Head of State Immunity before the International Criminal Court (ICC)

The customary rules on head-of-state immunity are among the oldest in international law. These are procedural rules that concern which courts have jurisdiction to hear a particular case. Immunity rules do not address the question of material responsibility for e.g. international crimes. Rather, they determine where – in which forum – such responsibility can be enforced. The clear starting point is that heads of state, heads of government and foreign ministers (“the troika”) enjoy personal immunity and inviolability, and therefore cannot be subjected to the authority of a foreign state, including prosecution before that state’s domestic courts. With the development of international criminal law – founded after World War II and gaining momentum especially since the 1990s – questions have arisen about whether personal immunity still protects state leaders from prosecution for international crimes. The debate centers on whether international criminal courts – particularly the International Criminal Court (ICC) – have a legal basis to override immunity. Leading judgments on this issue from the International Court of Justice (ICJ) and the ICC point to different conclusions. This places states like Denmark in a difficult legal dilemma, which has become highly relevant due to the ICC cases involving Russian President Vladimir Putin and Israeli Prime Minister Benjamin Netanyahu. The report maps the legal developments regarding personal immunity, including the recent establishment of the Special Tribunal for the Crime of Aggression against Ukraine (STCAU), and analyzes the dominant arguments for why immunity no longer applies before the ICC.

The report’s primary aim is to clarify a controversial and complex issue in international law. By way of conclusion, the report offers the following recommendations to Danish authorities and decision-makers:

• Think principled and long-term: Denmark’s positions on specific international legal issues should consider the long-term consequences for the international legal order. This involves avoiding double standards and promoting consistent application of international law.
• Acknowledge the complexity of the immunity issue and consider supporting a request for an advisory opinion from the ICJ: There is significant legal uncertainty about the current state of law regarding head-of-state immunity before international courts. The ICJ’s 2002 judgment in Arrest Warrant requires a legal basis to override personal immunity, and it is unclear what legal basis is in relation to e.g. Putin and Netanyahu. To clarify the applicable law, Danish decision-makers could consider promoting a request from the UN General Assembly for an advisory opinion from the ICJ.
• Consider dialogue with the ICC: Ambiguous statements from ICC member states about the legal situation undermine the ICC’s authority in the long term and should be avoided. Denmark should consider initiating a constructive dialogue with the ICC—possibly through the Assembly of State Parties—on the issue of head-of-state immunity.