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Abstract

A concept of immunity for foreign heads of state has existed since ancient times. Such immunity constitutes customary international law (“CIL”) and, when applicable, frees such individuals from the criminal jurisdiction of foreign nations while carrying out their duties. In the United States, executive branch guidance is considered determinative on the issue of foreign head-of-state immunity; however, the executive branch does not always provide suggestions of immunity, or it may provide suggestions that violate CIL. Drawing upon both US and against foreign sitting and former heads of state and government officials increasingly are becoming more established and ma provide additional guidance in the absence of, or as a supplement to, US executive branch guidance. For example, while relevant international immunity law norms generally prohibit criminal prosecutions by domestic jurisdictions against foreign sitting heads of state and other senior governmental officials, they allow such suits against former leaders and officials in certain circumstances. Moreover, these same norms permit prosecutions against both sitting and former heads of state and officials if these prosecutions are commenced by international criminal tribunals (e.g., the ongoing International Criminal Court proceeding against President Omar Al-Bashir of Sudan). Significantly, the recent US Supreme Court case United States v. Samantar significantly changed the related doctrine of foreign official immunity in the United States. Samantar essentially removed statutory analysis of foreign official immunity through the Foreign Sovereign Immunity Act (“FSIA”) and ostensibly replaced it with traditional common law analysis. In light of this radical shift in the foreign official immunity inquiry, this Article suggests an analytical approach that US courts may draw upon in the aftermath of Samantar. Such an approach, reflecting a “totality of circumstances” analysis, combines certain aspects of the existing common law analysis from the head-of-state context with particular approaches used by courts in the official immunity context under the FSIA. Finally, in light of both the evolving principle of subsidiarity, which an increasing number of non-US jurisdictions follow, and the concept of complementarity adopted by the International Criminal Court (“ICC”), this Article attempts to shed light on how US courts should approach the issue of whether to defer to either the courts of other nations (i.e., subsidiarity) or to international tribunals (i.e., complementarity) in those specific cases in which these courts or tribunals are actively proceeding against a head of state or other foreign official who is also a defendant in a US court. For example, potentially strong policy reasons related to the maintenance of peaceful foreign relations among nations, and equally potent conceptual reasons related to the sovereignty of individual states, appear to support US courts’ deferring to ongoing or pending non-US, national trials of heads of state and certain foreign government officials, particularly when these trials have a clear connection to the foreign country and are legitimate. Similarly, deference to an international criminal tribunal may be appropriate in certain circumstances. This Article consists of four parts. Part I addresses the US approach to immunity for current and former foreign heads of state as well as the related issue of foreign official immunity. Part I includes a discussion of the 2010 US Supreme Court case of Samantar, which addresses foreign official immunity. Part II explores head-of-state and official immunity under international law, including a discussion of Democratic Republic of the Congo v. Belgium decided by the International Court of Justice (“ICJ”), the Charles Taylor immunity decision of the Special Court for Sierra Leone, the ongoing case by the ICC against Sudanese President Al-Bashir, and relevant international codification on the issue. Part III examines third-party prosecutions of heads of state and other government officials by other national jurisdictions. This part discusses the jurisdictions of Germany, Great Britain, and Spain and how they approach immunity from prosecution for foreign heads of state and officials. Part IV includes an analysis of how US courts should continue to handle the evolving issues of foreign head-of-state and foreign official immunity, particularly in light of Samantar and recent international developments, including high-profile proceedings involving heads of state and other governmental officials by the ICC, ICJ, and other international tribunals, and increased activity by foreign national courts against these individuals.

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