Head-of-State and Foreign Official Immunity in the United States after Samantar: A Suggested Approach
Sociology and Criminal Justice
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.
Fordham International Law Journal