the State Department expressed uncertainty about the relationship between the executive and judicial branches

on questions of foreign sovereign immunity. The State Department

announced its change in policy through a 1952 letter to the Attorney General from Jack B. Tate, Legal Adviser to the State Department. The "Tate

Letter," as it has come to be known, stated that "[i]t is realized that a shift

in policy by the executive cannot control the courts but it is felt that the

courts are less likely to allow a plea of sovereign immunity where the

executive has declined to do so." See Letter from Jack B. Tate, Acting

Legal Adviser, Dep’t of State, to Philip B. Perlman, Acting Att’y Gen.

(May 19, 1952), 26 Dep’t St. Bull. 984-85 (1952), reprinted in Alfred

Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682, 714 app. 2

(1976). 

12 YOUSUF v. SAMANTAR,
practice of judicial deference to executive immunity determinations had been expressed largely in admiralty cases. 

In this pre-FSIA era, decisions involving claims of individual foreign sovereign immunity were scarce. See Samantar,

130 S. Ct. at 2291 (noting that "questions of official immunity

. . . in the pre-FSIA period . . . were few and far between").

But, to the extent such individual claims arose, they generally

involved status-based immunities such as head-of-state immunity, see, e.g., Ye v. Zemin, 383 F.3d 620, 624-25 (7th Cir.

2004), or diplomatic immunity arising under international

treaties, see Vienna Convention on Consular Relations art. 43,

Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261; Vienna Convention on Diplomatic Relations art. 31, Apr. 18, 1961, 23

U.S.T. 3227, 500 U.N.T.S. 95. The rare cases involving

immunity asserted by lower-level foreign officials provided

inconsistent results. See generally Chimene I. Keitner, The

Common Law of Foreign Official Immunity, 14 Green Bag 2d

61 (2010) [hereinafter Keitner]. 

2. Executive Power

The Constitution assigns the power to "receive Ambassadors and other public Ministers" to the Executive Branch,

U.S. Const. art. II, § 3, which includes, by implication, the

power to accredit diplomats and recognize foreign heads of

state. Courts have generally treated executive "suggestions of

immunity" for heads of state as a function of the Executive’s

constitutional power and, therefore, as controlling on the judiciary. See, e.g., Ye, 383 F.3d at 626 ("[A] determination by

the Executive Branch that a foreign head of state is immune

from suit is conclusive and a court must accept such a determination without reference to the underlying claims of a

plaintiff."); Doe v. State of Israel, 400 F. Supp. 2d 86, 111

(D.D.C. 2005) ("When, as here, the Executive has filed a Suggestion of Immunity as to a recognized head of a foreign state,

the jurisdiction of the Judicial Branch immediately ceases.");

United States v. Noriega, 117 F.3d 1206, 1212 (11th Cir.

YOUSUF v. SAMANTAR, 13
1997) (deferring to the Executive Branch where it "manifested its clear sentiment that Noriega should be denied headof-state immunity"); see generally Keitner, 14 Green Bag 2d

at 71 (reasoning that "[c]ourts should treat Executive representations about status-based immunity as conclusive because

they are a function of the Executive’s power under Article II,

section 3 of the Constitution"). Like diplomatic immunity,

head-of-state immunity involves "a formal act of recognition,"

that is "a quintessentially executive function" for which absolute deference is proper. Peter B. Rutledge, Samantar, Official

Immunity & Federal Common Law, 15 Lewis & Clark L. Rev.

589, 606 (2011). 

Accordingly, consistent with the Executive’s constitutionally delegated powers and the historical practice of the courts,

we conclude that the State Department’s pronouncement as to

head-of-state immunity is entitled to absolute deference. The

State Department has never recognized Samantar as the head

of state for Somalia; indeed, the State Department does not

recognize the Transitional Federal Government or any other

entity as the official government of Somalia, from which

immunity would derive in the first place. The district court

properly deferred to the State Department’s position that

Samantar be denied head-of-state immunity. 

Unlike head-of-state immunity and other status-based

immunities, there is no equivalent constitutional basis suggesting that the views of the Executive Branch control questions of foreign official immunity. Such cases do not involve

any act of recognition for which the Executive Branch is constitutionally empowered; rather, they simply involve matters

about the scope of defendant’s official duties. 

This is not to say, however, that the Executive Branch has

no role to play in such suits. These immunity decisions 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. See Sosa v.

14 YOUSUF v. SAMANTAR,
Alvarez-Machain, 542 U.S. 692, 733 n.21 (2004) (noting that

"there is a strong argument that federal courts should give

serious weight to the Executive Branch’s view of [a] case’s

impact on foreign policy"); Altmann, 541 U.S. at 702 (suggesting that with respect to foreign sovereign immunity,

"should the State Department choose to express its opinion on

the implications of exercising jurisdiction over particular

petitioners in connection with their alleged conduct, that opinion might well be entitled to deference as the considered judgment of the Executive on a particular question of foreign

policy") (footnote omitted). With respect to foreign official

immunity, the Executive Branch still informs the court about

the diplomatic effect of the court’s exercising jurisdiction

over claims against an official of a foreign state, and the

Executive Branch may urge the court to grant or deny officialact immunity based on such considerations. "That function,

however, concerns the general assessment of a case’s impact

on the foreign relations of the United States," Rutledge, 15

Lewis & Clark L. Rev. at 606, rather than a controlling determination of whether an individual is entitled to conduct-based

immunity. 

In sum, we give absolute deference to the State Department’s position on status-based immunity doctrines such as

head-of-state immunity. The State Department’s determination regarding conduct-based immunity, by contrast, is not

controlling, but it carries substantial weight in our analysis of

the issue. 

III.

A.

We turn to the remaining question of whether Samantar is

entitled to foreign official immunity under the common law.

In considering the contours of foreign official immunity, we

must draw from the relevant principles found in both international and domestic immunity law, as well as the experience

YOUSUF v. SAMANTAR, 15
and judgment of the State Department, to which we give considerable, but not controlling, weight. 

From the earliest Supreme Court decisions, international

law has shaped the development of the common law of foreign sovereign immunity. See The Schooner Exchange, 11

U.S. (7 Cranch) at 136, 145-46 (noting that "a principle of

public law" derived from "common usage" and "common

opinion" that "national ships of war, entering the port of a

friendly power open for their reception, are to be considered

as exempted by the consent of that power from its jurisdiction"); Restatement (Third) of the Foreign Relations Law part

IV, ch. 5, subch. A intro. note ("The immunity of a state from

the jurisdiction of the courts of another state is an undisputed

principle of customary international law."). Indeed, an important purpose of the FSIA was the "codification of international

law at the time of the FSIA’s enactment." Samantar, 130 S.

Ct. at 2289 (internal quotation marks omitted); see id. ("[O]ne

of the primary purposes of the FSIA was to codify the restrictive theory of sovereign immunity, which Congress recognized as consistent with extant international law."). Even after

the FSIA was enacted, international law continued to be relevant to questions of foreign sovereign immunity as the Court

interpreted the FSIA in light of international law. See Permanent Mission of India, 551 U.S. at 200-01. 

As previously noted, customary international law has long

distinguished between status-based immunity afforded to sitting heads-of-state and conduct-based immunity available to

other foreign officials, including former heads-of-state. With

respect to conduct-based immunity, foreign officials are

immune from "claims arising out of their official acts while

in office." Restatement (Third) of Foreign Relations Law

§ 464, reprt. note 14; Matar, 563 F.3d at 14 ("An immunity

based on acts—rather than status—does not depend on tenure

in office."). This type of immunity stands on the foreign official’s actions, not his or her status, and therefore applies

whether the individual is currently a government official or

16 YOUSUF v. SAMANTAR,
not. See Chimene I. Keitner, Officially Immune? A Response

to Bradley and Goldsmith, 36 Yale J. Int’l L. Online 1, *9

(2010) ("Conduct-based immunity is both narrower and

broader than status-based immunity: it is narrower, because it

only provides immunity for specific acts . . . but it is also

broader, because it endures even after an individual has left

office."). This conduct-based immunity for a foreign official

derives from the immunity of the State: "The doctrine of the

imputability of the acts of the individual to the State . . . in

classical law . . . imputes the act solely to the state, who alone

is responsible for its consequence. In consequence any act

performed by the individual as an act of the State enjoys the

immunity which the State enjoys." Hazel Fox, The Law of

State Immunity at 455 (2d ed. 2008). 

At least as early as its decision in Underhill v. Hernandez,

168 U.S. 250, 252 (1897), the Supreme Court embraced the

international law principle that sovereign immunity, which

belongs to a foreign state, extends to an individual official

acting on behalf of that foreign state. By the time the FSIA

was enacted, numerous domestic courts had embraced the

notion, stemming from international law, that "[t]he immunity

of a foreign state . . . extends to . . . any . . . public minister,

official, or agent of the state with respect to acts performed in

his official capacity if the effect of exercising jurisdiction

would be to enforce a rule of law against the state." Restatement (Second) of Foreign Relations Law § 66(f). Although the

context for these cases was different—almost all involved the

erroneous (pre-Samantar) application of the FSIA to individual foreign officials claiming immunity—these decisions are

instructive for post-Samantar questions of common law

immunity. See, e.g., Belhas v. Ya’alon, 515 F.3d 1279, 1285

(D.C. Cir. 2008) (observing that the FSIA had incorporated

the well-settled principle of international law that former officials could still claim immunity for acts performed on behalf

of the government); Chuidian v. Philippine Nat’l Bank, 912

F.2d 1095, 1106 (9th Cir. 1990) (recognizing that an individual is not "entitled to sovereign immunity for acts not comYOUSUF v. SAMANTAR, 17
mitted in his official capacity" and explaining that where "the

officer purports to act as an individual and not as an official,

a suit directed against that action is not a suit against the sovereign") (internal quotation marks omitted); Hilao v. Estate of

Marcos (In re Estate of Ferdinand Marcos, Human Rights

Litigation), 25 F.3d 1467, 1472 (9th Cir. 1994) (stating that

"[i]mmunity is extended to an individual only when acting on

behalf of the state because actions against those individuals

are the practical equivalent of a suit against the sovereign

directly" and that "[a] lawsuit against a foreign official acting

outside the scope of his authority does not implicate any of

the foreign diplomatic concerns involved in bringing suit

against another government in United States courts") (internal

quotation marks omitted); Matar, 563 F.3d at 14 (concluding

that even if Dichter was not entitled to statutory immunity

under the FSIA, he was "nevertheless immune from suit under

common-law principles [i.e., conduct-based foreign official

immunity] that pre-date, and survive, the enactment of that

statute").

These cases sketch out the general contours of official-act

immunity: a foreign official may assert immunity for official

acts performed within the scope of his duty, but not for private acts where "the officer purports to act as an individual

and not as an official, [such that] a suit directed against that

action is not a suit against the sovereign." Chuidian, 912 F.2d

at 1106 (internal quotation marks omitted). A foreign official

or former head-of-state will therefore not be able to assert this

immunity for private acts that are not arguably attributable to

the state, such as drug possession or fraud. See, e.g., In re

Doe, 860 F.2d 40, 45 (2d Cir. 1988) ("[W]ere we to reach the

merits of the issue, we believe there is respectable authority

for denying head-of-state immunity to a former head-of-state

for private or criminal acts in violation of American law.").

18 YOUSUF v. SAMANTAR,
B.

In response, plaintiffs contend that Samantar cannot raise

this immunity as a shield against atrocities such as torture,

genocide, indiscriminate executions and prolonged arbitrary

imprisonment or any other act that would violate a jus cogens

norm of international law. A jus cogens norm, also known as

a "peremptory norm of general international law," can be

defined as "a norm 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." Vienna Convention on the Law of Treaties

art. 53, May 23, 1969, 1155 U.N.T.S. 331; see Siderman de

Blake v. Republic of Argentina, 965 F.2d 699, 714 (9th Cir.

1992) (adopting same definition). Prohibitions against the acts

involved in this case—torture, summary execution and prolonged arbitrary imprisonment—are among these universally

agreed-upon norms. See, e.g., Evan J. Criddle & Evan FoxDecent, A Fiduciary Theory of Jus Cogens, 34 Yale J. Int’l L.

331, 331 (2009) (explaining that "jus cogens . . . include[s],

at a minimum, the prohibitions against genocide; slavery or

slave trade; murder or disappearance of individuals; torture or

other cruel, inhuman, or degrading treatment or punishment;

prolonged arbitrary detention"); Tel–Oren v. Libyan Arab

Republic, 726 F.2d 774, 791 n.20 (D.C. Cir. 1984) (Edwards,

J., concurring) ("On the basis of international covenants,

agreements and declarations, commentators have identified at

least four acts that are now subject to unequivocal international condemnation: torture, summary execution, genocide

and slavery."); Restatement (Third) of Foreign Relations Law

§ 702 and cmt. n (identifying murder, torture and "prolonged

arbitrary detention" as jus cogens violations). Unlike private

acts that do not come within the scope of foreign official

immunity, jus cogens violations may well be committed under

color of law and, in that sense, constitute acts performed in

the course of the foreign official’s employment by the Sovereign. However, as a matter of international and domestic law,

jus cogens violations are, by definition, acts that are not officially authorized by the Sovereign. See, e.g., Siderman de

YOUSUF v. SAMANTAR, 19
Blake, 965 F.2d at 718 ("International law does not recognize

an act that violates jus cogens as a sovereign act."); Paul v.

Avril, 812 F. Supp. 207, 212 (S.D. Fla. 1993) ("[A]cts . . . [of

torture, cruel, inhuman and degrading treatment, and arbitrary

detention in violation of customary international law] hardly

qualify as official public acts.").6

There has been an increasing trend in international law to

abrogate foreign official immunity for individuals who commit acts, otherwise attributable to the State, that violate jus

cogens norms—i.e., they commit international crimes or

human rights violations: 

Over the last decade . . . a growing number of

domestic and international judicial decisions have

considered whether a foreign official acts as an arm

of the state, and thus is entitled to conduct immunity,

when that official allegedly violates a jus cogens

norm of international law or commits an international crime. 

Curtis A. Bradley & Laurence R. Helfer, International Law

and the U.S. Common Law of Foreign Official Immunity,

2010 Sup. Ct. Rev. 213, 236-37 (2011). A number of decisions from foreign national courts have reflected a willingness

to deny official-act immunity in the criminal context for

alleged jus cogens violations, most notably the British House

of Lords’ Pinochet decision denying official-acts immunity to

a former Chilean head of state accused of directing widespread torture. See Regina v. Bartle, ex parte Pinochet, 38

I.L.M. 581, 593-95 (H.L. 1999) (concluding that official-acts

6

In spite of this, allegations of jus cogens violations do not overcome

head-of-state or any other status-based immunity. See, e.g., Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of Congo

v. Belgium) (2002) ICJ 3 (concluding that the sitting foreign minister of

the Democratic Republic of Congo was entitled to status-based immunity

against alleged jus cogens violations). 

20 YOUSUF v. SAMANTAR,
immunity is unavailable to shield foreign officials from prosecution for international crimes because acts of torture do not

constitute officially-approved acts). "In the decade following

Pinochet, courts and prosecutors across Europe and elsewhere

. . . commenced criminal proceedings against former officials

of other nations for torture and other violations of jus cogens."

Bradley & Helfer, 2010 Sup. Ct. Rev. at 239. Some foreign

national courts have pierced the veil of official-acts immunity

to hear civil claims alleging jus cogens violations, but the jus

cogens exception appears to be less settled in the civil context. Compare Ferrini v. Germany, Oxford Rep Int’l in Dom

Cts 19 (Italian Ct. of Cassation 2004) (denying "the functional

immunity of foreign state organs" for jus cogens violations in

criminal context), with Jones v. Saudi Arabia, 129 I.L.R. 713,

at ¶ 24 (H.L. 2006) (rejecting jus cogens exception to foreign

official immunity in civil context).

American courts have generally followed the foregoing

trend, concluding that jus cogens violations are not legitimate

official acts and therefore do not merit foreign official immunity but still recognizing that head-of-state immunity, based

on status, is of an absolute nature and applies even against jus

cogens claims. Compare Sarei v. Rio Tinto, PLC, 487 F.3d

1193, 1209 (9th Cir. 2007) (recognizing that acts in "violation[ ] of jus cogens norms . . . cannot constitute official sovereign acts"); Siderman de Blake, 965 F.2d at 718

("International law does not recognize an act that violates jus

cogens as a sovereign act."); Enahoro v. Abubakar, 408 F.3d

877, 893 (7th Cir. 2005) (Cudahy, J., dissenting) ("[O]fficials

receive no immunity for acts that violate international jus

cogens human rights norms (which by definition are not

legally authorized acts)."), with Ye, 383 F.3d at 626-27 (deferring to Executive’s suggestion that head-of-state immunity be

allowed for individual accused of international crimes); Devi

v. Rajapaksa, No. 11 Civ. 6634, 2012 WL 3866495, at *3

(S.D.N.Y. Sept. 4, 2012) (holding that a sitting head of state

is entitled to immunity, even in the context of alleged jus

cogens violations). We conclude that, under international and

YOUSUF v. SAMANTAR, 21
domestic law, officials from other countries are not entitled to

foreign official immunity for jus cogens violations, even if the

acts were performed in the defendant’s official capacity. 

Moreover, we find Congress’s enactment of the TVPA, and

the policies it reflects, to be both instructive and consistent

with our view of the common law regarding these aspects of

jus cogens. Plaintiffs asserted claims against Samantar under

the TVPA which authorizes a civil cause of action against

"[a]n individual who, under actual or apparent authority, or

color of law, of any foreign nation . . . subjects an individual

to torture" or "extrajudicial killing." Pub. L. 102-256, § 2(a),

28 U.S.C. 1350 note. "The TVPA thus recognizes explicitly

what was perhaps implicit in the Act of 1789—that the law

of nations is incorporated into the law of the United States

and that a violation of the international law of human rights

is (at least with regard to torture) ipso facto a violation of U.S.

domestic law." Wiwa v. Royal Dutch Petroleum Co., 226 F.3d

88, 105 (2d Cir. 2000). Thus, in enacting the TVPA, Congress

essentially created an express private right of action for individuals victimized by torture and extrajudicial killing that

constitute violations of jus cogens norms. See S. Rep. No.

102-249, at 8 (1991) ("[B]ecause no state officially condones

torture or extrajudicial killings, few such acts, if any, would

fall under the rubric of ‘official actions’ taken in the course

of an official’s duties."). 

C. SOI from the State Department

In its SOI, the State Department submitted a suggestion of

non-immunity. The SOI highlighted the fact that Samantar "is

a former official of a state with no currently recognized government to request immunity on his behalf" or to take a position as to "whether the acts in question were taken in an

official capacity." J.A. 71. Noting that "[t]he immunity protecting foreign officials for their official acts ultimately

belongs to the sovereign rather than the official," J.A. 71, the

government reasoned that Samantar should not be afforded

22 YOUSUF v. SAMANTAR,
immunity "[i]n the absence of a recognized government . . .

to assert or waive [Samantar’s] immunity," J.A. 73. The second major basis for the State Department’s view that Samantar was not entitled to immunity was Samantar’s status as a

permanent legal resident. According to the SOI, "U.S. residents like Samantar who enjoy the protections of U.S. law

ordinarily should be subject to the jurisdiction of the courts,

particularly when sued by U.S. residents" or naturalized citizens such as two of the plaintiffs. J.A. 71. 

Both of these factors add substantial weight in favor of

denying immunity. Because the State Department has not

officially recognized a Somali government, the court does not

face the usual risk of offending a foreign nation by exercising

jurisdiction over the plaintiffs’ claims. Likewise, as a permanent legal resident, Samantar has a binding tie to the United

States and its court system.

Because this case involves acts that violated jus cogens

norms, including torture, extrajudicial killings and prolonged

arbitrary imprisonment of politically and ethnically disfavored

groups, we conclude that Samantar is not entitled to conductbased official immunity under the common law, which in this

area incorporates international law. Moreover, the SOI has

supplied us with additional reasons to support this conclusion.

Thus, we affirm the district court’s denial of Samantar’s

motion to dismiss based on foreign official immunity.

IV.

For the foregoing reasons, we affirm the district court’s

denial of both head-of-state and foreign official immunity to

Samantar. 

AFFIRMED 

YOUSUF v. SAMANTAR, 23