This is the second of two articles analyzing the pending Supreme Court case Turkiye Halk Bankasi A.S. v. United States, which is being argued on Jan. 17. In that case, the Court will likely decide whether and to what extent the Foreign Sovereign Immunities Act (FSIA) applies to criminal proceedings.

Our first article argued that the best reading of the FSIA’s text and structure is that it confers immunity on foreign states in criminal as well as civil cases. That conclusion follows from the plain language of § 1604 of the FSIA, which states that foreign states “shall be immune from the jurisdiction” of both federal and state courts except as otherwise provided in the FSIA. It is also consistent with Congress’s comprehensive effort in the FSIA to regulate the immunity of foreign states and their instrumentalities, and it avoids potential conflicts that might otherwise arise under international law. By contrast, as we also explained in the first article, the exceptions to immunity in § 1605 of the FSIA are best read to apply only to civil cases. That reading is consistent with Congress’s effort to codify the restrictive theory of immunity, and it makes sense of the FSIA’s removal provision, which is limited to civil cases, as well as other FSIA provisions.

The United States argues, by contrast, that the entire FSIA, including § 1604, is limited to civil cases. We explained in the previous article why we find that argument unpersuasive. In this article, however, we assume that the government is right that the FSIA does not address the immunity of foreign sovereigns in criminal cases, and we consider what law, if any, would govern such immunity. We canvass various possibilities, and in the end argue that the best answer (although one not free from difficulty) is to allow the executive branch to determine whether sovereign immunity is granted in criminal cases, in both federal and state court, unless and until Congress regulates the issue.

Read more at Lawfare