(Editor’s note: This is Part 1 of a two-part analysis; Part 2 is forthcoming.)
Recent public messaging from Germany and Hungary about impending visits by Israeli Prime Minister Benjamin Netanyahu have led to statements that failure to execute the International Criminal Court (ICC)’s arrest warrant against Netanyahu would violate international law. The opposite is true. This article discusses how the ICC’s denial of immunity to sitting heads of State of non-State parties violates international law and threatens the ICC’s authority and legitimacy.
Personal Immunity for Sitting Heads of States under International Law
The ICC has for more than two decades now devoted significant resources and attention to cases against senior State officials, including sitting Heads of State. This has led to several acquittals or withdrawals of charges and numerous refusals by States parties to carry out arrest warrants. Cases against heads of State parties to the ICC are legally straightforward because these States have waived immunity claims by signing the ICC’s Rome Statute (Article 27). Cases against heads of third States on the basis of United Nations Security Council referrals are more complex, but there is broad support for the proposition that Security Council referrals can set aside immunity claims. This discussion is limited to cases without Security Council involvement against sitting heads of State which are not ICC parties.
In 2011, an ICC Pre-Trial Chamber found that customary international law creates an exception to Head of State immunity when international courts seek a Head of State’s arrest for the commission of international crimes (see para. 43). In 2019, the ICC Appeals Chamber held in the case against former Sudanese President Omar Al-Bashir “that there is neither State practice nor opinio juris that would support the existence of Head of State immunity under customary law vis-à-vis an international court.” (Para. 1). As law professor Rosanne Van Alebeek and others have commented, the “ratio decidendi of the judgment is slightly fuzzy, but it is safe to say that the reasoning of the Appeals Chamber pivots on the finding that international courts have a ‘different character’ compared to national courts since they ‘act on behalf of the international community as a whole.’”
Since 2019, the ICC has doubled down on the proposition that it can prosecute anyone, including sitting Heads of States which are not ICC parties. In 2024, it concluded that Article 27 of the Rome Statute:
has the effect of removing any and all international law immunities of officials, including Heads of State, and binds to that effect States Parties, as well as States that have accepted the Court’s jurisdiction, not to recognise any kind of immunity or apply special procedural rules that they may attach to any persons. Whether these persons are nationals of States Parties or nationals of non-States Parties is irrelevant. (Para. 27).
On its website, the ICC asserts that “[n]o one is exempt from prosecution because of his or her current functions or because of the position he or she held at the time the crimes concerned were committed. Acting as a Head of State or Government, minister or parliamentarian does not exempt anyone from criminal responsibility before the ICC.”
This position has been roundly and rightly criticized for more than a decade. International law on immunities is complex and multi-faceted. One must distinguish between personal and functional immunities, as well as between questions of jurisdiction, defences, and judicial assistance between States. The language of relevant rules and case law is often general and must be interpreted in its context. The Nuremberg Tribunal, for example, does not provide a precedent for denying immunity to sitting heads of State because no prosecution of a sitting Head of State took place or was even contemplated at the trials. International law experts by clear majority agree that ICC immunity decisions do not adequately make such distinctions, fail to recognize the importance of limited immunities under international law for global stability, do not do justice to relevant State practice and rely on arguments that are untenable (for opposing conclusions see here and here). Academic commentary on the ICC’s line is overwhelmingly critical, and some of the limited support available explicitly acknowledges that it welcomes the result without pretending that the ICC’s position is a correct reading of international law.
The ICC’s position has by now been contradicted by the Arab League, the African Union, the United States, Russia, China, Pakistan, Brazil, and the United Arab Emirates. Multiple European States publicly asserted that Israeli Prime Minister Benjamin Netanyahu could benefit from immunity in the face of an ICC arrest warrant. State practice speaks at least as loudly as these words. Al-Bashir travelled to dozens of countries, including ICC States parties, without being arrested. Kyrgyzstan, Kazakhstan, Vietnam, Mexico and Mongolia refused to arrest Russian President Vladimir Putin, explicitly asserting or implicitly affirming that Putin was entitled to immunity ratione personae. No ICC arrest warrant against a sitting head of a State not party to the ICC has ever been executed.
It is important to recognize that in recent years States’ public positions on immunities under international law have become especially inconsistent, or even opportunistic. But expressions of support for ICC arrest warrants against particular individuals do not count for much when these are made by States who have a clear record of supporting personal immunities in comparable cases.
Careful scrutiny reveals that even some States supporting the ICC in general terms do not support the ICC’s position on immunities. The Netherlands is a case in point. As Host State, it is a significant and vocal supporter of the ICC. It recently signed the declaration of support of 79 States in reaction to U.S. sanctions against the ICC. But The Netherlands at the same time (albeit in less visible terms internationally) continues to express the position that it recognizes personal immunities under international law for heads of third States and that contrary to the ICC’s position, such immunities are governed by Art. 98 Rome Statute and can bar execution of an ICC arrest warrant. The Netherlands did so in 2002, in 2012 and again in 2023. I suspect there are more States which signed the recent declaration of support but do (in practice) not actually share the ICC’s reading on the law of international immunities, including Germany.
While a handful of States, including Ukraine, Switzerland and Lithuania, are on the record as explicitly supporting the ICC’s blanket denial of immunities to all sitting heads of State, that support – certainly seen in light of the broad recorded international opposition – falls far short of constituting a representative international community.
Consequences of Judicial Overreach
The ICC’s judicial overreach has many downsides. One is that it exposes the Court as less-than-rigorous in its treatment of international law and thereby undermines its standing and authority. Already in April 2019, four former presidents of the ICC’s Assembly of States Parties lamented the quality of some of its judicial proceedings. Since then, decisions regarding immunity of third State officials have made the situation decidedly worse.
A main problem of the ICC’s reasoning is that it nowhere attempts to articulate under what conditions an international court can deny immunity to all individuals because it represents the international community. Clearly, setting aside immunities of non-State parties will require significantly more will than the agreement of multiple States. States do not have the authority to set aside personal immunities of heads of other States, and thus cannot delegate such authority to an international court. The questions of under what conditions an international court can deny all personal immunities and whether the ICC meets these conditions have by now become academic, because the ICC’s line of decisions has provoked so much international backlash that no reasonable observer can still believe the ICC is denying immunities to third State officials on behalf of an international community.
Brushing aside Article 34 of the Vienna Convention on the Law of Treaties (VCLT) (the rule that a treaty only creates rights and obligations for the States that are parties to it) as “irrelevant” while relying on the principle of effectiveness stemming from Article 31 of the VCLT to deny immunity to heads of non-State parties – as the ICC did in its 2024 Mongolia decision – does not befit a credible international court. The same is true for its ambiguously phrased conclusion in the same decision that Article 98 Rome Statute either does not cover personal immunities of officials at all, or the immunity only of diplomats but not of the Head of State (paras. 35-36): that position was (rightly) characterized as “manifestly absurd” long ago in light of the language of Article 98 and the fundamental nature of Head of State immunity.
The ICC’s treatment of decisions of the International Court of Justice (ICJ) is equally dubious. The ICC relies on the ICJ’s obiter dictum in the 2000 Arrest Warrant case that “an incumbent or former Minister for Foreign Affairs may be subject to criminal proceedings before certain international courts,” including the ICC (para. 61), but essentially ignores the word “certain.” The most logical reading of this obiter is that immunities do not apply before international courts under certain conditions, for example, when the State involved has waived the immunity (either by subscribing to the relevant treaty or otherwise) or when the international court has been established pursuant to Security Council resolutions under Chapter VII of the United Nations Charter. The ICJ’s choice of words is not compatible with the ICC’s position that immunities do not ever apply before any international court. At the same time, the ICC’s decisions fail to mention that the ICJ has found in 2008 that a Head of State enjoys “full immunity from criminal jurisdiction and inviolability” which protects him or her “against any act of authority of another State which would hinder him or her in the performance of his or her duties” and “any infringement of a [Head of State’s] person, liberty or dignity,” including “any form of arrest or detention” (Para. 170, emphasis added).
Unsurprisingly therefore, in 2001 and 2009, experts assessed international law to be moving towards a limitation of functional immunities for international crimes while leaving personal immunities of Heads of State untouched. States could limit the personal immunities of “their own Heads of State,” but only by “express derogation” to be “unambiguously established.” This state of international law cannot be reconciled with the ICC’s proposition that a State can simply pool resources with other States to then arrest the Head of a third State without that State’s consent. Apodictic statements about “jus puniendi” (a State’s right to punish those who break the law) cannot change that reality.
Neither can arguments about the gravity of international crimes or the peremptory nature of their proscription. The insistence of the Joint Concurring Opinion in the 2019 Al-Bashir decision that the jus cogens nature of international crimes can outweigh customary international immunities isolates the ICC from the positions of both the ICJ and the European Court of Human Rights (ECtHR), and not in a convincing way. Immunities are procedural norms that determine the proper venue for adjudication. Substantive norms have no bearing on those procedural norms. In the domestic context, that notion is well understood. Nobody wants to be prosecuted by their neighbors. Nothing those neighbors say about the peremptory nature of the norms they wish to uphold can change that reality. Neither does the fact that they together have formed a voluntary neighborhood watch and are thus “not acting in their individual capacities.” The problem is that they are still your neighbors.
To be sure: progressive development of the law can be justified and important. But in order to be credible and durable, it has to build on existing law rather than contradict fundamental aspects of it. It also has to be acceptable to the legislature, in this case States themselves. That may cause friction and take time, as long as the legislature ultimately accepts it. That is clearly not happening here. Whether one likes it or not, international law is still made by States.
Global Stability
The ICC’s treatment of immunities gives short shrift to their importance for global stability. The cavalier way the Joint Concurring Opinion in the 2019 Al-Bashir decision notes (para. 183) “that no human being is indispensable in the life of a nation” and that “[a] successor will always emerge to take over the reins of power” stands in stark contrast to international law’s rationale for Head of State immunity. As several ICJ judges have noted, “immunities are granted to high State officials to guarantee the proper functioning of the network of mutual inter-State relations, which is of paramount importance for a well-ordered and harmonious international system.” (Para. 75).
Earlier, in 1980, the ICJ had stressed the importance of:
the edifice of law carefully constructed by mankind over a period of centuries, the maintenance of which is vital for the security and well-being of the complex international community of the present day, to which it is more essential than ever that the rules developed to ensure the ordered progress of relations between its members should be constantly and scrupulously respected. (Para. 92).
While the ICJ in that case addressed the immunities of diplomatic and consular staff, its warning is no less relevant in the present day and context.
The ICJ’s approach both reflects international law and the needs of a turbulent world. The question cannot only be whether the ICC’s actions strain international relations. It is also necessary to ask: what would happen if other States – say Russia, Belarus and China – would decide to enact their own, competing international criminal court to deny immunities to all Heads of State? More than ten years ago, one supporter of the ICC’s approach noted that “international criminal law stricto sensu comes at a price with respect to the stability of inter-State relations. I believe this price is worth paying…” I respectfully suggest that State practice since then and the current outlook for the future warrant a more cautious approach. Wishful thinking about what should happen to indicted Heads of State in an ideal world is no reasonable alternative for taking stock of what actually happens in reality.
Respecting International Law
It may seem counterintuitive for the ICC to take a step back and adjust its approach. Some of its indictments of Heads of third States have been hailed as proof that international criminal law can confront all. In a time when the rule of law is under pressure and grave international crimes dominate the news, one could think that the ICC should step up, not down. But international courts must respect international law, also in dire times. The ICC’s denial of immunity to Heads of third States does not. The ICC’s insistence to pursue such cases puts it on the wrong side of the law in cases where the Court is unlikely to achieve anything but a notable erosion of its authority and legitimacy.