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Published online by Cambridge University Press: 27 February 2017
1 Belhas v. Ya'Alon, 515 F.3d 1279, 1282 (D.C. Cir. 2008).
2 Belhas v. Ya'Alon, 466 F.Supp.2d 127, 130 (D.D.C. 2006).
3 Id. at 131.
4 Id. at 129.
5 Id. at 131 (“Because a foreign official is an 'agency or instrumentality' of the foreign state, and agencies and instrumentalities of foreign states are included within the definition of 'foreign state' in the FSIA, the Court concludes that there is no basis in this case to treat individual officials differently from foreign states themselves under the FSIA.”) (internal citations deleted).
6 Id. at 132.
7 Id.
8 Belhas v. Ya'Alon, 515 F.3d 1279, 1283 (D.C. Cir. 2008) (citing El-Fadl v. Cent. Bank of Jordan, 75 F.3d 668, 671 (D.C. Cir. 1996)); Chuidian v. Philippine Nat'I Bank, 912 F.2d 1095, 1101-03 (9th Cir. 1990)).
9 Id. (citing Permanent Mission of India to the United Nations v. City of New York, 127 S. Ct. 2352, 2355 (2007); Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 439 (1989);Princz v. F.R.G.,26F.3d 1166,1169(D.C. Cir. 1994)).
10 Id. at 1284.
11 Id. at 1284-1286.
12 Id at 1286-1288. The Court reached a similar conclusion with respect to conduct alleged to be ultra vires Israeli law, stating that “just as the FSIA carves out no exception for complaints that allege violations of jus cogens norms, it does not create an exception for alleged violations of a foreign state's laws.“ Id. at 1288. Contra Doe v. Qi, 349 F.Supp. 2d 1258, 1287 - 88 (N.D. Cal. 2004) (considering “whether acts by an official which violate the official laws of his or her nation but which are authorized by covert unofficial policy of the state may be deemed to be within the official's scope of authority under the FSIA” and dismissing the Defendants’ claim to immunity because the alleged human rights violations were ‘ ‘inconsist ent with Chinese law“).
13 Id. at 1288-1289.
14 Id. at 1289-1290.
15 Id. at 1290-1293 (Williams, J. concurring). Judge Williams also criticized Appellants’ jus cogens argument because it ‘ ‘merges the merits of the underlying claim with the issue of immunity: if Ya'alon's actions were torture and extrajudicial killing, then they were necessarily unauthorized and he has no claim to immunity; if they were not torture and extrajudicial killing, he would enjoy immunity.” Id. at 1292-1293 (Williams, J. concurring).
16 Paola Gaeta, “Official Capacity and Immunities” in Cassese, Antonio, Gaeta, Paola et al. (eds.), The Rome Statute of the International Criminal Court: A Commentary, vol. 1 (Oxford University Press, New York, 2002), p. 975 CrossRefGoogle Scholar (emphasis in original). For the distinction between immunities ratione materiaeand immunities ratione personae, see infra note and accompanying text.
17 See, e.g., Hwang Geum Joo, et al, v. Japan, 332 F.3d 679, 686-687 (D.C. Cir. 2003).
18 See, e.g., Ferrini v. Federal Republic of Germany, No. 5044, 11 March 2004, in Rivista di diritto internazionale, 2004, Fasc. II, p. 547, para. 9.1; House of Lords, Regina v. Bartle and the Commissioner of Police for the Metropolis and Others Ex Pane Pinochet Ugarte, 24 March 1999, reproduced in International Legal Materials,vol. 38,1999, p. 581,651 (Lord Millet).
19 Byrd v. Corporacion Forestal y Industrial de Olancho S.A., 182 F.3d 380 (5thCir. 1999).
20 Chuidian v. Philippine National Bank, 912 F.2d 1095, 1101 (9th Cir. 1990); Doe v. Qi, 349 F.Supp. 2d 1258, 1287 (N.D. Cal. 2004).
21 Jungquist v. Sheikh Sultan Bin Khalifa Al Nahyan, 115 F.3d 1020, 1027 (D.C. Cir. 1997).
22 Tachiona v. Mugabe, 169 F.Supp.2d 259, 288 (S.D.N.Y. 2001), aff'd in part, rev'd in part, Court of Appeals for the 2d Circuit, 386 F.3d 205 (without revisiting the finding on Head of State immunity).
23 Wei YE, Hao Wang, Does, A, B, C, D, E, F, and others similarly situated v. Zemin, 383 F3d.. 620, 625 (7th Cir. 2004) (“The FSIA does not … address the immunity of foreign heads of states. The FSIA refers to foreign states, not their leaders.“).
24 See, e.g., Andrew Mitchell, “Leave Your Hat On? Head of State Immunity and Pinochet”, Monash University Law Re view, vol. 25, 1999, p. 225, at pp. 230-231.
25 With regard to the work of the International Law Commission,compare Official Records of the General Assembly, Sixty-second session, Supplement No.10 (A/62/10), para. 376 (noting that’ ‘the Commission decided to include on its programmeof work the topic ‘Immunity of State officials from foreign criminal jurisdiction'“) with its previous codification effort on State immunity, which culminated in the United Nations Convention on Jurisdictional Immunities of States and Their Property (2 December 2004), annexed to General Assembly resolution 59/38 of 2 December 2004. With regard to the work of the Institut de Droit International, compare Resolution on Immunities from Jurisdiction and Execution of Heads of State and of Government in International Law, adopted by the Institut at its Vancouver session in 2001, with Resolution on Con temporary Problems Concerning the Immunity of States in Relation to Questions of Jurisdiction and Enforcement, adopted by the Institut at its Basel session in 1991. Each body has identified numerous national courts and commentators accepting the doctrine of immunity of State officials as a separate and distinct doctrine from the immunity of States. See Immunity of State officials from foreign criminal jurisdiction (Roman A. Kolodkin), in Official Records of the General Assembly, Sixty-first session (A/61/10), Annex A, p. 443 (in particular the bibliography at pp. 449-454); Les immunités de juridiction et d'exécution du chefd'Etat et de gouvemement en droit international, Rapporteur : M. Joe Verhoeven, in Yearbook of the Institut de Droit international, vol. 69, 2000- 2001, pp. 441-709.
26 See supra note and accompanying text.
* This text was reproduced and reformatted from the text appearing at the Findlaw website: (visited April 23, 2008)<http://caselaw.lp.findlaw.com/data2/circs/dc/077009a.pdf>
* LL.B. & J.D., Pontificia Universidad Catolica del Ecuador (PUCE); LL.M, McGill University; Professor of International Commercial Arbitration, PUCE; Partner at Andrade Veloz & Asociados, Ecuador
** LL.B., ITESM Mexico; J.D. Candidate 2009, The George Washington University Law School.