ICC Arrest Warrant: Is it permissible to arrest the Head of a State?

On May 20, 2024, the chief prosecutor of the International Criminal Court (ICC), Karim Khan, announced that he would seek issuance of arrest warrants against the Israeli Prime Minister Benjamin Netanyahu and the Israeli Minister of Defence, Yoav Gallant along with three senior Hamas officials. This would not be the first instance, that the ICC would issue a warrant of arrest against a head of a state. Last year, the ICC issued arrest warrants against Vladimir Putin, the President of Russia, and Maria Lvova-Belova, Russian Commissioner for Children's Rights, for war crimes committed during the war against Ukraine.

While ICC has the mandate to try individuals, regardless of the position they hold, for alleged commission of international crimes such as genocide, crimes against humanity, war crimes etc, the arrest of such individuals has been an issue of debate. Article 58 of the Rome Statute of the ICC allows a Pre-Trial Chamber on the application of the Prosecutor to issue a warrant of arrest against a person, if it is satisfied that: (a) there are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court; and (b) the arrest of the person appears necessary. Article 59 further puts obligation upon a state party which has received a request for arrest to immediately take steps to arrest the person in question in accordance with its laws. If the state does not allow interim release on urgent and exceptional circumstances, it is obligated to deliver the person to the Court as soon as possible.

Head of States enjoy immunity from criminal jurisdiction in their state as well as in foreign lands. The International Court of Justice (ICJ) in the Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), found that an arrest warrant issued by Belgium against the Minister of Foreign Affairs of the Democratic Republic of the Congo, failed to respect the immunity from criminal jurisdiction that the incumbent minister enjoyed under customary international law and that the immunity was absolute in nature. However, ICC has in its practice, departed from this view.

A pre-trial chamber of ICC issued an arrest warrant against Omar al-Bashir, then reigning president of Sudan on 4 March 2009, indicting him on five counts of crimes against humanity and two counts of war crimes, directed against the civilians of Darfur. A second arrest warrant was issued later on 12 July 2010, adding 3 counts of genocide. He was the first sitting head of state ever to be indicted by the ICC.

Sudan was not a state party to the Rome Statute establishing the ICC and thus claimed that it did not have to execute the warrant. However, United Nations Security Council Resolution 1593 referred Sudan to the ICC, which gave ICC jurisdiction over international crimes committed in Sudan and obligated its government to cooperate with the ICC. Following the indictment, al-Bashir visited several countries in Asia, Europe and Africa, all of which refused to arrest him. In 2015, during a visit to South Africa for an African Union (AU) meeting, a South African court prohibited al-Bashir from leaving the country, while it deliberated whether to hand him over to the ICC. He was later allowed to leave.

In 2017, Pre-Trial Chamber II of the ICC addressed South Africa's failure to arrest and transfer al-Bashir to the Court under Article 87(7) of the ICC Statute. South Africa contended that it did not have a duty to arrest al-Bashir, since he enjoyed immunity under customary international law as well as the Host Agreement between South Africa and the AU for the purposes of the 2015 AU Summit, which granted immunity to certain members of the AU Commission. The Pre-Trial chamber first stated that al-Bashir attended the summit as the Head of State of Sudan, not as a member of the AU Commission. Regarding immunity under customary international law, the Chamber found that no rule under customary international law excludes the immunity of Heads of State when their arrest is sought by an international court such as the ICC. It added that the consideration in this case was not whether such immunity would bar the Court from exercising its jurisdiction, but whether South Africa had a duty to arrest al-Bashir. The Chamber stressed that if the drafters of the Statute wished to exclude the immunity of Heads of State from the Court's jurisdiction but not from arrest by a State Party, they would have expressly done so.

The same Pre-Trial Chamber in 2017, regarding Jordan's refusal to arrest and transfer al-Bashir to the ICC, after he attended an Arab League Summit in Jordan in March 2017, found that Jordan was under a "clear and unambiguous obligation" to arrest al-Bashir. On this occasion, the Chamber even went on to refer Jordan's non-compliance to the Assembly of State Parties of the ICC and the Security Council.

It is the political will of the States to co-operate with the ICC and comply with an arrest warrant. ICC may deal with failure to co-operate, including through referral to the Assembly of State Parties and the Security Council. The Security Council may impose sanctions on a country for its non co-operation as well. However, even the imposition of such sanctions would depend on the political will of the Permanent members of the Security Council.

The writer teaches at the Department of Law, Port City International University.