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Prosecute, Sue, or Deport? Transnational Accountability in International Law

On April 8, 2015, the United States deported Salvadoran General Carlos Eugenio Vides Casanova, whom The New York Times described as “the highest‐ranking foreign official to be deported under laws enacted in 2004 to prevent human rights violators from seeking haven in this country.” Thirteen years earlier, a Florida jury found General Vides and a co‐defendant liable for $54.6 million in damages for torture and killings by El Salvador National Guard troops under the general’s command, the same conduct for which he was ultimately deported. On the same day that General Vides was deported, the U.S. Department of Justice filed a request seeking the extradition of Salvadoran Colonel Inocente Orlando Montano Morales, the former Vice Minister of Defense and Public Safety, to face murder charges in Spain for his role in the 1989 Jesuit massacre in El Salvador.

These cases are high‐profile, but not unique. The United States is in the process of deporting 150 Bosnians who immigration officials believe participated in war crimes and other atrocities during the 1990s conflict in the former Yugoslavia. The State Department is also seeking to prohibit the entry of certain accused human rights violators. For example, in February, the United States announced new visa restrictions for individual Venezuelan officials accused of human rights violations and corruption in Venezuela. Venezuelan President Nicolas Maduro condemned the visa restrictions as an attack on Venezuelan sovereignty. Similarly, the chief representative in Washington of Republika Srpska said that the Bosnians “are being hounded just because they wore the uniform of the Serbian Army, or the Army of the Republika Srpska.” The United States has not found these objections persuasive as a matter of either law or policy.

When one country imposes consequences for internationally unlawful conduct on an individual who acted on behalf of another country, it enforces international law horizontally. This is because sovereign states are, in theory, situated on a level plane vis‐à‐vis each other, despite their obvious differences in size and resources. The principle of sovereign equality and the need to conduct foreign relations impose certain limits on one state’s ability to exercise jurisdiction over another state or its officials. For example, sitting heads of state, ambassadors, and foreign ministers, who enjoy “status‐based” or ratione personae immunity, are shielded from the legal processes of foreign states, even though they are subject to proceedings in certain international criminal tribunals. Other foreign officials, and former heads of state and ambassadors, enjoy “conduct‐based” or ratione materiae immunity for certain official acts, although the precise scope of this immunity remains contested.

Some have claimed that the principle of sovereign equality categorically prohibits one state from exercising jurisdiction over another state’s current—and even its former—officials. This extreme position asserts that, even if a foreign state itself is not a named defendant, pronouncing on the lawfulness of conduct that is attributable to a foreign state impermissibly violates that state’s sovereignty. Yet those who take this position rarely challenge measures, such as immigration consequences, that also involve pronouncing on the conduct of foreign states. The idea that an individual’s conduct is immune from scrutiny if it is attributable to a foreign state turns out to be more rhetoric than reality.

This Essay argues that we should view criminal, civil, and immigration consequences (“detention,” “damages,” and “deportation”) as manifestations of the same underlying principle: that individual officials can bear personal responsibility for their acts under international law, and that the domestic institutions of one state can in certain circumstances attach consequences to that responsibility without violating the sovereignty of foreign states.

The integrated approach proposed here has at least three important implications. First, it supports the view that an individual’s and a foreign state’s immunity need not be congruent simply because individual and state responsibility are occasionally concurrent. Second, it suggests that we should treat states’ decisions (and foreign states’ reactions) regarding detention, damages, and deportation as all being relevant to delineating the contours of conduct‐based immunity under customary international law, which is based on consistent state practice accompanied by a belief that such practice is legally required (opinio juris). Third, it highlights that, although we tend to think of state sovereignty in absolute terms, our understandings of sovereignty—as manifested in the state practice and opinio juris described below—are actually varied and context‐dependent. Our ultimate goal should be to tailor horizontal enforcement regimes that respect the core of state sovereignty while promoting individual accountability consistent with due process.