Immunities are again in vogue. And the debates about them – their relevance, and whether or not they can protect needed struggle criminals from investigation, prosecution or issued arrest warrants – is once more entrance and centre. Of important significance, is the query of how States react to those debates, and the warrants that presage them.
Philippe Sands in his newest bestseller, 38 Londres Avenue: On Impunity, Pinochet in England and a Nazi in Patagonia, reminds us of Senator Augusto Pinochet’s perilous go to to the UK in 1998 and the judicial saga about his immunity as a former Head of State.
After Pinochet’s travails earlier than the English courts, the controversy moved to the Worldwide Felony Court docket (ICC), and whether or not President Bashir of Sudan had immunity earlier than the ICC, and individually whether or not his immunity as a Head of State might protect him from the efforts by ICC member States to arrest and give up him to The Hague. There, a number of States – together with the US, the UK and the EU felt aggrieved that South Africa had did not arrest Bashir as he arrived to attend an African Union convention that South Africa was internet hosting, and known as upon South Africa to discharge its obligations as a Rome Statute member and hand him over to the ICC. Then, President Putin’s Russia invaded Ukraine, and the ICC issued an arrest warrant for him – the primary ICC warrant for a Head of State outdoors Africa – for struggle crimes dedicated in Ukraine. With momentary amnesia about its earlier aversion to the ICC, the US applauded the arrest warrant and inspired the Court docket to do its work. Britain too welcomed the issuing of the arrest warrant for Vladimir Putin. Sir Keir Starmer, a former director of public prosecutions, stated this as then-Labour chief: “As we speak’s announcement sends an essential message: there’ll no hiding place for Putin and his cronies and the world is decided to make them pay for what they’ve executed”.
Now we now have the more moderen arrest warrants for Israeli Prime Minister Netanyahu and Defence Minister Gallant by the ICC, for struggle crimes alleged in Gaza. There have been attention-grabbing twists since. The US decried the issuing of the warrants by the identical ICC that had executed so properly to subject the arrest warrants for Putin. France stated it may not arrest Netanyahu as a result of he had immunity, the identical France that had criticised Mongolia for not arresting Putin who had the identical immunity. For its half, the UK has chosen its phrases fastidiously, saying:
According to this Authorities’s said dedication to the rule of regulation, we respect the independence of the ICC. We are going to adjust to our worldwide obligations. There’s a home authorized course of by way of our unbiased courts that determines whether or not to endorse an arrest warrant by the ICC in accordance with the Worldwide Felony Court docket Act 2001. That course of has by no means been examined, as a result of the UK has by no means been visited by an ICC indictee. If there have been such a go to to the UK, there can be a court docket course of, and due course of can be adopted in relation to these points.
The query of State apply in response to the arrest warrant is of sign significance – a degree I’ll come to in a second. If you wish to see the growing place by States positions on the arrest warrant for Netanyahu, you possibly can observe a tracker on Simply Safety that does simply that.
That is severe stuff, and Prime Minister Netanyahu is aware of it. France, Italy and Greece allowed Netanyahu’s aircraft to fly over their airspace en path to the US on 7 July 2025. That itself raised eyebrows, with complaints that these states had been “actively sustaining an air hall for the ICC fugitive” – an honour that might not have been allowed for Putin if he needed to strive his luck at overflight. Nonetheless, one will get the sense that Netanyahu is aware of that is dangerous behaviour. To succeed in the UN in New York in late September 2025, he took a considerably longer flight route than obligatory, avoiding the airspace of a number of European international locations, which Israeli media reported was to keep away from overflying a rustic that might be obliged to arrest him. Earlier, Netanyahu added 400kms onto his flight from Budapest to Washington in April on account of fears about flying over international locations which can implement the arrest warrant, Israeli media reported on the time. Based on the reviews, Israeli authorities believed that Eire, Iceland and the Netherlands would implement the ICC warrant within the occasion that the aircraft wanted to make an emergency touchdown. A 2 February flight was additionally lengthened. The flight reportedly took an extended path over US military bases to make sure it didn’t need to make an emergency touchdown over ICC members in Europe. So if nothing else, the world is a little more precarious, a bit smaller, for these needed by the ICC, with cautious calculations being executed about immunities, their impact, and emergency touchdown pads in case of engine hassle.
That might be why President Herzog – relatively than Netanyahu – visited the UK in the course of September. One imagines feverish discussions between authorities attorneys, and a view rising that Herzog might have been a safer wager for journey to Britain and dialogue in Downing Avenue than Israel’s Prime Minister, exactly as a result of Herzog doesn’t have an ICC arrest warrant issued for him (but).
All of this raises fascinating and associated points. I contemplate three of them in flip.
First: is to notice that once more the controversy is fraught.
The battle between human rights and immunity is most acute in felony proceedings, the place a senior authorities official is sought to be introduced earlier than a world felony tribunal or home court docket charged with a severe worldwide crime and raises the plea of sovereign immunity as a defence or as bar to the jurisdiction of the court docket to strive him.
The query of the immunity of excessive State officers for severe worldwide crimes is likely one of the most contested points of up to date worldwide regulation. Moreover, positions seem to vary relying on who’s the topic of a warrant or indictment. It has divided judges of each worldwide and nationwide courts, led to fractious debates within the Worldwide Regulation Fee and spawned an acrimonious debate amongst students. And the potential for battle in worldwide regulation between the immunity loved by excessive State officers for conduct which constitutes worldwide crimes and the person accountability which attaches to these offences is acute as a result of the 2 areas of worldwide regulation developed individually, like two ships passing within the night time.
That stated, for a while already the doctrine of immunity has not been in a position to stand aloof from developments round accountability for worldwide crimes. Within the groundbreaking Pinochet circumstances, the Home of Lords denied immunity to Pinochet in his capability as a former head of state. Nevertheless, it made it clear that if he had nonetheless been in workplace, this immunity in worldwide regulation would have continued to subsist. Then, the Worldwide Court docket of Justice affirmed the immunity of sitting Heads of State in its choice within the Arrest Warrant case. Whereas it held that such immunity for Excessive Officers existed in customary worldwide regulation as a defence earlier than nationwide courts (§ 258), it discovered that an incumbent or former Minister for International Affairs could also be topic to felony proceedings earlier than sure worldwide felony courts.
Regardless of the deserves of the ICJ’s choice in Arrest Warrant – and the judgment has many detractors – for now it’s invoked by Attorneys-Common, authorities authorized advisers, and commentators to emphasize that customary worldwide regulation brooks no exception: Heads of State, even when needed for genocide, struggle crimes, or crimes in opposition to humanity, are immune from arrest and prosecution earlier than nationwide courts.
What about arrest warrants on the ICC? Immunity typically, that’s together with private immunity, from prosecution for worldwide crimes doesn’t apply in respect of a person topic to proceedings earlier than the Court docket: immunities aren’t any bar to prosecution for anybody suspected of a criminal offense throughout the jurisdiction of the Court docket. There isn’t a exception and no distinction between nationals or officers of a State Social gathering and people who aren’t. The exclusion is normal in character and was ratified as such by 125 State Events. Article 27 of the Rome Statute additional gives that neither practical nor private immunity can stop prosecution earlier than the ICC. So far as State Events are involved, their becoming a member of the Rome Statute constitutes an express abandonment of any declare of immunity in respect of these topic to expenses or warrants earlier than the Court docket (together with their very own officers).
However the subject has turn out to be significantly acute when international locations, like Sudan, Russia, and Israel, haven’t signed the Statute. In a number of selections, although its reasoning was not all the time solely constant, the ICC has held that Bashir bore no immunity from prosecution earlier than the ICC. This made it clear that the inapplicability of immunities in respect of ICC proceedings utilized equally and with out distinction to nationals and officers of non-state events, so long as the Court docket had jurisdiction over their conduct. The ICC Appeals Chamber, within the Jordan matter, handed down its judgment on the problem of immunity in 2019. The Appeals Chamber held that, as a matter of customary worldwide regulation, heads of state don’t get pleasure from immunity vis-à-vis a world court docket (§ 113). The Appeals Chamber additionally held that article 27(2) signifies that heads of state of States Events should not have immunity from arrest and give up by States Events to the Rome Statute (§ 120-122).
That results in the second subject: double requirements
Lord Verdirame KC and Richard Ekins KC (Hon) of their current contribution to the controversy have vigorously sought to defend immunities for Netanyahu, regardless of the ICC’s rulings on the contrary, together with as a result of as they are saying: “The US, our closest ally, has all the time objected to the place that its officers would don’t have any immunity earlier than the ICC”. In doing so, they’ve criticised the ICC’s selections, and so they have no less than recognised that their place raises issues about double-standards, saying that [w]e do respect the intuitive reluctance to simply accept the view that the UK ought to state (as different states have executed earlier than) that on this case it can not execute an arrest warrant by a world court docket.” And so they additional be aware the issues round “Western double requirements”.
They go on to say that one mustn’t “overplay the inconsistency between the positions taken by Western and different states events on arrest warrants in opposition to officers of various states”. In so doing they don’t take account of the numerous scholarship which underlines why double-standards bedevil the legitimacy of worldwide regulation, and the rule of regulation. Take the work of Professor John Dugard, who has famous the growing use by American leaders and officers of the time period “rules-based worldwide order”, as an alternative of worldwide regulation. Dugard has defined that the rules-based worldwide order could also be seen as the US’ different to worldwide regulation, an order that encapsulates worldwide regulation as interpreted by the US to accord with its nationwide pursuits, “a chimera, which means regardless of the US and its followers need it to imply at any given time”. Worldwide regulation is thus rendered malleable: “open to political manipulation and double requirements.” Professor Dugard’s criticisms have a prepared instance in relation to Israel’s exceptionalism within the secure bosom of American protectionism. As he explains:
The amorphous ‘guidelines’ of the RBO … make it simpler for a state to supply particular remedy to a different state and to condone its violations of worldwide regulation. America is ready to justify its refusal to carry Israel accountable for its violations of worldwide regulation by arguing that worldwide regulation as interpreted by the US – the RBO – permits assaults on Gaza as self-defence in opposition to terrorism, [allows] the assassination of militants/terrorists by drones, [allows] the applying of apartheid, the annexation of territory, and the continuation of an occupation which is extensively seen as unlawful.
In such a world of double-standards, the peremptory turns into permissive, and worldwide regulation a recreation the place the nationwide pursuits of the highly effective trump the beliefs of equal respect for common – erga omnes – values.
The priority round such double-standards shouldn’t be solely expressed by worldwide attorneys, it’s now additionally acknowledged by UK officers. Lord Hermer, the present Legal professional Common within the UK, in his Bingham Lecture on 14 October 2024 spoke emphatically about “worldwide regulation” as “the ‘Rule of Regulation’ writ giant”, and
[T]hat States should adjust to their worldwide obligations, simply as they need to adjust to home regulation.” Hermer defined that “[i]nternational regulation shouldn’t be merely some type of non-compulsory add-on, with which States can choose or select whether or not to conform.” And talking on to the issues round inconsistency and double-standards, Lord Hermer famous that “[i]n many elements of the world, particularly within the International South, the worldwide rules-based order and human rights are sometimes seen as imperialist constructs, selectively invoked by western governments when it fits their pursuits. It’s incumbent upon us to first, pay attention, to those that really feel unheard. And secondly, to display … that these actions have to be constant, we should present that we’ll maintain ourselves to the best requirements.
Third: getting state apply proper.
So the place the worldwide rule of regulation is likely to be revered, shouldn’t be solely by honouring ICC arrest warrants, even when in opposition to one’s allies. It’s also by contemplating the significance of closing impunity gaps the place attainable, and attempting to grasp and worth State apply correctly. Rebecca Ingber – who’s answerable for the Simply Safety mapping web site I discussed earlier – places it properly. She explains that in response to the ICC’s arrest warrants for Netanyahu and Gallant:
States have now offered a variety of reactions to the ICC’s choice, which might make clear their views relating to these and different authorized controversies in addition to on the Court docket’s legitimacy and standing on the planet. Some embrace political assist or political pushback, and a few embrace statements relating to their very own intent to adjust to the arrest warrants. The latter could also be related to ongoing consideration of customary worldwide regulation governing immunity.
Right here, it’s notable that Lord Verdirame and Mr Ekins of their essay in assist of Netanyahu’s immunity regardless of the ICC arrest warrants, say the next:
As famous, quite a lot of State events, together with South Africa, the Democratic Republic of Congo, Jordan, Chad, Nigeria, and Mongolia, have disagreed with the ICC and refused to execute arrest warrants in respect of people whom they thought-about to be entitled to immunity beneath worldwide regulation.
However that isn’t proper, so far as South Africa goes.
First, the place beneath South African regulation is evident from its highest courts. In Minister of Justice v SALC, the Supreme Court docket of Attraction famous that whether or not the accused is or was a Head of State doesn’t represent a defence for a criminal offense earlier than a South African court docket. Accordingly, no matter missteps by South African officers of their dealing with of Bashir’s go to, the South African courts have defined the proper authorized place that prevails in South Africa, which is the place that counts for State apply – and is the place the South African authorities has since accepted. The Supreme Court docket of Attraction stated this, which shouldn’t be missed:
[103] I conclude due to this fact that when South Africa determined to implement its obligations beneath the Rome Statute by passing the Implementation Act it did so on the premise that each one types of immunity, together with head of state immunity, wouldn’t represent a bar to the prosecution of worldwide crimes on this nation or to South Africa cooperating with the ICC by means of the arrest and give up of individuals charged with such crimes earlier than the ICC, the place an arrest warrant had been issued and a request for cooperation made. I settle for, within the gentle of the sooner dialogue of head of state immunity, that in doing so South Africa was taking a step that many different nations haven’t but taken. If that places this nation within the vanguard of makes an attempt to stop worldwide crimes and, after they happen, trigger the perpetrators to be prosecuted, that appears to me a matter for nationwide delight relatively than concern. It’s wholly in line with our dedication to human rights each at a nationwide and a world stage. And it doesn’t undermine customary worldwide regulation, which as a rustic we’re entitled to depart from by statute as said in s 232 of the Structure. What’s commendable is that it’s a departure in a progressive path.
Second, as to Putin himself, the place is once more clear due to developments which can be essential to register in any account of South Africa’s state apply.
The Putin saga in South Africa is in reality a salutary instance of how to make sure respect for worldwide regulation, regardless of the inevitable diplomacy controversies that come up for international locations who’re requested to arrest international leaders. On 17 March 2023, the ICC introduced that it had issued an arrest warrant for President Putin. This, unsurprisingly, occasioned world-wide curiosity and a focus. One focus of this was President Putin’s invitation, along with different Heads of State, to attend the August 2023 BRICS Summit hosted in South Africa – with South Africa being an ICC Rome Statute State Social gathering. Would Putin attend the Summit, or would he select to stay house in Moscow? If he did attend, would South Africa arrest him? If South Africa did not arrest him, wouldn’t it violate its worldwide and home authorized obligations?
These questions got here to a head in Could 2023. The Democratic Alliance (DA) – on the time the biggest opposition get together in South Africa – launched an pressing utility within the Pretoria Excessive Court docket, wherein the DA sought declaratory and interdictory aid: asking the Excessive Court docket to verify South Africa’s obligation to arrest President Putin, and to make sure that the mandatory steps had been taken to cultivate and execute the ICC arrest warrant. The seriousness of the matter was mirrored within the variety of worldwide and home NGOs that joined the litigation as amici curiae, broadly supporting the DA’s aid (together with Amnesty Worldwide, Human Rights Watch, the Worldwide Fee of Jurists and the Southern African Litigation Centre). The matter was in the end concluded by means of an agreed Court docket Order between the DA and the federal government, on the day of the listening to.
Whereas the Putin case didn’t expressly reveal what points had been in reality raised by the South African authorities in its consultations with the ICC, what was disclosed is the result of that engagement. Within the Order made by settlement earlier than the Pretoria Excessive Court docket, it was publicly recorded that:
The Worldwide Felony Court docket has concluded the article 97 consultations, and confirmed that the Republic of South Africa, and all different state events, are obligated to arrest President Putin by way of the ICC’s arrest warrant and requests for cooperation. (my emphasis).
The phrases of the Court docket Order makes clear that the Article 97 engagements had been finalised with a willpower by the ICC confirming that South Africa and all states events had been required to arrest President Putin pursuant to the ICC arrest warrant and its request for cooperation.
And the impact, as a matter of State apply, was momentous. President Ramaphosa introduced that President Putin would not be attending the BRICS summit in particular person (the one one in every of 5 BRICS Heads of State not to take action). It’s the first arrest warrant issued by a world felony tribunal for a sitting Head of State of a everlasting safety council member. Whereas South Africa was then – just like the UK and different States now – caught up within the delicate international relations points of getting to arrest Heads of State like Putin or Netanyahu, the South African authorities made the essential announcement that it took the mandatory steps to cultivate the ICC arrest warrant, so that ought to Putin ever enter South Africa, he can be arrested. On this regard, the Court docket Order within the Putin case recorded the next:
[The Director-General: Department of Justice and Constitutional Development] on 29 June 2023, signed a letter forwarding the ICC’s request for cooperation to the Nationwide Director for Public Prosecutions (NDPP) to use for an arrest warrant for President Putin by way of part 9(1) of the Implementation of the Rome Statute of the Worldwide Felony Court docket Act 27 of 2002, which was despatched to the NDPP by his workplace on 17 July 2023.
It stays to be seen how the UK and different European authorities will discharge their obligations had been Prime Minister Netanyahu to go to the UK or Europe relatively than fly over them or ship an emissary like President Herzog. South Africa’s instance reveals {that a} State Social gathering (just like the UK, or France, or Switzerland) is likely to be requested by the ICC to subject a request for cooperation to their nationwide prosecuting or police authorities for a home arrest warrant to be issued. In South Africa’s case, immunity for Putin as a Head of State was no bar to the issuance of that warrant by South Africa’s authorities. And South Africa’s authorities confirmed that it had in reality executed so, regardless of its well-publicised efforts to play a “non-aligned” function relating to the Ukraine/Russian struggle. That’s State apply price taking severely, and reflecting accurately.
