摘要：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,
