Foreign Official Immunity in Selective Common Law Jurisdictions: Jus Cogens Violations and the Executive Branch’s Intervention

Abstract

With regard to civil law cases, foreign official immunity corresponds to the immunity of foreign government officials before the courts of foreign states when they were sued for compensation due to their acts. While government officials act within their official authorization, they may be considered immune from foreign state courts’ jurisdiction. Officials enjoy the immunity for any act subject to certain exceptions. Violation of jus cogens norms can be considered as one of the exceptions to that rule. Principles of international law such as life, physical and mental security, and right to property, the prohibition against torture, genocide, slavery, murder or disappearance of individuals, cruel, inhuman, or degrading treatment or punishment, and prolonged arbitrary detention can be listed as the rules of jus cogens. Despite lack of widely recognized rule on foreign official immunity in case of a jus cogens violation, officials should not hold such immunity from jurisdiction in case of such violations. Different legislations and case law of different countries including Samantar and Jones cases are useful in understanding the concept. Executive branch’s role in dictating on the courts about the state’s position regarding the immunity of foreign states and their officials also represents the current international practice.