Pinochet, Bashir, Putin, Netanyahu, Gallant, Herzog: Immunities for High Officials – the Importance of Getting State Practice Right

Immunities are back in vogue.  And the debate about them – their relevance, and whether they can shield wanted war criminals from investigation, prosecution or issued arrest warrants – is again front and centre. Of critical importance, is the question of how States react to these debates, and the warrants that presage them.

Philippe Sands in his latest bestseller, 38 Londres Street: On Impunity, Pinochet in England and a Nazi in Patagonia, reminds us of Senator Augusto Pinochet’s perilous visit to the United Kingdom in 1998 and the judicial saga about his immunity as a former Head of State. 

After Pinochet’s travails before the English courts, the debate moved to the International Criminal Court (ICC), and whether President Bashir of Sudan had immunity before the ICC, and separately whether his immunity as a Head of State could shield him from the efforts by ICC member States to arrest and surrender him to The Hague.  There, multiple States – including the US, the UK and the EU felt aggrieved that South Africa had failed to arrest Bashir as he arrived to attend an African Union conference that South Africa was hosting, and called 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 first ICC warrant for a Head of State outside Africa – for war crimes committed in Ukraine.  With momentary amnesia about its previous aversion to the ICC, the US applauded the arrest warrant and encouraged the Court 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, said this as then-Labour leader: “Today’s announcement sends an important message: there will no hiding place for Putin and his cronies and the world is determined to make them pay for what they have done”.  

Now we have the more recent arrest warrants for Israeli Prime Minister Netanyahu and Defence Minister Gallant by the ICC, for war crimes alleged in Gaza. There have been interesting twists since. The US decried the issuing of the warrants by the same ICC that had done so well to issue the arrest warrants for Putin. France said it might not arrest Netanyahu because he had immunity, the same France that had criticised Mongolia for not arresting Putin who had the same immunity.  For its part, the UK has chosen its words carefully, saying:

In line with this Government’s stated commitment to the rule of law, we respect the independence of the ICC. We will comply with our international obligations. There is a domestic legal process through our independent courts that determines whether to endorse an arrest warrant by the ICC in accordance with the International Criminal Court Act 2001. That process has never been tested, because the UK has never been visited by an ICC indictee. If there were such a visit to the UK, there would be a court process, and due process would be followed in relation to those issues.

The question of State practice in response to the arrest warrant is of signal importance – a point I will come to in a moment. If you want to see the developing position by States positions on the arrest warrant for Netanyahu, you can follow a tracker on Just Security that does just that.

This is serious stuff, and Prime Minister Netanyahu knows it. France, Italy and Greece allowed Netanyahu’s plane to fly over their airspace en route to the United States on 7 July 2025.  That itself raised eyebrows, with complaints that these states were “actively maintaining an air corridor for the ICC fugitive” – an honour that would not have been allowed for Putin if he wanted to try his luck at overflight.  Still, one gets the sense that Netanyahu knows this is risky behaviour. To reach the UN in New York in late September 2025, he took a significantly longer flight route than necessary, avoiding the airspace of several European countries, which Israeli media reported was to avoid overflying a country that would be obliged to arrest him.  Earlier, Netanyahu added 400kms onto his flight from Budapest to Washington in April due to fears about flying over countries which may enforce the arrest warrant, Israeli media reported at the time. According to the reports, Israeli authorities believed that Ireland, Iceland and the Netherlands would enforce the ICC warrant in the event that the plane needed to make an emergency landing. A 2 February flight was also lengthened. The flight reportedly took a longer path over US army bases to ensure it did not have to make an emergency landing over ICC members in Europe. So if nothing else, the world is a bit more precarious, a bit smaller, for those wanted by the ICC, with careful calculations being done about immunities, their effect, and emergency landing pads in case of engine trouble. 

That may well be why President Herzog – rather than Netanyahu – visited the UK in the middle of September.  One imagines feverish discussions between government lawyers, and a view emerging that Herzog may have been a safer bet for travel to Britain and discussion in Downing Street than Israel’s Prime Minister, precisely because Herzog does not have an ICC arrest warrant issued for him (yet). 

All of this raises fascinating and related issues.  I consider three of them in turn.

First: is to note that again the debate is fraught. 

The conflict between human rights and immunity is most acute in criminal proceedings, where a senior government official is sought to be brought before an international criminal tribunal or domestic court charged with a serious international crime and raises the plea of sovereign immunity as a defence or as bar to the jurisdiction of the court to try him.  

The question of the immunity of high State officials for serious international crimes is one of the most contested issues of contemporary international law. Furthermore, positions appear to change depending on who is the subject of a warrant or indictment. It has divided judges of both international and national courts, led to fractious debates in the International Law Commission and spawned an acrimonious debate among scholars.  And the potential for conflict in international law between the immunity enjoyed by high State officials for conduct which constitutes international crimes and the individual responsibility which attaches to those offences is acute because the two areas of international law developed separately, like two ships passing in the night.

That said, for some time already the doctrine of immunity has not been able to stand aloof from developments around accountability for international crimes. In the groundbreaking Pinochet cases, the House of Lords denied immunity to Pinochet in his capacity as a former head of state. However, it made it clear that if he had still been in office, this immunity in international law would have continued to subsist. Then, the International Court of Justice affirmed the immunity of sitting Heads of State in its decision in the Arrest Warrant case. While it held that such immunity for High Officials existed in customary international law as a defence before national courts (§ 258), it found that an incumbent or former Minister for Foreign Affairs may be subject to criminal proceedings before certain international criminal courts.

Whatever the merits of the ICJ’s decision in Arrest Warrant – and the judgment has many detractors – for now it is invoked by Attorneys-General, government legal advisers, and commentators to stress that customary international law brooks no exception: Heads of State, even when wanted for genocide, war crimes, or crimes against humanity, are immune from arrest and prosecution before national courts.

What about arrest warrants at the ICC? Immunity in general, that is including personal immunity, from prosecution for international crimes does not apply in respect of an individual subject to proceedings before the Court: immunities are no bar to prosecution for anyone suspected of a crime within the jurisdiction of the Court. There is no exception and no distinction between nationals or officials of a State Party and those who are not. The exclusion is general in character and was ratified as such by 125 State Parties. Article 27 of the Rome Statute further provides that neither functional nor personal immunity can prevent prosecution before the ICC. As far as State Parties are concerned, their joining the Rome Statute constitutes an explicit abandonment of any claim of immunity in respect of those subject to charges or warrants before the Court (including their own officials). 

But the issue has become particularly acute when countries, like Sudan, Russia, and Israel, have not signed the Statute. In multiple decisions, though its reasoning was not always entirely consistent, the ICC has held that Bashir bore no immunity from prosecution before the ICC. This made it clear that the inapplicability of immunities in respect of ICC proceedings applied equally and without distinction to nationals and officials of non-state parties, as long as the Court had jurisdiction over their conduct. The ICC Appeals Chamber, in the Jordan matter, handed down its judgment on the issue of immunity in 2019. The Appeals Chamber held that, as a matter of customary international law, heads of state do not enjoy immunity vis-à-vis an international court (§ 113). The Appeals Chamber also held that article 27(2) means that heads of state of States Parties do not have immunity from arrest and surrender by States Parties to the Rome Statute (§ 120-122).

That leads to the second issue: double standards

Lord Verdirame KC and Richard Ekins KC (Hon) in their recent contribution to the debate have vigorously sought to defend immunities for Netanyahu, despite the ICC’s rulings to the contrary, including because as they say: “The US, our closest ally, has always objected to the position that its officials would have no immunity before the ICC”. In doing so, they have criticised the ICC’s decisions, and they have at least recognised that their position raises concerns about double-standards, saying that [w]e do appreciate the intuitive reluctance to accept the view that the UK should state (as other states have done before) that in this case it cannot execute an arrest warrant by an international court.”  And they further note the concerns around “Western double standards”.

They go on to say that one should not “overplay the inconsistency between the positions taken by Western and other states parties on arrest warrants against officials of different states”.  In so doing they do not take account of the significant scholarship which underlines why double-standards bedevil the legitimacy of international law, and the rule of law.  Take the work of Professor John Dugard, who has noted the increasing use by American leaders and officials of the term “rules-based international order”, instead of international law.  Dugard has explained that the rules-based international order may be seen as the United States’ alternative to international law, an order that encapsulates international law as interpreted by the United States to accord with its national interests, “a chimera, meaning whatever the US and its followers want it to mean at any given time”. International law is thus rendered malleable: “open to political manipulation and double standards.”  Professor Dugard’s criticisms have a ready example in relation to Israel’s exceptionalism in the safe bosom of American protectionism.  As he explains:

The amorphous ‘rules’ of the RBO … make it easier for a state to provide special treatment to another state and to condone its violations of international law. The United States is able to justify its refusal to hold Israel accountable for its violations of international law by arguing that international law as interpreted by the United States – the RBO – allows assaults on Gaza as self-defence against terrorism, [allows] the assassination of militants/terrorists by drones, [allows] the application of apartheid, the annexation of territory, and the continuation of an occupation which is widely seen as illegal.

In such a world of double-standards, the peremptory becomes permissive, and international law a game where the national interests of the powerful trump the ideals of equal respect for universal – erga omnes –  values.  

The concern around such double-standards is not only expressed by international lawyers, it is now also acknowledged by UK officials. Lord Hermer, the current Attorney General in the UK, in his Bingham Lecture on 14 October 2024 spoke emphatically about “international law” as “the ‘Rule of Law’ writ large”, and

[T]hat States must comply with their international obligations, just as they must comply with domestic law.”  Hermer explained that “[i]nternational law is not simply some kind of optional add-on, with which States can pick or choose whether to comply.” And speaking directly to the concerns around inconsistency and double-standards, Lord Hermer noted that “[i]n many parts of the world, especially in the Global South, the international rules-based order and human rights are often seen as imperialist constructs, selectively invoked by western governments when it suits their interests. It is incumbent upon us to first, listen, to those who feel unheard. And secondly, to demonstrate … that those actions must be consistent, we must show that we will hold ourselves to the highest standards.

Third: getting state practice right. 

So where the international rule of law might be respected, is not only by honouring ICC arrest warrants, even when against one’s allies.  It is also by considering the importance of closing impunity gaps where possible, and trying to understand and value State practice properly. Rebecca Ingber – who is in charge of the Just Security mapping website I mentioned earlier – puts it well. She explains that in response to the ICC’s arrest warrants for Netanyahu and Gallant: 

States have now provided a range of reactions to the ICC’s decision, which can shed light on their views regarding these and other legal controversies as well as on the Court’s legitimacy and standing in the world. Some include political support or political pushback, and some include statements regarding their own intent to comply with the arrest warrants. The latter may be relevant to ongoing consideration of customary international law governing immunity.

Here, it is notable that Lord Verdirame and Mr Ekins in their essay in support of Netanyahu’s immunity despite the ICC arrest warrants, say the following:

As noted, a number of State parties, including 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 individuals whom they considered to be entitled to immunity under international law.

But that is not right, as far as South Africa goes.

First, the position under South African law is clear from its highest courts. In Minister of Justice v SALC, the Supreme Court of Appeal noted that whether the accused is or was a Head of State does not constitute a defence for a crime before a South African court. Accordingly, whatever missteps by South African officials in their handling of Bashir’s visit, the South African courts have explained the correct legal position that prevails in South Africa, which is the position that counts for State practice – and is the position the South African government has since accepted. The Supreme Court of Appeal said this, which should not be overlooked:

[103] I conclude therefore that when South Africa decided to implement its obligations under the Rome Statute by passing the Implementation Act it did so on the basis that all forms of immunity, including head of state immunity, would not constitute a bar to the prosecution of international crimes in this country or to South Africa cooperating with the ICC by way of the arrest and surrender of persons charged with such crimes before the ICC, where an arrest warrant had been issued and a request for cooperation made. I accept, in the light of the earlier discussion of head of state immunity, that in doing so South Africa was taking a step that many other nations have not yet taken. If that puts this country in the vanguard of attempts to prevent international crimes and, when they occur, cause the perpetrators to be prosecuted, that seems to me a matter for national pride rather than concern. It is wholly consistent with our commitment to human rights both at a national and an international level. And it does not undermine customary international law, which as a country we are entitled to depart from by statute as stated in s 232 of the Constitution. What is commendable is that it is a departure in a progressive direction.

Second, as to Putin himself, the position is again clear because of developments that are important to register in any account of South Africa’s state practice.

The Putin saga in South Africa is in fact a salutary example of how to ensure respect for international law, despite the inevitable diplomacy controversies that arise for countries who are asked to arrest foreign leaders. On 17 March 2023, the ICC announced that it had issued an arrest warrant for President Putin. This, unsurprisingly, occasioned world-wide interest and attention. One focus of this was President Putin’s invitation, together with other Heads of State, to attend the August 2023 BRICS Summit hosted in South Africa – with South Africa being an ICC Rome Statute State Party. Would Putin attend the Summit, or would he choose to remain home in Moscow? If he did attend, would South Africa arrest him? If South Africa failed to arrest him, would it violate its international and domestic legal obligations? 

These questions came to a head in May 2023. The Democratic Alliance (DA) – at the time the largest opposition party in South Africa – launched an urgent application in the Pretoria High Court, in which the DA sought declaratory and interdictory relief: asking the High Court to confirm South Africa’s obligation to arrest President Putin, and to ensure that the necessary steps were taken to domesticate and execute the ICC arrest warrant. The seriousness of the matter was reflected in the number of international and domestic NGOs that joined the litigation as amici curiae, broadly supporting the DA’s relief (including Amnesty International, Human Rights Watch, the International Commission of Jurists and the Southern African Litigation Centre). The matter was ultimately concluded by way of an agreed Court Order between the DA and the government, on the day of the hearing.  

While the Putin case did not expressly reveal what issues were in fact raised by the South African government in its consultations with the ICC, what was disclosed is the outcome of that engagement. In the Order made by agreement before the Pretoria High Court, it was publicly recorded that:

The International Criminal Court has concluded the article 97 consultations, and confirmed that the Republic of South Africa, and all other state parties, are obligated to arrest President Putin in terms of the ICC’s arrest warrant and requests for cooperation. (my emphasis).

The terms of the Court Order makes clear that the Article 97 engagements had been finalised with a determination by the ICC confirming that South Africa and all states parties were required to arrest President Putin pursuant to the ICC arrest warrant and its request for cooperation. 

And the effect, as a matter of State practice, was momentous. President Ramaphosa announced that President Putin would no longer be attending the BRICS summit in person (the only one of five BRICS Heads of State not to do so). It is the first arrest warrant issued by an international criminal tribunal for a sitting Head of State of a permanent security council member. While South Africa was then – like the UK and other States now – caught up in the delicate foreign relations issues of having to arrest Heads of State like Putin or Netanyahu, the South African government made the important announcement that it took the necessary steps to domesticate the ICC arrest warrant, so that should Putin ever enter South Africa, he would be arrested. In this regard, the Court Order in the Putin case recorded the following: 

[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 National Director for Public Prosecutions (NDPP) to apply for an arrest warrant for President Putin in terms of section 9(1) of the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002, which was sent to the NDPP by his office on 17 July 2023.

It remains to be seen how the UK and other European authorities will discharge their obligations were Prime Minister Netanyahu to visit the UK or Europe rather than fly over them or send an emissary like President Herzog. South Africa’s example shows that a State Party (like the UK, or France, or Switzerland) might be requested by the ICC to issue a request for cooperation to their national prosecuting or police authorities for a domestic 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 government confirmed that it had in fact done so, despite its well-publicised efforts to play a “non-aligned” role regarding the Ukraine/Russian war. That is State practice worth taking seriously, and reflecting correctly.  

Article originally posted on EJIT:Talk!