The issue of immunity in the presence of the International Criminal Court (‘the ICC’) has revived with the subject of the warrant for arrest against the head of State of the Russian Federation. Whether or not immunity bars the ICC from prosecuting the current Head of State who has not signed the Statute depends on whether the Head of State can count on immunity under the law of customary international law concerning the international courts. I was negative; this would mean there is no barrier to prosecuting not only nationals of members of the Statute under Article 27(2) and cutoff non-member states (even in the absence of any UN Security Council referral). A related issue is whether the lack of immunity about the ICC also impacts the horizontal, i.e., between the State that arrests an accused person to turn the accused to the ICC and a State with the citizenship of the person charged. In academic discourse there are many opinions on these issues are debated. This article does not try to tackle all these critiques. Instead, it examines the implications of current international judicial practices on the need to arrest the president of the Russian Federation to bring him before the ICC.

The State results from international law that is customary regarding immunities in international courts.

It is essential to review the law of international custom to say about immunity. International law recognizes two kinds of immunity from jurisdiction in those courts in other States for the Heads of State. First, in the context of the rationale of personal exemption, when Heads of State remain in the position of power, they can defend themselves when a foreign tribunal. As per the International Court of Justice (‘the ICJ’), this will be the case regardless of whether the actions they did were committed in a private or official capacity or if the acts were engaged during their time at work or before they were allowed to enter into the offices ( DRC v. Belgium, paras. 51 and 58). The question of whether this complete inviolability applies to international crimes, too, is not in doubt ( Miguel Lemos). In the second, by the doctrine of rational material immunity in which, the Heads of State stop to be in office and are no longer in the position of being subject to prosecution by the justices of different States for the acts they did in the exercise of their duties when they were in the post ( DRC v. Belgium, para. 60) . Arguably the ‘official function exemption cannot be immunity for crimes committed internationally since many of these crimes carry an inherent state policy aspect and the reason for them is shattered if an exemption applies to them since they are classified as public or governmental.

In the same way, as per the ICJ immunity rules, it is not an obstacle to prosecution if an official, whether former or incumbent, is under the legal jurisdiction of an international criminal tribunal ( Ibid. Para. 61). In fact, this law is specifically enshrined in the statutes of a variety of international criminal tribunals. This includes the Statute for the International Criminal Tribunal (Article 27 of the Rome Statute). The ICJ recognizes that neither individual nor substantive immunity could hinder prosecution in an international criminal court when the tribunal is in the jurisdiction. It would seem to be the most likely conclusion for those states who have ratified the relevant treaty.

The ICC faced the issue of immunities numerous times concerning Al-Bashir, the then-independent Head of State. And the Court’s approach was different over the years. In 2011, for instance, it concluded that the Republic of Malawi failed to cooperate with the Court in refusing to give up the Al-Bashir case ( Malawi Decision). The Court, in its decision, ruled that ‘the fundamental principle in international law states that the immunity of former or current Heads of State can’t be invoked in opposition to the prosecution of the international courts’ ( Ibid. , para. 36). The international community’s determination to deny immunity when international courts demand arrest in connection with transnational crime has reached a threshold. If it was ever acceptable to say that, it’s not appropriate anymore to assert that the immunity from customary international law applies in the current context ( Ibid. , para. 42 stress added). In 2017 Pre-Trial Chamber II in 2017, Pre-Trial Chamber II conversely appeared to have given a significant significance to the obligations outlined in Resolution 1593 of the UN Security Council Resolution 1593 and not to the customary international law ( South Africa Decision Paras. 84-97 and 107). It concluded that due to the Security Council’s remit, Sudan could exercise rights and obligations similar to those of States Participants of the Statute, which led to the lifting of the immunity ( Ibid., paras. 88 and 91).