The international legal community has long tabled the issue of immunities within the International Criminal Court (ICC). Much of the disagreement lies in the belief that Heads of State, Foreign Ministers and Diplomatic and Consular agents enjoy immunities from the criminal jurisdictions of other states. Whilst this is generally accepted under customary international law, as confirmed by the Arrest Warrant Case (Democratic Republic of Congo v. Belgium), there is much contention over whether these immunities apply to International Criminal Courts, particularly when non-party state nationals are involved.

Indeed,  International criminal courts and tribunals are often construed as the mouthpieces of the states that founded them, leading to noticeable weariness of political interference. This attempt to safeguard the sovereignty of states is admirable, especially since the ICC has often dubiously targeted individuals from certain countries, such as African states. This endeavour, however, falters in its legal reasoning, as the ICC operates on a thoroughly distinct set of legal norms, soundly founded on state consent and judicial independence. 

The Rome Statute

Firstly, the Rome Statute clearly outlines the lack of immunity for state officials, as official capacity is deemed unequivocally irrelevant when applying the law (Art. 27 Rome Statute). This further applies when other forms of international law would allow for immunity (Art. 27(2) Rome Statute). However, Art.98 of the statute seemingly underlines that this does not apply to nationals of non-state parties, with the article requiring the waiver of immunity from said countries.

Nevertheless, judgments such as the Al-Bashir case have validated ICC arrest warrants (Art. 58 Rome Statute) of nationals of non-state parties, and emphasised the obligation of member states to arrest non-state parties entering their territory at the request of the Court. Some legal scholars have lambasted this judgment as ruinous to the credibility of the international legal regime, whilst others have praised it for its shrewd protection against the impunity of high officials. So, what arguments can the ICC rely upon to ensure that these individuals are held to account, and that the most serious of international crimes do not go unpunished (see: Rome Statute preamble)?

The Matrix of Customary International Law and General Principles

The arguments which reveal the lack of impunity of non-state party nationals are noticeably complicated and present a strange legal matrix between evolving customary international law and the general principles and aims of international criminal law. Indeed, it is worth noting that international criminal law has developed from the Nuremberg trials, the authority of which the German state never legally consented to. Here, I will delve into the evident display of ‘settled practice’ and opinio iuris (see: North Sea Continental Shelf Case), which have marked the lack of immunity for state officials under international criminal law, irrespective of individual state consent.

Settled practice is arguably demonstrated by the fact that nations have numerous times recognised the jurisdiction of the ICC, when it comes to non-state party state nationals. However, there has been inconsistency in application, especially regarding political alliances. To demonstrate, states such as Germany and France have opposed the ICC’s jurisdiction over Israel’s Prime Minister Netanyahu, but have affirmed support for the prosecution of an individual of another non-state party, namely, Russian President Vladimir Putin. State practice cannot, therefore, be validated when it is motivated not by an observance of the law, but by political alliances. To add to this, as early as June 2024, 93 states voiced their support of the ICC’s arrest warrant against Netanyahu, arguably affirming the settled practice of altogether disregarding immunities of state officials within international criminal law. This mass nonrecognition of immunity conceivably highlights “extensive and virtually uniform” settled practice (see: North Sea Continental Shelf Case, para.73), illustrating evidence of customary international law. ICJ case law similarly does not preclude the jurisdiction of international criminal courts over state officials, but merely prohibits the prosecution of certain officials in foreign national courts. Supported by widespread voices and practice around the legal world, it is imperative that immunity for state officials in international criminal courts and tribunals is not recognised. 

How does customary international law subsequently relate to Art 98? Is there an inherent tension between the two norms? International criminal law is not an easily dissectable set of rules. However, to clarify this supposedly fragmented image of international criminal law, we must understand the general principles and context which guide it.  International Criminal Law first emerged as an attempt to try the German Kaiser after the atrocities of World War I. In the following decades, the lack of impunity of state officials within international criminal law was steadily introduced, partly due to the atrocities commited in World War II. The judgment in the Tadić case for example, rebukes legal argumentation that defeats the very purpose of international criminal law, the prevention of impunity of state officials(see: Rome Statute preamble). Crucially, one must not forget that treaties are not a form of law which supersede other forms of international law (e.g: custom). As Lord McNair lucidly outlined in The Law of Treaties, international treaties act “against the background of international law.” Treaty law thus must not be analysed in isolation from general international law norms. 

Many additionally believe that officials of non-party states have immunity before the ICC, despite Art. 27 Rome Statute, as certain state officials have certain immunities before foreign national courts. These arguments blatantly forget that international courts are not foreign national courts, but separate courts on their own. As illustrated in Reparation for Injuries Advisory Opinion, international organisations enjoy independence from their constitutive member states, easily rebuking this presumption 

Conclusion

 Immunities for state officials, therefore, do not apply before the ICC, regardless of whether the individual is a national of a non-state party. Indeed, this is due to the well-established aims of the Rome Statute and the evolution of customary international law. Complex but compelling, this legal argumentation enables the ICC to remain a stalwart against impunity.

Bibliography

Primary Sources

Treaties

Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3 (Rome Statute)

Vienna Convention on Diplomatic Relations (adopted on 14 April 196, entered into force on 24 April 1964) 500 UNTS 95 (VCDR).

Cases

Case Concerning The Arrest Warrant of 11 April 2000 (The Democratic Republic of the Congo v. Belgium) (Judgment) [2002] ICJ Rep 3. 

Situation in Darfur, Sudan In The Case of The Prosecuter v. Omar Hassan Ahmad Al-Bashir (Judgment in the Jordan Referral re Al-Bashir Appeal) [2019] ICL 1945 (ICC 2019).

Judgment of the Nuremberg International Military Tribunal 1946 (1947) 41 AJIL 172.

North Sea Continental Shelf Cases (Federal Republic of Germany v. Netherlands; Federal Republic of Germany v. Denmark) [1969] ICJ Rep 3.

Tadic Case (Judgment) ICTY-94-1 (26 January 2000).

Advisory Opinions

Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) 1949 ICJ Rep 174

Secondary Sources

Journals

Michael A. Tunks, ‘Diplomats or Defendants? Defining The Future of Head of State Immunity’ [2002] DLJ 651

Michiel Blommestijn & Cedric Ryngaert, ‘Exploring the Obligations for States to Act upon the ICC’s Arrest Warrant for Omar Al-Bashirs’ [2010] ZFIS 428

Dipen Sabharwal, ‘Treaties are Treaties and Custom is Custom and Never the Twain Shall Meet: The Interplay of Treaties and Custom in International Law’ [2000] NLSIR 113

Websites

Nema Milaninia, ‘Time to Revisit the ICC’s Position on Head-of-State Immunity?’ (Just Security, March 27 2025) <https://www.justsecurity.org/109590/time-to-revisit-the-iccs-position-on-head-of-state-immunity/> accessed 19 May 2025

Nils Adler, ‘Is Netanyahu immune from ICC arrest warrant as France claims?’ (Aljazeera, 28 November 2024) <https://www.aljazeera.com/news/2024/11/28/is-netanyahu-immune-from-icc-arrest-warrant-as-france-claims> accessed 19 May 2025

Dapo Akande, ‘ICC Appeals Chamber Holds that Heads of State Have No Immunity Under Customary International Law Before International Tribunals’ (EJIL: Talk!, May 6 2019) <https://www.ejiltalk.org/icc-appeals-chamber-holds-that-heads-of-state-have-no-immunity-under-customary-international-law-before-international-tribunals/> accessed 20 May 2025

Chile Eboe-Osuji, ‘There is No Immunity for the International Criminal Court to Respect’ (Just Security, April 11 2025) <https://www.justsecurity.org/110266/no-immunity-icc-respect/> accessed 20 May 2025

‘Germany’s Scholz says ICC warrant for Putin shows ‘nobody is above the law’ (Reuters, March 18 2023) <https://www.reuters.com/article/markets/commodities/germanys-scholz-says-icc-warrant-for-putin-shows-nobody-is-above-the-law-idUSL8N35Q07K/> accessed 20 May 2025

Global Affairs Canada, ‘Joint Statement in support of the International Criminal Court’ (Government of Canada) <https://www.canada.ca/en/global-affairs/news/2024/06/joint-statement-in-support-of-the-international-criminal-court.html> accessed 21 May 2025

Fatou Bensouda, ‘Africa Question: Is the International Criminal Cort (ICC) targeting Africa inappropriately?’ (ICC Forum) <https://iccforum.com/africa> accssed 20 May 2025

Books

Lord McNair, ‘The Law of Treaties’  (1st ed Oxford: Clarendon Press 1961)

Chile Eboe-Osuji, ‘End of Immunity: Holding World Leaders Accountable for Aggression, Genocide, War Crimes and Crimes against Humanity’ (1st ed Globe Pequot 2024)