Case Explained: Symposium on Prosecuting “Heads of State” for International Crimes: Introduction – Legal Perspective

[Mariana Apaza is a law student and Teaching Assistant at the University of San Martín de Porres. She is the former co-lead of the Association of Young International Criminal Lawyers’ Programmes Committee.

Matilde Gamba is the current co-lead of the Association of Young International Criminal Lawyers’ Programmes Committee. As a former trainee at the European Parliament, she worked on EU policymaking and crisis management within the current geopolitical and security context.

Maria Mazurek is a Lecturer in International Criminal Law at the University of Amsterdam and a member of its Amsterdam Center for Criminal Justice. She is the current co-lead of the Association of Young International Criminal Lawyers’ Programmes Committee.

Andrea Maria Pelliconi is the former co-lead of the Association of Young International Criminal Lawyers’ Programmes Committee. She has a PhD from City, University of London, and has taught at LSE, Nottingham, and UWE.

Pavel Tikhonov is a lawyer with experience in civil and administrative law. He holds an LLM in Legal Studies from the University of Bologna. He is a former member of the Association of Young International Criminal Lawyers’ Programmes Committee.]

The legitimacy of international criminal justice has often been questioned against its inability to confront those at the highest levels of power, and to do so fairly, impartially and unselectively. The idea that sitting or former Heads of State or Government could face accountability for their involvement in the commission or planning of international crimes recently gathered pace, with the International Criminal Court (ICC) issuing arrest warrants against Vladimir Putin and Benjamin Netanyahu and arresting former Philippine President Rodrigo Duterte. Yet the challenges in enforcing outstanding arrest warrants, the lack of cooperation from States, and strong political resistance against the Court suggest further erosion of the system’s authority rather than strengthening its credibility.

To make sense of these debates, the Association of Young International Criminal Lawyers (AYICL) invited a group of scholars and practitioners to contribute to a blog symposium on Prosecuting Heads of State for International Crimes. Over the coming week, this series will bring together eleven contributions reflecting on a question that has seemingly been gaining momentum in international criminal justice: whether – and how – those at the very top of political hierarchies can be held accountable for atrocities. Perspectives vary from doctrinal analyses of immunity to critical takes on criminality and punishment, double standards within international criminal justice, and conflict-specific perspectives. Nevertheless, several cross-cutting issues emerge across the symposium, which we highlight in this introduction.

A Momentum for Head of State Prosecution? 

Admittedly, the idea that those who sit at the very top might face criminal prosecution is hardly new – and neither are the misgivings surrounding it. International tribunals have confronted them across geopolitical contexts, from the prosecution of Slobodan Milošević before the International Criminal Tribunal for the former Yugoslavia (ICTY) to the conviction of Liberia’s former president Charles Taylor. Yet in many of these cases, accountability came only after leaders had already become politically expendable. This is the case, for instance, of the arrest of former Filipino President Duterte, discussed by Ross Tugade. 

Even today, it may be years before figures such as Putin or Netanyahu ever appear in a courtroom, if they do so at all. Should that never happen, critics – perhaps with good reasons – will be quick to see it as further confirmation of a familiar charge: that international criminal justice struggles to punish the powerful. As Iva Vukušić explains in her contribution, arresting sitting Heads of State and building cases against them is both politically explosive and practically difficult. Senior leaders are often far removed from crimes committed on the ground, making necessary linkage evidence particularly hard to establish. The collapse of the ICC’s high-profile case against Kenyan President Uhuru Kenyatta – withdrawn in 2014 due to insufficient evidence and the Kenyan government’s lack of cooperation in obtaining it – is a telling example.

And yet, what seems different today is the sense that the issue is gaining momentum. In recent years, arrest warrants have increasingly targeted sitting Heads of State while conflicts are still ongoing. Quite apart from whether these warrants ultimately lead to arrests, their very issuance already carries consequences: constraining travel, serving as instruments of diplomatic pressure, and provoking rather strong political reactions, vividly illustrated by U.S. sanctions imposed on the ICC explicitly for authorizing the issuance of an arrest warrant against Netanyahu. Critical perspectives have also questioned the reliance on individual prosecution of those at the top as the primary framework for addressing mass atrocities. Natasa Mavronicola and Mattia Pinto argue in this symposium that the focus on individual criminal liability carries significant structural, normative and moral limitations obscuring the wider systemic dimension of responsibility underpinning international crimes. For what it is worth, efforts to prosecute Heads of State are becoming increasingly prominent within the ICC, whose survival and legitimacy may – for better or worse – depend on its “success” in bringing them to justice.

Who is the “Head of State”? Recognition, Legitimacy and Immunity 

A foundational question is who counts as a “Head of State” (or Government). The short answer is that each State decides for itself, typically through its constitution, who occupies the office and what powers it entails. The role may be held by a hereditary monarch, an elected president, or even a collective body, and may involve either real governing power or largely ceremonial duties. What matters is that a leader stands as the State’s highest representative, both at home and abroad. The office-holder is therefore not merely another government official, but the figure who embodies the State and its sovereignty.

Yet in practice, who is recognized as Head of State also matters, not least because immunity depends on that recognition.. Personal immunity for Heads of State, Heads of Government and Ministers of Foreign Affairs (the “Troika”) as a principle of customary international law is broadly recognized by States. Personal immunity does not apply to officials who have left office; incumbent state officials, however, remain immune from the jurisdiction of foreign domestic courts while in office. However, as Diane Desierto discusses in her contribution, this does not apply to (certain) international criminal tribunals (e.g., Article 27 of the Rome Statute). 

Yet, the question of immunity remains a controversial issue in modern international criminal law, as the blog from Luke Eda illustrates. For instance, some States have resisted the idea that the exception to immunity would apply horizontally to non-State parties of the Rome Statute. In 2024, after Mongolia refused to arrest Vladimir Putin, the ICC Pre-Trial Chamber II concluded that the country failed to comply with its statutory obligations. This was hardly a surprise, given the Al-Bashir example and the various precedents of sitting Heads of State being prosecuted before other international tribunals, as shown by Vukušić. But even if, as Desierto argues, deficient cooperation by States Parties does not waive statutory obligations, this controversy resurfaced again after the arrest warrant against Netanyahu, discussed by Victor Kattan, with European States becoming suddenly ambiguous about their commitment to arrest the Israeli Prime Minister should he step foot on their territory. 

Because arrest undoubtedly carries a strong political and diplomatic dimension, it is not merely a question of legal interpretation, but chiefly one of political will. And this becomes even more relevant when the entity in question is not universally recognized as a sovereign and independent State possessing international legal personality – or when a specific individual is not universally recognized as the legitimate leader. International law distinguishes between recognition of a State and recognition of the government representing that State. As per the prevalent declaratory theory of recognition, States exist as a matter of fact even if some other States don’t recognize them; but, in practice, the other State would not grant immunity to someone representing an entity they don’t recognize as a sovereign State. Regarding government recognition, well-established States continue to exist even if other States refuse to recognize the legitimacy of their government. Members of a de facto government exercising effective control may still be treated as representatives of the State for certain legal purposes.

By way of illustration, Tanvir Hashem Munim explains that the ICJ allowed members of Myanmar’s military junta to represent the State in The Gambia v Myanmar even if they lack widespread recognition as a legitimate government. In 2022, in admitting the Taliban as Afghanistan’s de facto authorities, the ICC Pre-Trial Chamber II concluded that “changes of governments have no impact on the continuity of States”. Leaders may still benefit from personal immunities before foreign domestic courts, even if the government is widely considered illegitimate. As Pablo Gavira-Díaz argues, the Taliban may be considered as immune in domestic jurisdictions even if they are largely regarded as illegitimate representatives. A notable example is the July 2025 decision of France’s Court of Cassation recognizing the personal immunity of (then sitting) President of Syria Bashar al-Assad, despite considering his government illegitimate.

This view is open to criticism. Given that who is Head of State and Government is a matter of domestic law, some argue that de facto governments should not be granted immunity when they seize power in violation of their countries’ legitimate process. This is Andreina Nicoletti’s position in discussing the proceedings against Venezuela’s Nicolás Maduro. Even in practical terms, the principle of effectiveness can hardly resolve the most intricate realities on the ground. When more than one government is in place, States may end up recognizing one or the other, depending on their political preference – as it happened briefly with Juan Guaidó. And effectiveness doesn’t seem to be decisive in Libya, where the widely recognized government – whose legitimacy is questionable – has no control over nearly two-thirds of the country, controlled instead by a government that no State formally recognizes. The politics of recognition inevitably lead to fragmented approaches: even States opposing the exception to immunity would arrest someone they don’t view as a Head of State, relinquishing them to the ICC or even exercising universal jurisdiction.  

Gendered Patterns in the Prosecution of Heads of State

In this symposium, only Quazi Omar Foysal addresses the prosecution of a woman. Bangladesh’s former Prime Minister Sheikh Hasina provides an important example of a woman leader being held responsible for international crimes. Yet, this occurred before a domestic tribunal established within Bangladeshi jurisdiction. Before international courts and tribunals, prosecutions have overwhelmingly involved men. 

To date, women charged by international courts were not Heads of State. Examples include Pauline Nyiramasuhuko, Rwanda’s former Minister for Family and Women’s Development, and Valérie Bemeriki, a journalist and radio announcer, both convicted by the International Criminal Tribunal for Rwanda. Ieng Thirith, Minister of Social Affairs under the Khmer Rouge regime, was charged before the hybrid Extraordinary Chambers in the Courts of Cambodia, but was ultimately found unfit to stand trial and the proceedings were suspended. In 2012, the ICC issued an arrest warrant against former First Lady of Côte d’Ivoire Simone Gbagbo on charges of crimes against humanity allegedly committed during the 2010-2011 post-election violence. Ms Gbagbo was simultaneously prosecuted and then acquitted by Cote d’Ivoire’s High Court for the same crimes, and the ICC vacated the warrant’s effects in 2021. Her husband, former President Laurent Gbagbo, was also acquitted by the ICC for lack of evidence. In 2023, the ICC also issued an arrest warrant against Maria Alekseyevna Lvova-Belova, Russia’s Presidential Commissioner for Children’s Rights, for the unlawful deportation of Ukrainian children. Although she contributed to “a policy conceived and executed at the highest level of the Russian Federation’s leadership”, she is not a senior executive official, and the position she holds is a specialized office that does not carry ministerial rank.

The most prominent and highest-ranking woman leader ever prosecuted by an international criminal tribunal remains Biljana Plavšić, former President of Republika Srpska. She pleaded guilty to persecution as a crime against humanity and was sentenced to eleven years’ imprisonment by the ICTY for her role in the ethnic cleansing campaigns during the Bosnian War. While she did not design the policy of persecution against Bosnian Muslims and Bosniak and Croat civilians, she publicly endorsed it while serving in the Presidency, the highest civilian authority. Her high-ranking position was treated as an aggravating circumstance. Yet, Plavšić was the leader of a political entity within Bosnia and Herzegovina rather than the head of an independent sovereign State.

To date, no woman national leader has been prosecuted by an international criminal tribunal. Some argue that women commit international crimes significantly less frequently than men because of a combination of higher “moral” standards and gendered expectations that “feminine” inclination should be “more peace oriented”; however, evidence shows that women, too, commit or contribute to atrocities. In our opinion, at least for Head of State positions, the scarcity of women-perpetrators reflects a simple political reality: women rarely hold the highest executive offices where these questions usually arise. As of 1 January 2026, women were Heads of State or Government in only one in seven countries. These positions remain largely dominated by men. 

In Absentia Trials

A final issue that has emerged across several contributions to this symposium is the role of in absentia trials as a response to the persistent inability of international criminal justice mechanisms to apprehend powerful political leaders. This is another theme which is seemingly gaining momentum, especially after the ICC’s confirmation of charges against Joseph Kony, still at large – even if the trial cannot proceed further in the suspect’s absence (Articles 63.1 and 67.1(d) of the Rome Statute). 

The persistent failure – and, often, reluctance – to arrest suspects and particularly sitting or former Heads of State, despite outstanding warrants and well-documented atrocities, has pushed some jurisdictions and tribunals to seriously contemplate in absentia proceedings. As Noëlle Quénivet discusses in her post, the Statute of the Special Tribunal for the Crime of Aggression against Ukraine allows prosecution in absentia, which means that it’d be possible to indict a sitting member of the Russian Troika. Kattan, Gavira-Díaz and Munim entertain the idea of proceedings without the accused given the unlikelihood of the prospect of a prompt arrest of the current leaders of Israel, Afghanistan, and Myanmar. Foysal more extensively considers the advantages and limitations of criminal proceedings without the defendant’s presence in discussing the International Crimes Tribunal-Bangladesh’s 2025 in absentia conviction of Hasina. 

The authors grapple with whether trials in absentia represent a meaningful avenue for justice or a troubling symptom of systemic failure and structural limitations within international criminal justice. Does a trial in absentia truly deliver justice to victims and meaningfully advance accountability, or is the reflection of a self-actualizing framework obsessed with penalty, increasingly defined by its inability to secure custody of the accused? In a system already struggling with limited State cooperation and significant opposition, the turn toward in absentia proceedings may represent a pragmatic response to persistent enforcement gaps, but it also certainly invites further criticism over legitimacy and fairness deficiencies. Whether one agrees or not with their value, it is clear to us that the apparent increasing reliance on in absentia trials is a symptom of the deep structural crisis of international criminal justice.

Conclusion 

The prosecution of Heads of State or Government for international crimes is becoming a visible feature of contemporary international criminal justice. This momentum is both widely welcomed and increasingly met with skepticism and political resistance. Even where some normative clarity exists, issues remain subject to the politics of recognition; decisions on whether to cooperate with international institutions, and even whom to recognize as a leader entitled to personal immunity, remain fundamentally reliant on political discretion and opportunity. The growing appetite for action – any action – that might resemble a form of accountability, including in absentia trials, is accompanied by increasing criticism of the criminal justice paradigm’s legitimacy. Whether these developments reflect something more than a fleeting moment of ambition – or instead mark the irreversible decline of international criminal justice institutions – is perhaps the most important question this symposium seeks to address.

Note from Author: The Association of Young International Criminal Lawyers (AYICL) is an international network aspiring to bring together lawyers and jurists passionate about criminal and international law. It provides a platform for open discourse about the international legal landscape, focussing in particular on International Criminal Law and Procedure, International Humanitarian Law, International Human Rights Law and more generally Public International Law and Criminal Law. This symposium is based in part on a webinar series under the same title organized by AYICL between September and December 2026. We are grateful to the Association’s members and founders for their support.