Case Explained: Symposium on Prosecuting Heads of State for International Crimes: The Issue of Personal Immunity Before the ICC, Prosecution of African Leaders, and Questions Around ‘Double Standards’ – Legal Perspective

[Luke Eda is a Senior Lecturer in Law at Bristol Law School, College of Business and Law, University of the West of England (UWE), Bristol, UK. He specialises in public international law and is a member of the American Society of International Law (ASIL)]

Introduction

In June 2024, African States celebrated the tenth anniversary of the 2014 Malabo Protocol in Addis Ababa. The event revived African-led advocacy for the Protocol’s ratification and the creation of an African Criminal Court, which could potentially keep the International Criminal Court (ICC) out of Africa. The African Union (AU) continues to view the ICC as a neo-colonial court in the hands of Western powers to intimidate African leaders, which the continent’s leadership must resist, adopting instead African solutions to African problems. In 2025, three African countries in the Sahel—Burkina Faso, Mali and Niger—announced their withdrawal from the ICC, labelling the court an “instrument of neo-colonialist repression”. 

Similar anti-ICC sentiments have recently grown globally following the Court’s decision to issue arrest warrants against Russian President Putin and Israeli Prime Minister Netanyahu. For example, China, aiming to create a counterweight to Western dominance in global institutions, accused the ICC of “double standards” by neglecting the Heads of State immunity that protects Putin from prosecution. In the same vein, U.S. President Donald Trump imposed sanctions on the Court and its judges and officials for targeting America and its close ally, Israel. 

Against this backdrop, I address three critical issues facing the ICC today: the collapse of its early positive relationship with Africa and the AU’s dispute with the Court over the prosecution of African leaders, the question of personal immunity of Heads of State before the Court, and the issue of “double standards” in the administration of international criminal justice.

Africa’s Early Positive Relationship with and Contributions to the ICC

Very few, if any, will contest that the ICC received its greatest support from Africa both before its creation and during the Court’s formative years. In February 1998, representatives of twenty-five African States adopted the “Dakar Declaration”, calling for the establishment of an independent ICC to prosecute perpetrators of grave crimes around the world, especially in Africa. Many African countries, including Lesotho, Malawi, Senegal, South Africa and Tanzania, later played important roles in the process leading to the drafting of the Rome Statute, in which forty-seven African countries participated,  with most voting for its adoption. Some of the earliest countries to enact national implementing legislation to domesticate the Statute were African: South Africa, Kenya, Uganda and Burkina Faso. In 2000, the AU’s predecessor, the Organization of African Unity (OAU), pledged to cooperate with the ICC to prosecute perpetrators of international crimes in Africa. In addition, many civil society groups in Africa also united to build support for the ICC. 

Once the ICC finally began operating in 2002, it received enormous support and cooperation from Africa. Even if the AU’s relationship with the Court was already strained by then, a senior leader of the Lord’s Resistance Army, Dominic Ongwen—wanted since 2005— was surrendered to the ICC in January 2015 by the joint efforts of the AU and the U.S., shortly followed by the hand-over of Al Faqi Al Mahdi, charged with the war crime of directing attacks against religious and historical monuments in Timbuktu, Mali. These are just a few examples among many of the support the ICC received from Africa since its inception, and of the 125 countries that are parties to the Statute, 33 are African. Given this strong support for the ICC in Africa, one wonders how and why the AU’s relationship with the Court suddenly broke down, almost irretrievably.

What Changed? The AU-ICC Tensions Over Prosecution of African Leaders

The events that prefigured the AU-ICC dispute over Heads of State immunity began in 2000 when Belgium issued an arrest warrant for Abdoulaye Yerodia Ndombasi, then the Democratic Republic of the Congo’s (DRC) sitting Minister of Foreign Affairs, causing a major diplomatic rift between the DRC and Belgium. The AU considered Belgium’s move as nothing but an abuse of universal jurisdiction by European States and a blatant move to intimidate African leaders. Then, in 2008, the then Chief of Protocol to Rwanda’s President Paul Kagame, Rose Kabuye, was arrested in Germany pursuant to a French arrest warrant alleging complicity in the 1994 killing of then Rwandan President, Juvenal Habyarimana. 

While these two incidents foreshadowed the AU’s dispute with the ICC, the watershed moment came in March 2009, when the ICC issued an arrest warrant for the former Sudanese President Omar Al Bashir for alleged involvement in war crimes and crimes against humanity perpetrated in Sudan’s Darfur region. This was later followed by the charging of former Kenyan President Uhuru Kenyatta with crimes against humanity, allegedly committed during the 2007 post-election violence in Kenya. In response to these incidents, in 2017, the AU adopted a resolution urging all African States to withdraw collectively from the ICC and cease cooperating in the execution of arrest warrants against accused persons from Africa. The AU accuses the Court of disregarding sitting African Heads of State’s personal immunity, a thorny issue that now lies at the heart of the current AU-ICC dispute.

The ICC and the Issue of Personal Immunity for Sitting Heads of State 

No doubt, the question of personal immunity is the most fundamental issue on which the AU and the ICC have consistently disagreed. That issue cuts at the heart of the relationship between Articles 27(2) of the Rome Statute, which provides that Heads of State immunity shall not bar the Court’s jurisdiction, and 98(1), according immunity to senior officials of non-State Parties. Iverson argues that:

“Article 98 was crafted not to interfere with States qua States and with the efficient performance of the functions of diplomatic missions, while retaining the capacity to hold heads of state to account”.

However, in the Arrest Warrant Case, the ICJ held that absolute immunity from criminal prosecution in foreign domestic courts applies to sitting Heads of State (and certain senior State officials, such as foreign ministers) under customary international law, although such immunity may not prevent international courts, including the ICC, from prosecuting State officials for international crimes. Some, however, argue that, unlike functional immunities, which do not necessarily prevent criminal prosecution in national courts, personal immunity continues to apply to sitting Heads of State “even where prosecution is sought for international crimes”. 

Two fundamental questions arise from the ICJ decision: first, whether the Heads of State immunity under customary international law can be waived by a State becoming a signatory to a treaty, in this case the Rome Statute as per Article 27(2), and second, what the implications would be of a case referral to the ICC by the UN Security Council (UNSC). The latter question was put to the test when the UNSC referred the situation in Darfur and the case against former President al-Bashir to the ICC with Resolution 1593 (2005). The AU argued that a combined reading of Articles 27(2) and 98(1) means the ICC cannot validly terminate the immunity of Heads of State who are not parties to the Rome Statute, like Sudan. In its 2011 decision on the Malawi and Chad cases, the ICC held that under customary international law, there is no exception to Heads of State immunity regarding the jurisdiction of international courts. 

In its subsequent 2014 decision on the DRC, the Court held that Resolution 1593  waived the Head of State immunity enjoyed by al-Bashir. Similarly, in its 2017 decision on South Africa and the 2019 Appeals Chamber decision on Jordan, the Court determined that the Resolution applied to all of Sudan, putting the country in the same legal position as a State party to the Rome Statute. As a result, Article 98(1) would not apply to Sudan. The effect of the Court’s decision in these cases is that the Resolution 1593 removed al-Bashir’s immunity, and therefore, the States he visited failed to comply with their cooperation obligations to arrest him under Article 87(7). The Court’s conflicting legal reasoning in these decisions is challenged not just by the AU, which disagreed with the ICC on immunity, but also by many States’ positions on immunity. China, Brazil, the United Arab Emirates and even the Netherlands, where the Court sits, have disagreed with the judicial overreach arising from its muddled decisions. More recently, Mongolia, Kazakhstan and Kyrgyzstan refused to arrest President Putin on the grounds that he enjoyed personal immunity under international law.

Following the al-Basir saga, the AU adopted the 2014 Malabo Protocol, whose Protocol on Amendments grants immunity from criminal prosecution to:

“serving AU Head of State or Government, or anybody acting or entitled to act in such capacity, or other senior state officials based on their functions, during their tenure of office”.

(Article 46A bis)

This provision demonstrates just how important the issue of immunity is to the AU, although skeptics view it as evidence of the its political unwillingness to uphold the rule of law by holding perpetrators of international crimes to account in Africa. In a new development, in 2018, the AU decided to ask the UN General Assembly to seek an ICJ advisory opinion on immunity. It appears the ICJ has yet to formally receive the request. While we await developments on the immunity issue, either at the judicial or diplomatic level, another, closely-related issue at the heart of the AU-ICC dispute—the question of double standards—rages on.

Questions Around ‘Double Standards’

The AU’s allegations of double standards amid the ICC’s selective prosecutorial policies are as contentious as the issue of personal immunity. The Court is accused of deliberately targeting African leaders but failing to take similar actions against Western leaders who have committed comparable or even more serious crimes. Since the Court began its operations in 2002, it had, until its recent investigations into the situations in Ukraine, Palestine, Afghanistan, Bangladesh/Myanmar, the Philippines and Venezuela, almost exclusively focused its prosecutorial policies on Africa, raising suspicions of using Africa as a testing ground. As of today, out of the 33 cases launched since the Court’s inception, all but one (Duterte) involved an African country. All individuals who have been convicted to date by the Court are from African countries (Uganda, Mali and the DRC). Addressing the double-standards allegations, lead counsel for Charles Taylor (Ex-President of Liberia), Courtenay Griffiths QC, stated during the SCSL trial:

“There is an unspoken truth about international criminal law as currently practiced. It is that certain individuals, from certain countries of origin will never find themselves indicted before an international criminal tribunal…”

(Courtenay Griffiths, 2012)

Former British Foreign Secretary Robin Cook, answering questions on whether the ICC might one day indict Western leaders for their decisions to go to war in Iraq, said: “If I may say so, this is not a court set up to bring to book Prime Ministers of the United Kingdom or Presidents of the United States” (see here, here and here). This view, expressed by a senior State official, shows that the problem of double standards in the international criminal justice system is deeply rooted in global geopolitics. Recent developments involving non-African Heads of State seem to reinforce this position. While the ICC’s arrest warrant for Putin was mostly welcomed by Western States, including the U.S. and the EU, the arrest warrant for Netanyahu faced strong criticism from Western nations, most notably France and Hungary. These claims about double standards in the administration of international criminal justice will continue to challenge the ICC’s stability, authority and legitimacy.

Conclusion

There is no doubt that the current ICC-administered international criminal justice project has become entangled in the complex web of global geopolitics. This is so whether we view it from the perspective of the AU-ICC dispute over Heads of State immunity, or from the standpoint of double standards allegations within the international criminal justice system. Powerful States will continue to wield their political influence on the world stage to shape the ICC’s fate in both current and future cases. In the AU context, one direct consequence of the unresolved question of personal immunity and double standards allegations is the growing crisis of confidence in the ICC’s justice work. These are not good times for the ICC.