In a recent lawsuit, current Yale professor and former Mexican president Ernesto Zedillo has been accused of committing war crimes and crimes against humanity during his presidential tenure. But the U.S. State Department is arguing that Zedillo is immune from the suit, since his actions in connection with the 1997 Acteal massacre of 45 indigenous villagers were taken as part of his official duties as head of state.

Zedillo’s lawyer, Jonathan Freiman, motioned to dismiss the $50 million suit in January, citing the same reasoning. According to the Yale Daily News, “Ingrid Wuerth, a professor at Vanderbilt Law School who has written about immunity issues, said the courts have tended to side with State Department suggestions of immunity. She cautioned that such practices lend the government political power in altering the course of judicial proceedings.”

Though such cases are rare, it is common practice for the State Department to provide immunity recommendations to U.S. courts for cases concerning foreign heads of state. While State Department legal adviser Harold Koh wrote that the agency’s position took into account “the overall impact of [the case] on the foreign policy of the United States,” Curtis Bradley, a professor at Duke University School of Law, said it was primarily grounded in principles of international law. He said a federal court would have considered similar principles, and would likely have reached a comparable conclusion about Zedillo’s immunity even without the State Department recommendation.

This is an interesting case for those concerned with prevention of mass atrocities, as it raises the question, At what point does immunity become impunity?

Also in the news this week, the United States is refusing to extradite Bolivian ex-president Gonzalo Sánchez de Lozada to face charges of genocide and crimes against humanity. In October 2003, then-president Sánchez de Lozada ordered security forces to suppress popular protests against economic inequality. Sixty-seven men, women, and children were killed, and 400 injured, almost all of them poor and from the nation’s indigenous Aymara communities. Sánchez de Lozada fled to the United States, and has been living here ever since.

Writes Glenn Greenwald in The Guardian:

In 2007, Bolivian prosecutors formally charged him with genocide for the October 2003 incident, charges which were approved by the nation’s supreme court.

Bolivia then demanded his extradition from the US for him to stand trial. That demand, ironically, was made pursuant to an extradition treaty signed by Sánchez de Lozada himself with the US. Civil lawsuits have also been filed against him in the US on behalf of the surviving victims.

In the civil case against him, a U.S. appellate court ultimately ruled that Sánchez de Lozada was immune from damages or civil lawsuits, overturning a lower court ruling that there were sufficient allegations of genocide and war crimes against him to allow the suit to proceed.

The topic of immunity for heads of state, both sitting and former, is more widely debated than ever. As it should be. The question of how genocide, war crimes, and crimes against humanity can be legitimately seen as part of a head of a state’s “official duties” is one that must be answered.