Head-of-State and Foreign Official Immunity in the United States after Samantar: A Suggested Approach
![handle is hein.journals/frdint34 and id is 338 raw text is: HEAD-OF-STATE AND FOREIGN OFFICIAL
IMMUNITY IN THE UNITED STATES AFTER
SAMANTAR: A SUGGESTED APPROACH
Dr. Christopher D. Totten *
INTRODUCTION
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.2 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.3 Drawing upon both US and
* Assistant Professor of Criminal Justice at Kennesaw State University. He has aJ.D.
and LL.M. from Georgetown University and an A.B. from Princeton University. He is
also a Commentator/Contributing Editor for the Criminal Law Bulletin (volumes 46 and
47). The author thanks Matthew Bernal for his research assistance.
1. See RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED
STATES ch. 6, intro. note (1987) [hereinafter RESTATEMENT].
2. See id. at chs. 5-6, intro. notes. Such protections exist in order to foster positive
relations between nations. See id. at ch. 6, intro. note. The guarantee of freedom from
prosecution allows for states to exchange representatives without fear of persecution.
Daniel Singerman, Comment, It's Still Good to Be the King: An Argument for Maintaining the
Status Quo in Foreign Head of State Immunity, 21 EMORY INT'L L. REv. 413, 418 (2007).
Furthermore, the prohibition on allowing states to prosecute certain officials and
representatives from foreign nations promotes respect for national sovereignty by
disallowing one state from passing judgment on the actions of another. See id. The
system, or framework, of immunity works on a basis of reciprocity; one nation must treat
another's representative on equal footing. See id.
3. For the idea that executive branch guidance is determinative on the issue of
sitting-head-of-state immunity analysis, see infra notes 43-48 and accompanying text
(citing and discussing relevant case law). For the role of executive branch guidance for
former head-of-state immunity, see infra note 67 and accompanying text (citing and
discussing relevant case law). For a discussion of the independent court analysis in cases
in which executive branch guidance is not forthcoming, see infra notes 49-56, 60 and
accompanying text (citing and discussing relevant case law). For a thorough discussion
of the nebulous nature of the head-of-state immunity inquiry in the United States,
including the problems associated with executive branch (e.g., State Department)
guidance on the head-of-state immunity issue (e.g., arbitrariness, inconsistency,
unfairness, and undue political influence) and the overall dearth of judicial cases, see
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Head-of-State and Foreign Official Immunity in the United States after Samantar: A Suggested Approach
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