3.6 Head-of-state immunity makes enforcement unlawful
Claim. Enforcement of the warrants is effectively impossible because arresting Netanyahu would violate customary international law on official and diplomatic immunity — one of the most basic mechanisms of interstate relations. Israel is not an ICC state party and has not waived those protections, as state parties do.
Assessment. This is the interview’s most substantive legal argument and it is genuinely contested rather than simply right or wrong.
- For her position: Article 98(1) of the Rome Statute bars the court from requesting surrender that would require a state to act inconsistently with its obligations regarding the immunity of a third state. The ICJ’s Arrest Warrant judgment (DRC v Belgium, 2002) affirmed personal immunity of serving senior officials before foreign national courts.
- Against it: Article 27 removes official capacity as a bar. The ICC Appeals Chamber held in Jordan Referral re Al-Bashir (2019) that head-of-state immunity does not apply before international courts, and does not bar states parties from executing an ICC warrant even against a non-party’s head of state. That is binding within the ICC system, whatever its critics say of the reasoning.
Her presentation gives no hint that Al-Bashir exists. That is the single largest omission in the interview.
Link to original
From the notebook