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impact on Head of State Immunity under common law by the Samantar v. Yousuf [3] decision, as well as the procedure to claim such immunity.

Part I: Head of State Immunity – Meaning and rationale

Grounded in customary international law, the doctrine of head of state immunity provides that a head of state is not subject to the jurisdiction of foreign courts, at least as to official acts taken during the ruler's term of office. [4] The doctrine provides that a foreign head-of-state, as a representative of a foreign nation, should be extended the same immunity from the jurisdiction of United States courts as would the sovereign state itself. [5]

The Doctrine is applied in the United States as a matter of customary international law and as an incident of the executive branch's authority in the field of foreign affairs. [6] Courts in USA have on numerous occasions, discussed the rationale behind the Doctrine of Head of State Immunity. Head-of-state immunity is premised on the concept that a state and its ruler are one for purposes of immunity. [7] The central purpose of affording public officials qualified immunity from suit is to protect them from undue interference with their duties and from potentially disabling threats of liability. [8] Head-of-state immunity is also supported by the doctrine of comity-that is to say, each state protects the immunity concept so that its own head-of-state will be protected when he or she is abroad. [9]

Courts have held that the doctrine exists to “promote international comity and respect among sovereign nations by ensuring that leaders are free to perform their governmental duties without being subject to detention, arrest, or embarrassment in a foreign country's legal system”. [10] As early as 1812 the US Supreme Court embraced the notion, grounded in customary international law, that a head-of-state is absolutely “exempted” from the jurisdiction of the receiving State's courts. [11]

In 2002, the International Court of Justice decided on a very similar matter and held that an 'international arrest warrant in absential' against an incument Minister for Foreign Affairs was illegal. Belgium had issued an international arrest warrant against Mr. Abdulaye Yerodia Ndombasi, the incubent Minister for Foreign Affairs of Congo. The ICJ had held that Belgium had 'failed to respect the immunity from criminal jurisdiction and the inviolability which the incumbent Minister for Foreign Affairs of the Democratic Republic of the Congo enjoyed under international law'. This decision, however, is sought to be distinguished from Minister Nath’s as the latter involves a tort claim against an individual in his personal capacity, as opposed to a criminal trial against a Minister acting in his official capacity.

Part II: Scope and application of the Doctrine – The Enquiry

Case law suggests that the considerations for determining whether or not to grant immunity are (a) whether the nature of the alleged act permits immunity to be granted; (b) whether the person claiming immunity is a recognized head of a recognized State; (c) whether there has been a waiver of such immunity.

(i) The nature of allegations and the act complained of

There are two approaches to determining the applicability of the immunity, with one stark contradiction – the nature of the act feature