Individuals who were the subjects of torture and other atrocities abroad often come to the United States seeking refuge. Since 1991, these victims have also found a way of holding their torturers liable for their actions under the Torture Victim Protection Act of 1991 (“TVPA”). However, victims suing under the TVPA have faced an obstacle in the form of the Foreign Sovereign Immunities Act of 1976 (“FSIA”), a law under which their alleged torturers are claiming immunity from prosecution as “agencies or instrumentalities” of their respective foreign states. This Recent Development considers the Fourth Circuit’s decision in Yousuf v. Samantar, where the court held that the FSIA does not provide immunity protections to individual persons, and as a result, that the defendant, a former Somali Prime Minister and Minister of Defense, was not entitled to immunity from prosecution for his alleged acts of torture. Interpretation of the scope of the FSIA’s protection has resulted in a split among the circuit courts to have considered the issue.
The FSIA gives foreign states and their agencies and instrumentalities immunity in the United States subject to certain exceptions. Ambiguities as to the meaning of the phrase “agencies and instrumentalities” and its further definition in the statute as “any entity which is a separate legal person, corporate or otherwise” have given rise to the different interpretations among the circuits. This Recent Development argues that based on the congressional intent implied by both the language of the statute and its legislative history, the FSIA was not meant to cover individuals, and that the current circuit split should be resolved in the Fourth Circuit’s favor. Further, this Recent Development argues that even assuming that the FSIA applies to individuals, the TVPA on its own was sufficient to bring a cause of action against the defendants. The potential for this narrower holding not only bolsters the argument that the FSIA must not apply to individuals, but also keeps open an important avenue of litigation for torture victims who hope to bring their tormenters to justice. This Recent Development recognizes that the exclusion of individuals from immunity under the FSIA will likely result in an increase in litigation, but concludes that the Fourth Circuit’s holding is preferable and worth the cost, as it gives victims of heinous crimes a way of holding their tormenters accountable while preserving a means of seeking immunity for those who are truly entitled to it.