The Riddle of Personal Immunity: Have We Arrived at the Conclusion?

International peace and security have been under dynamic circumstances over the last few years by multiple events occurred from Russia’s aggression towards Ukraine until Israel’s genocide towards Palestinians recently. In such crises, the public eye is directed towards the sole permanent institution that is awarded with power to enforce international criminal law over most serious crimes of international concern, i.e. International Criminal Court (ICC). It is indeed has exercised its jurisdiction exemplified by its first arrest warrant for Vladimir Vladimirovich Putin and Maria Alekseyevna Lvova-Belova on 17th of  March 2023.

Contrast to its political and racial bias records , Putin’s arrest warrant marks the shift of ICC towards prosecuting head of state of UNSC permanent members. However, before we celebrate this progressive step, the most pressing issue has raised relating to whether Putin’s personal immunity, which is an incumbent head of state of non-state parties to Rome Statute, can be denied by ICC? This complexity is added by the fact that the investigation is initiated, obviously, not by UNSC referral under Article 13 (b) of Rome Statute. Instead, it was conducted proprio motu by the Prosecutor. This article will analyze the Putin’s arrest warrant by placing it into theoretical debate of personal immunity status and finally provide a conclusion from my point of view.

Inapplicability of Personal Immunity in International Crime as Customary International Law?

As the first international criminal tribunal after World War II, The Nuremberg Trial has placed foundational principles to the next development of international criminal law. One notable principle was embodied in Article 7 of Charter of the International Military Tribunal stating that “The official position of defendants, whether as Heads of State or responsible official in Government Departments, shall not be considered as freeing them responsibility or mitigating punishment.” The irrelevance of immunity  applied not only to international prosecution, but also to domestic trial of war criminal. The principle latter was affirmed through United Nations General Assembly (UNGA) Resolution 95 (I) that clearly expressed its intention to translate IMT principles into general principles of customary law binding on member States of the whole international community.

Accordingly, until this stage, there’s no notion such as absolute immunity both in form of 1) ratione personae (personal immunity) that protects an incumbent head of States both in  official or private actions and ceases to exist when she leaves the office and  2) ratione materiae (functional immunity) that protects former head of States just for her official actions. Such position then followed by certain international tribunals, i.e. International Criminal Tribunal for the former Yugoslavia (ICTY), International Criminal Tribunal for Rwanda (ICTR), and Special Court for Sierra Leone (SCSL).

Nonetheless, the state practices after IMT judgments showed an incremental shift from the inapplicability of absolute immunity. In Pinochet Case,  while it contended that Senator Pinochet enjoyed no functional immunity because his acts were categorized as private act,  majority of the Law Lords admitted that the personal immunity enjoyed by a serving Head of State (ratione personae) was absolute. The climax of  this process was Arrest Warrant Case in which ICJ explicitly stated it was unable to deduce the existence of customary international law any form of exception to immunity. This judgment was clearly opposite to what IMT and UNGA Resolution 95 (I) intended. Heads of State, diplomatic representatives, ministers of foreign affairs can be prosecuted before national courts once leaving office and only for acts committed prior or subsequently to herm term in office or committed privately during period in office.

The lack of status as customary international law means that both form of immunities are generally applicable even in the context of international crime, except in limited circumstances. Two of these exceptions are the waiver of immunity by the State and criminal proceedings before certain international court. Hence, latest development on the matter shows that there exist an absolute immunity subject to particular exceptions. With that being said, the inapplicability of personal immunity in international crime is not a customary international law.

Law Enforcement Against Head of State in International Criminal Court

Since its establishment until this article is written, ICC has issued four arrest warrants for head of states. The first was incumbent president of Sudan, al-Bashir, on 4 March 2009, then incumbent president of Libya, Muammar Gaddafi, on 27 June 2011, incumbent president of Ivory  Coast (Côte d’Ivoire), Laurent Gbagbo, on 23 November 2011, and the latest is incumbent president of Rusia, Vladimir Putin, on 17 March 2023. If the inapplicability of immunity in international crime is not customary international law, thus head of state is always immune,  on what basis did the ICC issue those arrest warrants?

In the case of Omar al-Bashir and Muammar Gaddafi, both situations were referred by United Nations Security Council (UNSC) acting under Chapter VII of UN Charter through UNSC Resolution 1593 and 1970 respectively.  Article 25 UN Charter emphasized that UN members agree to accept and carry out the decisions of UNSC. Moreover, Article 103 of UN Charter underlines the primacy of UN Charter over other state obligations. Therefore, all states are bound to the resolution and the prosecution is inevitable albeit both Sudan and Libya was not state parties of Rome Statute. As regard to Laurent Gbagbo, Côte d’Ivoire has accepted the jurisdiction of ICC on 18 April 2003 and this acceptance was counted as waiver of immunity. Thus, in line with Arrest Warrant Case, such waiver is the exception of absolute immunity.

Then how about the Putin’s arrest warrant? The situation was clearly not referred by UNSC and Rusia is not state parties of Rome Statute. Without the customary status of inapplicability of immunity in international crime, it is untenable to defend Putin’s arrest warrant. It shall be underlined that jurisdiction over crime does not imply an absence of immunity and vice versa. This lack of customary status are amplified by recent debates (see here and here) on academic sphere regarding to what is the best forum to prosecute Putin without hinderance of immunity. Furthermore, the Rome Statute itself contains provision that denotes the applicability of immunity even in the context of international crime by the operation of Article 98 (1).

Some may argue that referring to Arrest Warrant Case, the immunity of head of state can be removed before certain international court. But what exactly is “certain” international court and why an international court that is established by states are entitled to set aside immunity while individual state itself cannot do so? As pointed out by Prof. Heller,  it’s logical that states cannot delegate to the Court the power they do not themselves possess.

On this matter, I would like to respond  Yaman’s article, in which she cited ICC’s Appeals Chamber argument that, according to numerous ad hoc tribunals, immunity cannot stand as a bar to ICC’s jurisdiction thus even the third state is obliged to cooperate with ICC. Firstly, unlike ICTY and ICTR that were established by UNSC under Article VII, ICC is based on consensual treaty. Without expressed consent and UNSC referral, the third party such as Rusia cannot be bound by Rome Statute and mutatis mutandis Article 27 of Rome Statute relating to irrelevance of official capacity (inapplicability of immunity).

Secondly, the Appeals Chamber’s statement on the inapplicability of immunity in relation to international court such as ICC is highly problematic if we look into the language of Article 98 (1) of Rome Statute. The article explicitly states “ The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity…”. The Appeals Chamber further argues that this article does not itself stipulate, recognize, or preserve any immunities since it is a procedural rule that determines how the court is to proceed where any immunity exists such that it could stand in the way of a request for cooperation. However, such reason is problematic, the question is why then there’s such article if the drafters of Rome Statute intended to not recognize any immunity? The fact that such procedural rule exist is a prima facie for the recognition of immunity. The only reconciliation path between Article 27 and Article 98 (1) of Rome Statute is through UNSC referral (Article 13 (b)). In the latter case, it’s plausible for ICC to exercise Article 27 while admitting the application of Article 98 (1) is excluded by UNSC referral. However, consequently, without UNSC referral, Article 98 (1) must be enforced.

By virtue of those arguments, we haven’t arrived at the conclusion of personal immunity position in relation to international crime. More inquiries need to be done to bridge the theoretical urgency to set aside immunity in international crime and the recent practice of court and states.

Nivia is undergraduate law student of Gadjah Mada University, Indonesia, majoring international law. She currently works as research assistant for Gadjah Mada Center for Energy Study as well as Institute for Criminal Justice Reform (Indonesian based NGO). She is writing her thesis on TWAIL approach to ecocide. She also has several publications including journal, essay, and opinion in mass media.