On August 16, a judge in the Southern District of New York dismissed a suit brought against the Emir of Kuwait, Sheik Sabah al-Ahmad al-Jaber al-Sabah, under the Alien Tort Statute and the Torture Victim Protection Act, based on a Suggestion of Immunity filed by the Department of Justice on April 5. The Suggestion of Immunity attached a letter from State Department Legal Adviser Harold Koh recognizing the immunity of Sheikh al-Sabah as a sitting head of state. The plaintiffs were members of an Egyptian political organization who claim to have been detained and tortured in Kuwait at the request of the Mubarak government in Egypt.
This is the third time in less than a year that ATS or TVPA suits have been dismissed against sitting heads of state based on Suggestions of Immunity filed by the Obama Administration. As I have described in previous posts, the other dismissed cases had been brought against President Paul Kagame of Rwanda and President Mahinda Rajapaksa of Sri Lanka.
Consistent with customary international law, the Executive branch has over the course of many Administrations recognized the immunity of sitting heads of state from suit in the United States. (I signed several suggestions of immunity, including one for the Pope as head of state of the Vatican City.) The position of the State Department is that such suggestions of immunity are binding on U.S. courts and are not reviewable. No court has ever rejected a U.S. suggestion of immunity.
Many human rights groups had hoped that the Obama Administration would begin to recognize exceptions to generally accepted principles of head-of-state immunity for gross human rights violations, such as torture and extrajudicial killings. So far, although it has delayed its filings in the Kagame and Rajapaksa cases, the Obama Administration has not departed from past State Department practice and customary international law. Kuwait, of course, is a close U.S. ally.