SAMANTAR v. YOUSUF: DEVELOPMENT IN THE LAWS GOVERNING CIVIL TORTURE CLAIMS IN U.S. COURTS.

Solomon Shinerock

Abstract

The Supreme Court’s recent opinion in Samantar v. Yousuf forecloses one possible avenue by which former foreign-government officials residing in the United States have sought to escape liability for human rights violations. Ruling simply that the Foreign Sovereign Immunities Act of 1976 does not provide immunity to individuals, the decision raises the question of what common law principles will govern the issue in the future. This article reviews the case and the common law doctrines that are likely to figure prominently in future civil suits alleging torture. Ultimately, the Samantar decision read together with existing principles of domestic and international law indicate the beginning contours of a more sophisticated regime of immunity. Under that regime, perpetrators of torture residing in the United States will not be immune from legitimate lawsuits on the basis of their former status as foreign officials where the pursuit of such claims does not interfere with the executive’s pursuit of foreign policy objectives.