This belated report just in by slow boat: In a brief filed on August 29, the Justice Department asserted immunity on behalf of President of Rwanda Paul Kagame in an Alien Tort Statute suit brought against Kagame in federal court in Oklahoma. The lawsuit was filed by the widows of the former Presidents of Rwanda and Burundi, who claim that Kagame ordered the assassination of their husbands in April 1994 by shooting down the aircraft in which the Presidents were flying.
The Justice Department’s brief is based on a request from State Department Legal Adviser Harold Koh formally recognizing the immunity of Kagame “as a sitting head of state.” It is standard State Department practice to recognize, and request the Justice Department to assert, the immunity of sitting heads of state in any civil suits brought against them in the U.S. The longstanding position of the Executive branch is that determinations of immunity made by the Executive branch are binding on U.S. courts and are not subject to judicial review. No court has ever rejected a suggestion of immunity.
The Justice Department’s brief on behalf of Kagame provides a somewhat more detailed statement of Executive branch views on the temporal scope of head of state immunity than has customarily been included in suggestions of immunity, noting that a head of state enjoys immunity while in office for actions taken before assuming office and also enjoys residual immunity after leaving office for acts taken in an official capacity while in office (but not for alleged acts predating the individual’s tenure in office.)
I would add that the State Department Legal Adviser is sometimes harshly criticized by human rights advocates for asserting immunity on behalf of foreign heads of state and government officials in human rights suits. (Some human rights lawyers blasted me for asserting immunity on behalf of the Pope in 2005.) But customary international law clearly recognizes the immunity of sitting heads of state (as well as of current and former government officials for their official acts), and the Obama Administration has acted in accordance with international law by recognizing Kagame's immunity in this case.
DoJ Civil Division Appellate Counsel Lewis Yelin has written an outstanding and comprehensive article on head of state immunity (to be published in the Vanderbilt Journal of Transnational Law later this month) based on his presentation at a symposium on immunities at Vanderbilt earlier this year. I will have an article in the same issue about the official immunities of other foreign government officials.