Resistances are back in vogue. And the debate about them– their relevance, and whether they can secure desired war bad guys from examination, prosecution or released arrest warrants– is once again front and centre. Of vital significance, is the inquiry of exactly how States react to these disputes, and the warrants that presage them.
Philippe Sands in his most recent bestseller, 38 Londres Road: On Immunity, Pinochet in England and a Nazi in Patagonia , reminds us of Legislator Augusto Pinochet’s treacherous check out to the UK in 1998 and the judicial legend concerning his resistance as a previous President.
After Pinochet’s travails before the English courts, the discussion relocated to the International Crook Court (ICC), and whether President Bashir of Sudan had immunity prior to the ICC, and independently whether his immunity as a President can secure him from the efforts by ICC participant States to apprehend and surrender him to The Hague. There, multiple States– consisting of the US, the UK and the EU felt hurt that South Africa had actually failed to detain Bashir as he showed up to attend an African Union seminar that South Africa was organizing, and hired South Africa to release its obligations as a Rome Law member and hand him over to the ICC Then, President Putin’s Russia got into Ukraine, and the ICC provided an apprehension warrant for him– the initial ICC warrant for a Head of State outside Africa– for war crimes devoted in Ukraine. With short-term amnesia regarding its previous hostility to the ICC, the US applauded the apprehension warrant and encouraged the Court to do its work. Britain too welcomed the releasing of the arrest warrant for Vladimir Putin. Sir Keir Starmer, a former director of public prosecutions, stated this as then-Labour leader:” Today’s announcement sends out an essential message: there will certainly no hiding place for Putin and his cronies and the globe is figured out to make them spend for what they have actually done
Currently we have the more recent arrest warrants for Israeli Head of state Netanyahu and Defence Minister Gallant by the ICC, for battle criminal activities declared in Gaza. There have been fascinating spins 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 stated it could not arrest Netanyahu due to the fact that he had resistance, the very same France that had criticised Mongolia for not jailing Putin that had the very same resistance. For its part, the UK has picked its words meticulously, claiming :
According to this Federal government’s mentioned dedication to the regulation of legislation, we appreciate the independence of the ICC. We will abide by our global commitments. There is a residential legal procedure through our independent courts that figures out whether to back an apprehension warrant by the ICC based on the International Criminal Court Act 2001 That procedure has never ever been tested, since the UK has actually never ever been seen by an ICC indictee. If there were such a visit to the UK, there would be a court procedure, and due process would certainly be complied with in connection with those issues
The inquiry of State method in response to the apprehension warrant is of signal importance– a factor I will certainly concern momentarily. If you wish to see the establishing position by States placements on the apprehension warrant for Netanyahu, you can comply with a tracker on Simply Security that does just that.
This is significant stuff, and Head of state Netanyahu understands it. France, Italy and Greece enabled Netanyahu’s airplane to fly over their airspace en path to the USA on 7 July 2025 That itself raised eyebrows, with grievances that these states were “proactively keeping an air passage for the ICC fugitive” — an honour that would not have actually been permitted Putin if he intended to attempt his good luck at overflight. Still, one obtains the feeling that Netanyahu recognizes this is high-risk practices. To get to the UN in New York in late September 2025, he took a substantially longer trip course than required, staying clear of the airspace of a number of European countries, which Israeli media reported was to prevent overflying a country that would be required to arrest him. Earlier, Netanyahu included 400 kilometres onto his trip from Budapest to Washington in April as a result of anxieties about flying over nations which may implement the arrest warrant, Israeli media reported at the time. According to the reports , Israeli authorities believed that Ireland, Iceland and the Netherlands would certainly apply the ICC warrant in case the plane needed to make an emergency situation touchdown. A 2 February flight was likewise extended. The trip reportedly took a much longer course over US army bases to guarantee it did not have to make an emergency situation touchdown over ICC members in Europe. So if nothing else, the world is a little bit much more precarious, a bit smaller sized, for those desired by the ICC, with cautious estimations being done concerning resistances, their result, and emergency situation landing pads in instance of engine problem.
That might well be why President Herzog– rather than Netanyahu– checked out the UK in the middle of September. One envisions feverish discussions in between government attorneys, and a sight emerging that Herzog may have been a safer wager for traveling to Britain and discussion in Downing Road than Israel’s Prime Minister, exactly due to the fact that Herzog does not have an ICC apprehension warrant released for him (yet).
All of this raises fascinating and relevant concerns. I take into consideration three of them consequently.
First: is to keep in mind that once again the dispute is fraught
The problem between civils rights and immunity is most severe in criminal procedures, where an elderly government authorities is looked for to be brought before a worldwide criminal tribunal or residential court charged with a major worldwide criminal offense and increases the plea of sovereign resistance as a protection or as bar to the territory of the court to try him.
The question of the immunity of high State authorities for major global criminal activities is just one of one of the most opposed concerns of modern international regulation. Moreover, settings show up to transform relying on that is the subject of a warrant or indictment. It has actually separated judges of both worldwide and national courts, caused fractious disputes in the International Legislation Payment and spawned an acrimonious argument among scholars. And the possibility for problem in worldwide law in between the resistance taken pleasure in by high State authorities for conduct which comprises international crimes and the specific duty which connects to those offences is intense since the two areas of worldwide law created independently, like two ships coming on the evening.
That claimed, for a long time already the teaching of resistance has not had the ability to stand aloof from advancements around liability for international crimes. In the groundbreaking Pinochet situations, your house of Lords rejected immunity to Pinochet in his capability as a previous president. However, it made it clear that if he had actually still been in workplace, this immunity in global regulation would certainly have continued to subsist. Then, the International Court of Justice attested the resistance of sitting Presidents in its decision in the Apprehension Warrant case. While it held that such immunity for High Authorities existed in traditional worldwide law as a defence before national courts ( § 258, it found that an incumbent or former Preacher for Foreign Matters may go through criminal process prior to particular international criminal courts.
Whatever the advantages of the ICJ’s decision in Apprehension Warrant — and the judgment has numerous detractors– for now it is invoked by Attorneys-General, federal government lawyers, and analysts to stress that traditional global regulation creeks no exemption: Heads of State, even when wanted for genocide, battle criminal offenses, or criminal offenses against mankind, are immune from arrest and prosecution before nationwide courts.
What regarding apprehension warrants at the ICC? Resistance generally , that is consisting of personal immunity, from prosecution for worldwide criminal offenses does not apply in regard of an individual subject to proceedings before the Court: resistances are no bar to prosecution for anybody suspected of a criminal offense within the territory of the Court. There is no exemption and no difference in between nationals or authorities of a State Event and those who are not. The exemption is general in personality and was ratified as such by 125 State Parties. Article 27 of the Rome Law even more offers that neither functional nor personal immunity can stop prosecution before the ICC. Regarding State Events are concerned, their signing up with the Rome Statute makes up a specific abandonment of any type of case of resistance in respect of those based on charges or warrants before the Court (including their very own authorities).
However the problem has actually come to be especially intense when countries, like Sudan, Russia, and Israel, have actually not authorized the Law. In multiple decisions, though its reasoning was not always entirely consistent, the ICC has actually held that Bashir birthed no resistance from prosecution prior to the ICC. This made it clear that the inapplicability of immunities in regard of ICC procedures applied equally and without difference to nationals and authorities of non-state celebrations, as long as the Court had territory over their conduct. The ICC Appeals Chamber, in the Jordan matter, passed on its judgment on the issue of resistance in 2019 The Appeals Chamber held that, as an issue of customary worldwide legislation, heads of state do not appreciate immunity vis-à-vis a global court ( §113 The Appeals Chamber likewise held that post 27 (2 means that heads of state of States Parties do not have immunity from apprehension and surrender by States Events to the Rome Law ( § 120 -122
That causes the second issue: double requirements
Lord Verdirame KC and Richard Ekins KC (Hon) in their recent contribution to the argument have actually intensely looked for to safeguard resistances for Netanyahu, regardless of the ICC’s judgments on the contrary, consisting of since as they state:” The United States, our closest ally, has always challenged the position that its officials would certainly have no immunity before the ICC In doing so, they have criticised the ICC’s decisions, and they contend least acknowledged that their placement increases issues concerning double-standards, claiming that [w] e do appreciate the user-friendly unwillingness to accept the sight that the UK should state (as other states have done prior to) that in this situation it can not perform an apprehension warrant by a worldwide court ” And they better note the issues around” Western double criteria
They take place to claim that must not” overplay the disparity in between the positions taken by Western and other states events on apprehension warrants versus authorities of different states In so doing they do not take account of the considerable scholarship which underlines why double-standards bedevil the authenticity of global regulation, and the rule of law. Take the work of Teacher John Dugard, that has kept in mind the boosting usage by American leaders and authorities of the term “rules-based global order”, as opposed to global regulation. Dugard has actually discussed that the rules-based global order may be seen as the United States’ option to international regulation, an order that encapsulates global regulation as interpreted by the USA to accord with its national passions,” a chimera, indicating whatever the United States and its fans desire it to indicate at any kind of provided time International law is hence provided malleable:” available to political control and double standards ” Teacher Dugard’s objections have a ready instance in relation to Israel’s exceptionalism in the risk-free breast of American protectionism. As he clarifies:
The amorphous ‘rules’ of the RBO … make it simpler for a state to supply unique treatment to one more state and to pardon its offenses of international regulation. The USA is able to warrant its rejection to hold Israel responsible for its infractions of international legislation by arguing that global legislation as interpreted by the USA– the RBO– allows assaults on Gaza as self-defence against terrorism, [allows] the murder of militants/terrorists by drones, [allows] the application of discrimination, the annexation of region, and the extension of an occupation which is extensively viewed as unlawful
In such a world of double-standards, the peremptory becomes liberal, and international legislation a video game where the national rate of interests of the powerful trump the suitables of equivalent respect for universal– erga omnes — worths.
The concern around such double-standards is not only expressed by worldwide legal representatives, it is currently additionally recognized by UK authorities. Lord Hermer, the current Attorney General in the UK, in his Bingham Lecture on 14 October 2024 spoke absolutely around” global legislation as” the ‘Guideline of Law’ writ huge , and
[T] hat States should comply with their worldwide responsibilities, just as they should comply with residential regulation.” Hermer discussed that” [i] nternational legislation is not just some kind of optional add-on, with which States can choose or choose whether to comply.” And talking straight to the problems around inconsistency and double-standards, Lord Hermer noted that” [i] n several components of the world, especially in the Global South, the worldwide rules-based order and human rights are commonly seen as imperialist constructs, selectively conjured up by western governments when it suits their rate of interests. It is incumbent upon us to initially, listen, to those who feel unheard. And second of all, to show … that those actions have to correspond, we have to show that we will certainly hold ourselves to the greatest criteria.
Third: obtaining state practice right.
So where the worldwide regulation of law might be appreciated, is not only by honouring ICC apprehension warrants, even when against one’s allies. It is also by taking into consideration the significance of shutting impunity gaps where possible, and trying to comprehend and value State practice correctly. Rebecca Ingber– who supervises of the Just Security mapping site I stated earlier — puts it well. She describes that in action to the ICC’s arrest warrants for Netanyahu and Gallant:
States have actually currently provided a variety of reactions to the ICC’s decision, which can shed light on their sights concerning these and other lawful disputes as well as on the Court’s legitimacy and standing on the planet. Some include political support or political pushback, and some include statements concerning their very own intent to comply with the apprehension warrants. The latter may pertain to continuous consideration of popular international legislation governing immunity.
Below, it is noteworthy that Lord Verdirame and Mr Ekins in their essay in support of Netanyahu’s resistance regardless of the ICC arrest warrants, state the following:
As noted, a number of State parties, including South Africa, the Democratic Republic of Congo, Jordan, Chad, Nigeria, and Mongolia, have differed with the ICC and refused to execute apprehension warrants in regard of people whom they considered to be entitled to resistance under international law
Yet that is not right, regarding South Africa goes.
First, the setting under South African regulation is clear from its highest possible courts. In Priest of Justice v SALC , the High Court of Allure noted that whether the accused is or was a President does not constitute a defence for a criminal activity before a South African court. As necessary, whatever missteps by South African authorities in their handling of Bashir’s browse through, the South African courts have actually discussed the right legal position that prevails in South Africa, which is the position that counts for State practice– and is the position the South African federal government has since accepted. The High Court of Appeal stated this, which should not be forgotten:
[103] I wrap up therefore that when South Africa chose to apply its commitments under the Rome Statute by passing the Application Act it did so on the basis that all types of immunity, consisting of president resistance, would not constitute a bar to the prosecution of worldwide criminal activities in this country or to South Africa cooperating with the ICC by way of the apprehension and surrender of persons charged with such criminal offenses before the ICC, where an apprehension warrant had been provided and an ask for collaboration made. I accept, in the light of the earlier conversation of head of state resistance, that in doing so South Africa was taking an action that lots of other countries have actually not yet taken. If that places this nation in the vanguard of attempts to stop global crimes and, when they occur, trigger the wrongdoers to be prosecuted, that appears to me an issue for nationwide satisfaction instead of concern. It is wholly consistent with our commitment to civils rights both at a nationwide and a worldwide degree. And it does not undermine normal global regulation, which as a nation we are entitled to depart from by statute as stated in s 232 of the Constitution. What is good is that it is a separation in a dynamic direction
Second, regarding Putin himself, the setting is again clear because of growths that are important to register in any kind of account of South Africa’s state method.
The Putin saga in South Africa remains in reality a salutary instance of just how to make sure regard for worldwide regulation, despite the unpreventable diplomacy conflicts that develop for countries who are asked to apprehend foreign leaders. On 17 March 2023, the ICC announced that it had issued an arrest warrant for Head of state Putin. This, unsurprisingly, occasioned globally rate of interest and interest. One emphasis of this was Head of state Putin’s invitation, along with various other Presidents, to attend the August 2023 BRICS Top held in South Africa– with South Africa being an ICC Rome Statute State Party. Would Putin go to the Summit, or would he select to remain home in Moscow? If he did attend, would South Africa apprehend him? If South Africa fell short to detain him, would certainly it breach its global and residential lawful obligations?
These questions came to a head in May 2023 The Autonomous Alliance (DA)– at the time the largest opposition event in South Africa– introduced an urgent application in the Pretoria High Court, in which the DA looked for declaratory and interdictory alleviation: asking the High Court to verify South Africa’s commitment to jail President Putin, and to make certain that the required actions were taken to tame and execute the ICC arrest warrant. The severity of the matter was shown in the number of global and residential NGOs that joined the lawsuits as amici curiae , broadly supporting the DA’s alleviation (including Amnesty International, Civil Rights Watch, the International Compensation of Jurists and the Southern African Litigation Centre). The matter was eventually wrapped up by way of an agreed Court Order in between the DA and the government, on the day of the hearing.
While the Putin case did not specifically reveal what issues were in truth increased by the South African government in its assessments with the ICC, what was revealed is the outcome of that involvement. In the Order made by arrangement before the Pretoria High Court, it was openly recorded that:
The International Offender Court has actually ended the post 97 consultations, and verified that the Republic of South Africa, and all various other state parties , are bound to arrest Head of state Putin in regards to the ICC’s arrest warrant and requests for participation (my emphasis).
The terms of the Court Order explains that the Write-up 97 involvements had actually been finalised with a decision by the ICC verifying that South Africa and all states celebrations were required to arrest President Putin according to the ICC arrest warrant and its request for collaboration.
And the result, as a matter of State practice, was special. President Ramaphosa introduced that Head of state Putin would certainly no more be participating in the BRICS top face to face (the only one of 5 BRICS Heads of State not to do so). It is the initial arrest warrant provided by a worldwide criminal tribunal for a sitting Head of State of a long-term safety council member. While South Africa was after that– like the UK and other States currently– captured up in the delicate foreign relationships concerns of having to arrest Heads of State like Putin or Netanyahu, the South African government made the vital statement that it took the needed actions to train the ICC apprehension warrant, to make sure that ought to Putin ever go into South Africa, he would certainly be jailed. In this regard, the Court Order in the Putin case tape-recorded the following:
[The Director-General: Department of Justice and Constitutional Development] on 29 June 2023, authorized a letter forwarding the ICC’s ask for collaboration to the National Supervisor for Public Prosecutions (NDPP) to request an arrest warrant for President Putin in terms of section 9 (1 of the Application of the Rome Law of the International Wrongdoer Court Act 27 of 2002, which was sent out to the NDPP by his office on 17 July 2023
It stays to be seen how the UK and other European authorities will certainly release their responsibilities were Prime Minister Netanyahu to visit the UK or Europe instead of fly over them or send an emissary like President Herzog. South Africa’s instance shows that a State Party (like the UK, or France, or Switzerland) may be requested by the ICC to issue a request for participation to their nationwide prosecuting or police authorities for a domestic apprehension warrant to be issued. In South Africa’s instance, 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 verified that it had actually in fact done so, despite its well-publicised initiatives to play a “non-aligned” duty pertaining to the Ukraine/Russian battle. That is State exercise worth taking seriously, and mirroring correctly.
