Modeling Immunity in International and Domestic Courts

By: Haley S. Anderson

End of Immunity: Holding World Leaders Accountable for Aggression, Genocide, War Crimes, and Crimes Against Humanity. By Chile Eboe-Osuji. Essex, Connecticut: Prometheus Books. 2024. $34.95

      Immunity—the right of a State and its officials “to refuse to appear as a defendant in court”[1]—may sound like a niche and technical matter. On the contrary, however, it’s at the center of many of the world’s most pressing political conflicts today. It directly concerns what consequences State leaders will face for their abuses, and we have some recent examples of immunity stepping aside.[2] But immunity often stands its ground, protecting leaders from judicial scrutiny. The U.S. Supreme Court held last summer that even former U.S. presidents are entitled to immunity from domestic prosecution for their official acts.[3] And at least four justices may be poised, on immunity grounds, to block lawsuits against the Trump administration by organizations whose congressionally allocated funding that administration has stripped.[4] Meanwhile, member States of the International Criminal Court (ICC) have repeatedly refused to arrest and surrender visiting Heads of State with outstanding warrants from the Court. Vladimir Putin[5] and Bibi Netanyahu[6] have recently traveled freely to Mongolia and Hungary, respectively, despite both being ICC members with obligations to cooperate with the Court.[7] All this, and more, in just a year.

      Into what can sometimes appear a chasm of impunity, Judge Chile Eboe-Osuji has published a timely new book and call to action, The End of Immunity: Holding World Leaders Accountable for Aggression, Genocide, War Crimes, and Crimes Against Humanity.[8] With it, the former ICC President defends a provocative claim: There is no immunity—for anyone—when they face charges for international crimes at international courts. Even more pointedly, customary international law does not recognize and perhaps never recognized immunity for heads of State in this context.[9]

      This engaging work, brimming with the author’s frustration at the ongoing obstacles to accountability, could not tackle a more urgent topic. The sentiments behind End of Immunity will no doubt touch many readers, and the scope of the book’s ambition will impress. At some points, the book’s arguments may sound familiar, repeating reasoning and evidence that Judge Eboe-Osuji has offered before.[10] At others, they may fall short of the book’s own aims,[11] or may not satisfy readers hoping for a different style of analysis.[12] But End of Immunity does readers a great service in elaborating how a central figure in international criminal law views these issues, and along the way it offers an excellent illustration of what Ann Woolhandler describes as the “legality model of immunity,”[13] making the book a valuable resource to those interested in international and domestic law alike.

I. A Culmination

      Judge Eboe-Osuji has been advancing the central thesis of this book for some time, and End of Immunity serves as a culmination, and at times recapitulation, of many years’ work.[14] He has made the same basic argument about customary international law’s “anti-immunity norm”[15] in blog posts[16] and at least one academic article[17] since leaving the ICC in 2021, but he also engaged with it directly as a judge on that court. In particular, he co-authored the 2019 Appeals Chamber decision in the Al Bashir case,[18] as well the accompanying joint concurring opinion.[19]

      The issue in Al Bashir concerned whether the sitting president of a State that had not joined the ICC was entitled to immunity. The ICC’s founding treaty, the Rome Statute, provides in Article 27(2) that any immunity officials have under national or international law will not be recognized at the Court.[20] But of course a treaty’s terms, on their own, only apply to the treaty parties.[21] At the time the ICC issued its arrest warrant for Al Bashir, he was still the President of Sudan.[22] As such, he might be entitled to immunity ratione personae—i.e., blanket immunity for certain high-ranking officials while in office[23]—and ratione materiae—i.e., immunity for all officials, both during and after their time in office, concerning their “official” acts.[24] Al Bashir became notorious for remaining at liberty while traveling to various ICC member States,[25] and these States asserted he was entitled to immunity from execution of the warrant.[26]

      If, however, officials have no immunity under customary international law when facing charges for international crimes at international courts, then the path to prosecution for Al Bashir and others is straightforward. Immunity would not prevent the ICC from prosecuting any official, regardless of whether their State was party to the Rome Statute or how the case arrived at the Court. [27] The same would also be true at any other international court that might be established, and it might even have to extend to domestic processes of arrest and surrender.

      Much like End of Immunity, the 2019 Appeals Chamber decision and joint concurring opinion defended this potentially expansive approach. The full Appeals Chamber asserted that Article 27 reflects customary international law,[28] which evidently never recognized immunity “as a bar to the jurisdiction of an international court.”[29] Specifically, the Chamber found “there is neither State practice nor opinio juris that would support the existence of Head of State immunity under customary international law vis-à-vis an international court.”[30] For further elaboration of this history of state practice and opinio juris, the full chamber then referred to the four-judge joint concurring opinion that walked readers through the post–World War I negotiations to try the former German Kaiser and the resulting Treaty of Versailles Article 227 arraigning him,[31] the negotiations for and decisions of the Nuremberg tribunal,[32] subsequent events at the United Nations,[33] and decisions of conflict-specific international courts.[34]

      Close readers of the joint concurring opinion will recognize some of the events and sources now highlighted in End of Immunity. The heart of the book’s analysis unfolds between Chapters 3 and 12, starting a bit earlier by outlining nineteenth- and early twentieth-century efforts to regulate States’ conduct during war[35] and concluding again with the international criminal tribunals established in the 1990s and early 2000s.[36] Between these, End of Immunity repeats and elaborates on the joint concurring opinion’s discussion of the German Kaiser,[37] the post–World War II trials with new but limited treatment of the Tokyo tribunal,[38] and the U.N. General Assembly’s and International Law Commission’s subsequent adoption of principles from Nuremberg.[39] Throughout this central account, the book stakes a clear position in the debate over the source of international criminal law’s authority,[40] asserting that developments from the 1899 Hague Peace Conference to contemporary trials vindicate the international community’s “right to punish those who violate its cherished rules.”[41] In other words, an international jus puniendi.[42]

      The book also seeks to go beyond the joint concurring opinion in its opening and closing chapters. The prologue and first two chapters highlight the crisis for international law that Russia’s war in Ukraine poses,[43] and they especially advocate holding Putin accountable for waging an illegal war as part of a strategy to close the “gap in the framework” for the crime of aggression.[44] The closing chapters likewise connect the book’s largely twentieth-century-focused account to broader discussions. Chapter 13 traces arguments for immunity to the divine right of kings,[45] chapter 14 argues that earlier conceptions of sovereignty can no longer justify immunity,[46] chapter 15 proposes a path forward,[47] and the epilogue tackles a specific dispute about the relationship between domestic and international jurisdiction.[48]

      Within this sweeping and at times fragmented account, the book’s argument occasionally presses further than the core claim it shares with the joint concurring opinion, suggesting that State officials may not be entitled to immunity even before national courts. At one point, it takes aim at the International Court of Justice’s 2002 decision in the Case Concerning the Arrest Warrant of 11 April 2000. This decision found that a Belgian warrant issued for the Democratic Republic of Congo’s sitting Minister for Foreign Affairs “infringed [the official’s] immunity”[49] because the Court was “unable to deduce . . . that there exists under customary international law any form of exception to the rule according immunity.”[50] Rather than accepting the decisive finding of a violation here, End of Immunity presses on the Court’s indecisive “unable to deduce” reasoning and argues without much further elaboration that “there are . . . strong and numerous data that favor the proposition that customary international law recognizes no immunity for state officials when prosecuted in foreign national courts for international crimes.”[51] This would mean any State can seek to arrest the sitting officials of any other State—including their head of State—so long as the charge they allege is an international crime.[52]

II. A Model of Immunity in Action

Beyond End of Immunity’s explicit offerings, the book productively illustrates a particular understanding of what immunity is and how it interacts with the notion of responsibility. On one hand, responsibility and immunity are often treated as separate questions. It is one thing to say that an actor has an obligation to undertake or refrain from some action; it is another to say that a court may hear a case alleging the actor violated this obligation. Such a bifurcated approach to responsibility and immunity is familiar in both international and domestic law. The ICJ declared in the Arrest Warrant case, for example, that “[i]mmunity from criminal jurisdiction and individual criminal responsibility are quite separate concepts.”[53] Along similar lines, in its 2012 Jurisdictional Immunities of the State (Germany v. Italy) decision, the ICJ found both that Germany had committed in WWII “serious violations of the law of armed conflict which amounted to crimes under international law”[54] and that Germany was entitled to immunity from civil litigation in Italian courts concerning these violations.[55] On the domestic side, the U.S. Supreme Court adopted a particularly extreme form of the bifurcated approach in Trump v. United States last summer, holding not only that responsibility and immunity are separate questions but that broad immunity from criminal prosecution—even once a president has left office—is necessary for them to carry out their responsibilities while in office.[56] On the other hand, responsibility and immunity might be a single question. According to this unified view, if an actor has a particular obligation, then courts must have the power to assess whether this obligation has been violated. The unified view thus analytically erases immunity because it does no independent explanatory or procedural work.

The distinction between these views is familiar in U.S. executive immunity thanks to Ann Woolhandler’s articulation of the “discretion” and “legality” models of immunity. Under the discretion model, courts must consider whether the complained-of conduct was within the officer’s role or discretion.[57]  If so, we can still understand the officer as having certain legal obligations, but immunity applies. Under the legality model, by contrast, the “critical standard” is “whether the official’s behavior is legal.”[58] If so, the official is immune from “damages and coercive relief.”[59] But if, as Thomas Schmidt has explained, “a court finds that an official has acted unlawfully and the plaintiff has been harmed, it should grant a remedy.”[60] The discretion model is one way of managing a bifurcated relationship between responsibility and immunity; the legality model is a straightforward expression of the unified view.

With End of Immunity, the distinction is now on display for international law as well. The evidence Judge Eboe-Osuji marshals to argue that there can be no head of state immunity for international crimes before international courts represents the unified view, or Woolhandler’s legality model, in action. Take, for example, the International Law Commission’s “Formulation of the Nürnberg Principles,”[61] which the ILC undertook at the instruction of the U.N. General Assembly.[62] End of Immunity and some of Judge Eboe-Osuji’s other writings emphasize the resolution’s Principle III,[63] which states: “The fact that a person who committed an act which constitutes a crime under international law, acted as Head of State or responsible government official, does not relieve him of responsibility under international law.”[64] End of Immunity asserts that this principle “rejects head-of-state immunity.”[65] And indeed the ILC’s commentary on Principle III supports this view, asserting that having responsibility and not being entitled to immunity are “[t]he same idea.”[66]

Seeing the unified approach applied so methodically in this book is especially useful because the legality model can be hard to pin down conceptually, and it may seem like a relic of the past within the U.S. legal system. In Woolhandler’s explanation, this unified model “could be described as no immunity at all.”[67] So, as a model of immunity, it presents quite a puzzle. Moreover, Woolhandler associates the legality model most closely with the U.S. Supreme Court of the early 1800s,[68] when the country looked very different than it does today.[69] Traces of the legality model can still be found in more recent decisions. Schmidt, for example, characterizes the Court’s 1952 decision in Youngstown Sheet & Tube Co. v. Sawyer[70] as “the triumph of [the] legality [model].”[71] Largely, however, it has been eclipsed in domestic law.[72] For readers who are interested in immunity more broadly, then—and especially for those who have struggled, as I have, to grasp the legality model—End of Immunity may be instructive.

What’s more, reading End of Immunity through the lens of the legality model or unified view can offer further insight into the work. First, it might help explain why the book does not include one of the essential discussions that an international lawyer might expect. It does not really deal with the distinction between immunity ratione personae and ratione materiae.[73] But if one adopts the legality model and views responsibility and immunity as a single question, then it would seem illogical to divide up categories or types of immunity. An official—sitting or former—simply has responsibility or they do not. By contrast, if one treats responsibility and immunity as analytically distinct, then it is possible to think about different sorts of immunity that might apply in different circumstances and for different reasons.

Understanding Judge Eboe-Osuji’s position as an expression of the legality model likewise can shed light on his disagreement with interlocutors. Dapo Akande’s works, for example, appear as a target of particularly sharp criticism.[74] In End of Immunity, Judge Eboe-Osuji seems almost incredulous that anyone could argue sitting heads of State should, or do, have immunity.[75] But Akande adopts the bifurcated approach to responsibility and immunity.[76] Thus, for Akande, it is important to consider the policy rationales for immunity and the particulars of any ostensible waiver thereof, as well as the question of responsibility.[77] On one level, this is a substantive dispute about the relevance of immunity ratione personae. But on another level, it is a conceptual dispute about how to conceive of immunity in the first place, and the tension between the unified and bifurcated views.

With this in mind, it becomes even more striking that Akande agrees with part of End of Immunity’s reasoning, and that he may go even further. Although the book does not highlight it, the two scholars agree that the fact of certain actions falling within an official’s role or duties cannot shield the official from prosecution for international crimes.[78] Nor should this agreement be taken for granted; it is itself a contested view.[79] Moreover, to the extent that End of Immunity’s argument is aimed primarily at international courts,[80] Akande’s might be an even more expansive denial of immunity—at least immunity ratione materiae—because it explicitly encompasses domestic courts.[81] By approaching its topic with such deep commitment to the unified view or legality model, however, End of Immunity may miss the opportunity to engage with these interesting overlaps and inversions.

III. The Legality Model and the Broader Public

One way of understanding the decision not to engage in these details is by recognizing that End of Immunity seeks to bring wider attention to the topic of State-led atrocity.[82] Indeed, the book is driven by a sense of profound and overwhelming moral urgency that is accessible to and no doubt shared by a wide range of readers. These readers may not be so concerned with questions like how Judge Eboe-Osuji’s views interact with Dapo Akande’s. To the extent that the book is also written for specialists—perhaps those guilty of what End of Immunity would call “punctilious legalism”[83]—it seems to say to them, “you’ve lost the forest for the trees.”

Still, more specialized readers may not be satisfied with the book’s tendency to step around deep legal questions, especially those that would be essential to a bifurcated consideration of responsibility and immunity. Whereas the Al Bashir joint concurring opinion acknowledged the categories of immunity ratione personae and immunity ratione materiae and offered an argument for why the distinction should not matter in this context,[84] the book simply ignores the distinction.[85] Likewise, those familiar with the various possible relationships between treaty provisions and customary international law norms might expect an in-depth discussion of whether a provision adopted by majority vote over registered dissent—as was the case with the Treaty of Versailles’s Article 227[86]—could be evidence of customary international law.[87] But End of Immunity steers clear of what it calls “the pool of legal arcana.”[88]

In the book’s historical approach, further gaps may appear to some readers. Chapter 13 offers a prominent example. After End of Immunity has spent almost 200 pages walking readers through particular developments from WWI onwards, this seventeen-page chapter turns the clock back several centuries to canvass views on the “divine right of kings” from Caligula in ancient Rome[89] to Blackstone’s Commentaries and his subsequent critics.[90] Such a brief retelling of so much history—even if limited largely to Europe and the United Kingdom—necessarily and understandably will be incomplete. The chapter could give the impression, however, that almost all thinkers in these times and places agreed rulers were free to do whatever they liked. In other words, that the unified view held during these centuries as well, but with effects opposite to the ones Judge Eboe-Osuji advocates—political leaders having no responsibility to curtail their actions at all and certainly facing no court proceedings regarding their conduct. There is no mention in the chapter of progressive or otherwise dissenting thinkers (other than a pair of theologians discussed in a single sentence),[91] the social contract tradition,[92] the notions of popular sovereignty[93] or rights of resistance,[94] or even thinkers with more complicated views.[95] Nor does the chapter have space to grapple with shifting contexts across so many years, views, and even forms of State. Within the constraints of the unified view and the short chapter—perhaps something of an afterthought compared to the rest of the historical account—nuance was forced to give way.

Readers will also have to decide whether End of Immunity can in fact achieve its ultimate aims and put an end to the customary international law debate without addressing the bifurcated view or “legal arcana”[96] head on. The book seems most interested in international courts prosecuting still-sitting heads of State, [97] but it does not grapple with the fact that none of the cases cited as precedent for this actually involved an international court putting a sitting head of State on trial.[98] Indeed, I am not aware of any such case, presenting a potential gap in both state practice and opinio juris for the anti-immunity norm the book promotes.

Interestingly, not even the ICC’s judges seem entirely committed to the notion that customary international law includes an anti-immunity norm.[99] When considering Mongolia’s refusal to arrest and surrender Putin during his September 2024 visit, Pre-Trial Chamber II found that Mongolia had violated its obligations as a party to the Rome Statute, but it never mentioned customary international law. When considering the question of immunity, the chamber confined itself to treaty interpretation.[100] A conclusive answer to the customary international law question may require more practice to crystallize,[101] but End of Immunity does not seem to take these possible legal wrinkles seriously.

Nor does the book give an especially generous hearing to arguments in favor of (some) immunity. These might highlight the chilling effect on foreign affairs that a finding of no immunity ratione personae could have, the relationship between sovereignty and judgment that becomes particularly pointed in foreign national proceedings, or raw political concerns about most likely Global North actors pursuing sitting heads of Global South States for arrest and trial. Instead, the book rejects any such arguments out of hand.[102] At best, pro-immunity arguments are creating “the unseemly effect” of “a global cartel of impunity.”[103] At worst, they are “astonishingly immoral”[104] and advanced through dubious tactics[105] by individuals “enslaved by fear, or sold for hire.”[106] Once again, it would seem, End of Immunity has missed out on some of the richness and nuance that it could have deployed while arguing in favor of the anti-immunity norm.

At the same time, of course, the issuance of an arrest warrant itself may be understood as a violation of immunity,[107] and we must be mindful that indicted heads of State hand-picking where they travel to generate pro-immunity State practice is a deeply troubling trend.[108] Moreover, accepting that heads of State can be prosecuted after they are deposed, but not before, may create perverse incentives that outweigh the downsides of rejecting immunity—for monstrous leaders to cling to power, and for those hoping to see them punished to clear the path through their own violent means. These are important arguments for the anti-immunity norm, but they are largely absent from End of Immunity’s unified and tidy account.

The relevant legal and policy questions simply may be thornier than the book suggests. As the international legal community continues to wrestle with the issue of immunity, though, it should carefully consider the views and practice of all relevant States, including but not limited to those that have been victorious in war[109] or selected by the head of State themself to craft practice to their liking.[110] As Dire Tladi has argued, one need not ultimately support immunity to believe that we must still consider the matter “in an orderly fashion, following the methodology of international law.”[111] 

Concluding Thoughts

 Taken as a whole, End of Immunity is a valuable resource, further elaborating the views of a prominent actor in international law, illustrating the legality model in action, and bringing the topic of immunity to a wider audience. The gaps and omissions in this book may give some readers pause. But, as debate over immunity under customary international law continue, I have no doubt many will reach for End of Immunity as a touchstone in Judge Eboe-Osuji’s longstanding quest for criminal accountability.

Haley S. Anderson is an Academic Fellow and Lecturer in Law, Columbia Law School; PhD Candidate in Jurisprudence and Social Policy, Berkeley Law School. She very much thanks Monica Hakimi, Randle DeFalco, and Cody Corliss for conversations and comments on earlier versions of this review, and to the Columbia Journal of Transnational Law editors for asking her to write it. All errors are the author’s own.

[1] Scott Dodson, Dignity: The New Frontier of State Sovereignty, 56 Okla. L. Rev. 777, 777 (2003).

[2] See, e.g., Júlia Dias Carneiro, Bolsonaro takes the stand in historic Brazil coup trial, NPR (June 10, 2025), https://www.npr.org/2025/06/10/nx-s1-5428548/bolsonaro-brazil-coup-trial (describing the trial of former Brazilian president Jair Bolsonaro for his attempt to defy an election defeat in 2022); Hyung-Jin Kim, South Korean prosecutors indict impeached President Yoon Suk Yeol over martial law, AP (Jan. 26, 2025), https://apnews.com/article/south-korea-yoon-martial-law-indict-8f077c5a7608ae03ba131aa6f79d5854 (describing the indictment of South Korean President Yoon Suk Yeol for rebellion, one of the only charges for which presidents do not have immunity under South Korean law); Le mandat d'arrêt ciblant Bachar al-Assad sera examiné par la Cour de cassation le 4 juillet, Figaro (Mar. 24, 2025), https://www.lefigaro.fr/flash-actu/le-mandat-d-arret-ciblant-bachar-al-assad-sera-examine-par-la-cour-de-cassation-le-4-juillet-20250324 (discussing a French appeals court’s 2024 decision that immunity does not shield Bashar al-Assad from arrest and noting that the Court of Cassation will hear the case in July 2025); Karen Lema, Philippines sends ex-President Duterte to ICC over ‘drugs war’ killings, Reuters (Mar. 11, 2025), https://www.reuters.com/world/asia-pacific/philippines-edge-prospect-arrest-ex-president-duterte-over-drug-war-2025-03-11/ (announcing that the Philippines had just delivered its former president, Rodrigo Duterte, to the International Criminal Court for prosecution).

[3] Trump v. United States, 603 U.S. 593, 609 (2024) (absolutely immunity “within his exclusive sphere of constitutional authority”); id. at 614 (“at least” presumptive immunity “within the outer perimeter of his official responsibility”); see also Thomas P. Schmidt, Presidential Immunity: Before and After Trump, 79 Vand. L. Rev. (forthcoming 2026) (manuscript at 41 n.308), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5187348 (“The Court made clear several times that [presumptive] immunity was ‘at least’ presumptive, and it is hard to see why the Court would have included that caveat if there were not a few votes for absolute immunity even for non-core actions.”).

[4] In the Court’s March 5, 2025, decision to allow a district court injunction against the government to go into effect in Department of State v. AIDS Vaccine Advocacy Coalition, Justice Alito dissented, with Justices Thomas, Gorsuch, and Kavanaugh joining him. He argued that “[t]he Government has shown a likelihood of success on the merits of his argument that sovereign immunity deprived the District Court of jurisdiction to enter its enforcement order.” 145 S.Ct. 753, 755 (2025) (Alito, J., dissenting).

[5] See Ruther Comerford, Putin welcomed in Mongolia despite ICC arrest warrant, BBC (Sept. 3, 2024), https://www.bbc.com/news/articles/cwy527yex0no; see also Eve Sampson, Putin Plans First Visit to I.C.C. Member State Since Arrest Warrant, N.Y. Times (Aug. 30, 2024), https://www.nytimes.com/2024/08/30/world/europe/putin-visit-mongolia-icc.html (providing context before the visit);  Situation in Ukraine, ICC-01/22, Finding under article 87(7) of the Rome Statute on the non-compliance by Mongolia with the request by the Court to cooperate in the arrest and surrender of Vladimir Vladimirovich Putin and referral to the Assembly of States Parties, ¶ 40 (Oct. 24, 2024) (rebuking Mongolia after the visit).

[6] See Andrew Higgins & Marlise Simons, Hungary Says It Will Withdraw From I.C.C. as Orban Hosts Netanyahu, N.Y. Times (Apr. 3, 2025), https://www.nytimes.com/2025/04/03/world/europe/hungary-icc-netanyahu.html; see also Presidency of the Assembly of States Parties responds to announcement of withdrawal from the Rome Statute by Hungary, Int’l Crim. Ct. (Apr. 3, 2025), https://www.icc-cpi.int/news/presidency-assembly-states-parties-responds-announcement-withdrawal-rome-statute-hungary (reminding Hungary that it must comply with its obligations during the time it was a party to the Rome Statute, even if it subsequently withdraws).

[7] See Rome Statute of the International Criminal Court art. 89, July 17, 1998, 2187 U.N.T.S. 90. As this essay discusses later, whether these obligations extend to carrying out arrest warrants against heads of non-States Parties has been a matter of some controversy. See infra notes 26–27 and accompanying text.

[8] Chile Eboe-Osuji, End of Immunity: Holding World Leaders Accountable for Aggression, Genocide, War Crimes, and Crimes Against Humanity (2024).

[9] See id. at xvii (“[A]ny insistence that customary international law had ever recognized immunity for heads of state before an international court is an insistence enabled either by a systemic misunderstanding of the actual operation of customary international law’s rules of recognition or a stubborn rejection of the progress of international law . . . .”).

[10] See infra Part I.

[11] See infra notes 96–101 and accompanying text (discussing whether the customary international law argument offered is conclusive).

[12] The book does not, for example, devote much space to considering the case for immunity before laying out the case against it. See, e.g., Eboe-Osuji, supra note 8, at 23 (dismissing immunity as merely a tool for avoiding accountability); see also generally infra Part II (identifying the model of immunity deployed in this book and contrasting it to another dominant model of immunity); Part III (discussing the limitations associated with adopting the book’s view of immunity while also writing for a general audience).

[13] See Ann Woolhandler, Patterns of Official Immunity and Accountability, 37 Case W. Rsrv. L. Rev. 396, 412–13 (1987) (identifying this model); see also infra Part II (discussing the legality model’s appearance in this work).

[14] As Judge Eboe-Osuji remarked after End of Immunity’s publication, he sees his work as engaged in “a rather tedious game of ‘whack-a-mole’” as old arguments continue resurfacing. Chile Eboe-Osuji, There is No Immunity for the International Criminal Court to Respect, Just Sec. (Apr. 11, 2025), https://www.justsecurity.org/110266/no-immunity-icc-respect/.

[15] Eboe-Osuji, supra note 8, at xxi.

[16] See Chile Eboe-Osuji, No Immunity for Heads of State for International Crimes, Lawfare (May 23, 2024), https://www.lawfaremedia.org/article/no-immunity-for-heads-of-state-for-international-crimes [hereinafter Eboe-Osuji, No Immunity]; Chile Eboe-Osuji, The Absolute Clarity of International Legal Practice’s Rejection of Immunity Before International Criminal Courts, Just Sec. (Dec. 8, 2022), https://www.justsecurity.org/84416/the-absolute-clarity-of-international-legal-practices-rejection-of-immunity-before-international-criminal-courts/.

[17] See Chile Eboe-Osuji, International Law Rejects Immunity for International Crimes—Full Stop, 21 J. Int’l Crim. Just. 461, 462 (2023) (“[T]here is a clear-cut position in international law. It is this: customary international law recognizes no immunity for heads of state.”).

[18] Prosecutor v. Omar Hassan Ahmad Al-Bashir, ICC-02/05-01/09 OA2, Judgment in the Jordan Referral re Al-Bashir Appeal (May 6, 2019) [hereinafter Al Bashir Appeals Chamber]; see also Eboe-Osuji, supra note 8, at xxiv (noting Judge Eboe-Osuji’s involvement).

[19] Prosecutor v. Omar Hassan Ahmad Al-Bashir, ICC-02/05-01/09-397-Anx1, Joint Concurring Opinion of Judges Eboe-Osuji, Morrison, Hofmański and Bossa (May 6, 2019) [hereinafter Al Bashir Appeals Concurrence].

[20] Rome Statute of the International Criminal Court art. 27(2), July 17, 1998, 2187 U.N.T.S. 3.

[21] See Vienna Convention on the Law of Treaties art. 34, May 23, 1969, 1155 U.N.T.S. 331 (“A treaty does not create either obligations or rights for a third State without its consent.”).

[22] See Prosecutor v. Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09, Warrant of Arrest for Omar Hassan Ahmad Al Bashir, p. 8 (Mar. 4, 2009) (describing Al Bashir as “President of the Republic of the Sudan since his appointment by the RCC-NS on 16 October 1993”).

[23] See Chimène Keitner, The Common Law of Foreign Official Immunity, 14 Green Bag 2d 61, 63 (2010) (“Status-based immunity [immunity ratione personae] shields individuals from legal proceedings while they occupy certain offices, to avoid interference with their ability to perform official functions.”).

[24] Id. (“Conduct-based immunity [immunity ratione materiae] shields individuals from legal consequences for certain acts, whether or not the individuals are still in office, because those acts are considered acts of the state, rather than acts of the individual.”).

[25] As an example of Al Bashir’s resulting notoriety, see John Prendergast & Akshaya Kumar, The Sudanese President’s Escape Highlights the Determination of African Lawyers, Time (June 15, 2015), https://time.com/3921848/omar-al-bashir-sudan-south-africa/ (“Sudan’s President Omar al-Bashir, who has been dodging an International Criminal Court (ICC) arrest warrant for years, is now safely back in Khartoum. But he returns branded with the scarlet letter of a wanted man, a fugitive from international justice.”).

[26] See, e.g., Al Bashir Appeals Chamber, supra note 18, at ¶ 15 (describing Jordan’s position). For further examples, see infra sources cited in note 27.

[27] The alternate theory of non-immunity in Al Bashir turns on the Security Council’s March 2005 referral of the case to the ICC. See S.C. Res. 1593, ¶¶ 1, 3 (Mar. 31, 2005) (referring the situation and deciding that “the Government of Sudan and all other parties to the conflict in Darfur, shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution”); see also Harmen van der Wilt, Immunities and the International Criminal Court, in The Cambridge Handbook of Immunities and International Law 595, 599–601 (Tom Ruys, Nicholas Angelet & Luca Ferro eds., 2019) (comparing a “customary international law solution” with a “Security Council solution”); Erika de Wet, The Implications of President Al-Bashir’s Visit to South Africa for International and Domestic Law, 13 J. Int’l Crim. Just. 1049, 1057–63 (2015) (arguing that Resolution 1593 required all U.N. members “to regard his immunity as having been waived”). This might resolve the singular instance of immunity before the Court in Al Bashir’s case, but it left other issues murkier. First, the States who allowed Al Bashir to visit freely despite his outstanding warrant argued that such waiver did not extend to immunity from domestic processes. See, e.g., Prosecutor v. Al Bashir, ICC-02/05-01/09, Decision under article 87(7) of the Rome Statute on the non-compliance by Jordan with the request by the Court for the arrest and surrender of Omar Al-Bashir, ¶ 16 (Dec. 11, 2017) (recounting Jordan’s position that the Security Council’s referral did not expressly “impose an obligation on States, including States Parties to the Rome Statute, to lift the immunity of Sudan’s officials”); Prosecutor v. Al Bashir, ICC-02/05-01/09, Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir, ¶ 8 (Dec. 12, 2011) (laying out Malawi’s position that Al Bashir was entitled to immunity); see also Priya Pillai, The African Union, the International Criminal Court, and the International Court of Justice: At the Fault Lines of International Accountability, ASIL Insights (Aug. 22, 2018), https://www.asil.org/insights/volume/22/issue/10/african-union-international-criminal-court-and-international-court (describing the African Union’s position that the Security Council resolution did not waive immunities in relation to third states and decision not to cooperate with the ICC’s warrant for Al Bashir). But see Dapo Akande, The Legal Nature of Security Council Referrals to the ICC and its Impact on Al Bashir’s Immunities, 7 J. Int’l Crim. Just. 333, 340–42 (2009) (refuting this approach).

   What’s more, given the Security Council’s political deadlock and the unlikelihood of it referring any other cases to the ICC in its current form, this approach would have little impact outside Al Bashir. It could not, for example, justify denying immunity to Putin given that neither Russia nor Ukraine is a member of the Court and that the Security Council did not refer the case. See, e.g., Shane Darcy, Aggression by P5 Security Council Members: Time for ICC Referrals by the General Assembly, Just Sec. (Mar. 16, 2022), https://www.justsecurity.org/80686/aggression-by-p5-security-council-members-time-for-icc-referrals-by-the-general-assembly/ (“A Security Council referral to the ICC is inconceivable in the context of Ukraine, owing to the Russian veto . . . .”).

[28] Al Bashir Appeals Chamber, supra note 18, at ¶ 4.

[29] Id. ¶ 1; see also Prosecutor v. Al-Bashir, ICC-02/05-01/09-397-Anx2, Joint Dissenting Opinion of Judge Luz del Carmen Ibáñez Carranza and Judge Solomy Balungi Bossa, Prolegomena (May 6, 2019) (clarifying that their partial dissent concerned only the referral of Jordan to the Assembly of States Parties but that they agreed with the rest of the chamber on the question of immunity under customary international law).

[30] Al Bashir Appeals Chamber, supra note 18, at ¶ 113.

[31] Al Bashir Appeals Concurrence, supra note 19, at ¶¶ 76–123.

[32] Id. ¶¶ 125–133, 144–150.

[33] Id. ¶¶ 151–164.

[34] Id. ¶¶ 165–174.

[35] See Eboe-Osuji, supra note 8, at 57–66.

[36] See id. at 233–40.

[37] See id. at 67–166 (laying out the Allies’ post-WWI negotiations over what to do about the Kaiser); id. at 167–84 (describing the failed attempt to extradite and place the former Kaiser on trial); id. at 185–90 (considering the Allies’ decision to let a German national court try German officials other than the Kaiser).

[38] See id. at 191–211.

[39] See id. at 213–32.

[40] See generally Frédéric Mégret, The International Criminal Court: Between International Ius Puniendi and State Delegation, 23 Max Planck Y.B. U.N. L. 161 (2019) (describing the debate).

[41] Eboe-Osuji, supra note 8, at 62; see also id. at 285 (approvingly describing Claus Kreß’s view that “the criminal jurisdiction required to ensure” accountability for international crimes “belongs to the international community as a whole, as a matter of their right to punish the violation of conducts that threaten the peace and security of the community of nations”).

[42] See, e.g., id. at 62–64.

[43] See, e.g., id. at xiii–xiv (opening the prologue with a brief account of Russia’s 2022 invasion); id. at 10–12 (discussing the difficulty of efforts to hold Russia or Putin accountable for the crime of aggression in Ukraine); id. at 26 (characterizing Russia’s invasion of Ukraine as evidence “that there are still leaders of modern states who would like to keep using [unlawful] tactics to acquire or expand their current territories”).

[44] Id. at 10, 13.

[45] Id. at 241–56.

[46] Id. at 257–68.

[47] See id. at 273–76 (proposing amendments to the Rome Statute and a new treaty expanding civil liability in domestic courts).

[48] Id. at 283–88.

[49] Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, 2002 I.C.J. Rep. 3, ¶ 71, (Feb. 14) [hereinafter Arrest Warrant].

[50] Id. ¶ 58.

[51] Eboe-Osuji, supra note 8, at 235. In an endnote, the book then offers a list of sources but does not explain how these demonstrate a rule of customary international law regarding national courts. See id. at 348–49 n.18; see also, e.g., id. at 267 (referring to heads of state being subjected to foreign national jurisdiction as a source of “awkwardness” with “no juristic significance”).

[52] This marks a departure from the 2019 joint concurring opinion in Al Bashir. See Al Bashir Appeals Concurrence, supra note 19, at ¶ 185 (“[I]nternational law does not readily permit one State’s exercise of its own national criminal jurisdiction to disrupt the political leadership of another State. Such is the essence of the norm of sovereign equality of States.”).

[53] Arrest Warrant, supra note 49, at ¶ 61.

[54] Jurisdictional Immunities of the State (Germany v. Greece), Judgment, 2012 I.C.J. Rep. 99, ¶ 81 (Feb. 3).

[55] Id. ¶ 139(1). International law, of course, has an entire area of law dealing with State responsibility for internationally wrongful acts. See generally James Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (2002).

[56] Trump v. United States, 603 U.S. 593, 613 (2024) (“The hesitation to execute the duties of his office fearlessly and fairly that might result when a President is making decisions under ‘a pall of prosecution’ raises ‘unique risks to the effective functioning of government.’” (quoting first McDonnell v. United States, 579 U.S. 550, 575 (2016); then Nixon v. Fitzgerald, 457 U.S. 731, 751 (1982)); see also Cody Corliss, An International Prosecutor as U.S. Special Counsel, 2025 Utah L. Rev. 675, 706 (“Such broad presidential immunity has significant potential to undermine the American rule of law in the future.”); Chris Mirasola, Domestic Military Deployments after Trump v. United States, 67 Wm. & Mary L. Rev. (forthcoming 2025) (manuscript at 18–22), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5179807 (emphasizing that presidential immunity may, on the Court’s theory, trickle down to inferior officers). As Cody Corliss has highlighted, however, “there is no question that a president may be prosecuted following his or her term for [private] acts committed in office” and Special Counsel Jack Smith in that case may have “inten[ded] to reframe Trump’s conduct as private, unofficial acts.” Corliss, supra, at 699, 701.

[57] Woolhandler, supra note 13, at 413 (“The basic standard for judging a claim under a discretion model is whether the official acted within the outer perimeters of his duties.”).

[58] Id. at 412–13; see also Schmidt, supra note 3, at 11 (contrasting Woolhandler’s models). Questions relating to jurisdiction and immunity, then, are left to the legislature. See Andrew Kent, Lessons for Bivens and Qualified Immunity Debates from Nineteenth-Century Damages Litigation Against Federal Officers, 96 Notre Dame L. Rev. 1755, 1771–72 (2021) (describing this as the view of the Court in Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and associating this regime with Woolhandler’s legality model).

[59] See Woolhandler, supra note 13, at 432–33 (“The Marshall Court had identified immunity with legality: illegal acts could subject an official, whether of high or low station, to damages and coercive relief.”).

[60] Schmidt, supra note 3, at 11.

[61] Report of the International Law Commission to the General Assembly, [1950] Y.B. Int’l L. Comm’n 374, U.N. Doc. A/CN.4/SER.A/1950/Add. I [hereinafter ILC 1950 Report].

[62] G.A. Res. 177(II) (Nov. 21, 1947).

[63] See, e.g., Eboe-Osuji, No Immunity, supra note 16.

[64] ILC 1950 Report, supra note 61, at 375 (emphasis added).

[65] Eboe-Osuji, supra note 8, at 233 (emphasis added).

[66] ILC 1950 Report, supra note 61, at 375.

[67] Woolhandler, supra note 13, at 413.

[68] Id. at 398 (promising to “trace[] the predominance of the legality model in the Marshall Court”).

[69] Chief Justice Marshall served from 1801 until his death in 1835. See Gustavus Myers, History of the Supreme Court of the United States 227, 353 (1918). As of Marshall’s passing, there were only twenty-four states in the union. See Aaron O’Neill, Number of US States by Year since 1776, Statista (Aug. 9, 2024), https://www.statista.com/statistics/1043617/number-us-states-by-year/. This was twenty-six years before the outbreak of the Civil War, W.E.B. Du Bois, Black Reconstruction in America 108 (Transaction Publishers 2012), and over thirty years before the ratification of the Thirteenth, Fourteenth, and Fifteenth Amendments to the U.S. Constitution. See Jack M. Balkin, The Reconstruction Power, 85 N.Y.U. L. Rev. 1801, 1808 (2010) (describing Congress passing these amendments “[b]etween 1865 and 1870”).

[70] 343 U.S. 579 (1952).

[71] See Schmidt, supra note 3, at 16, 16–21.

[72] See id. at 5 (arguing that the Supreme Court’s recent decision in Trump v. United States “unsettles th[e] equilibrium” between the legality and discretion models in U.S. law and threatens to remove the legality model from the system altogether).

[73] The only real discussion of this distinction arises when considering how to interpret some dissent from American negotiators for the Treaty of Versailles’s Article 227. See Eboe-Osuji, supra note 8, at 149–51; see also id. at 235–36 (briefly characterizing a submission by Diane Orentlicher to the Appeals Chamber of the Special Court for Sierra Leone as arguing neither personal immunity nor immunity ratione materiae applied in that case).

[74] See, e.g., id. at 20 & 295 n. 21 (referring to Akande as “the leading apologist of head-of-state immunity”); id. at 283–84 & 356 n.1 (putting Akande forward as the “leading proponent” of the view that international courts’ jurisdiction is derivative of domestic courts’ and then describing the view, as articulated by Akande, as “beset with serious shortcomings”).

[75] See infra notes 102–106 and accompanying text (further discussing End of Immunity’s approach to opposing views).

[76] See, e.g., Dapo Akande, The Immunity of Heads of States of Nonparties in the Early Years of the ICC, 112 AJIL Unbound 172, 174 (2018) (arguing that “address[ing] whether the state official bears criminal responsibility . . . is not the same as regulating immunity from the tribunal’s jurisdiction”).

[77] See Dapo Akande, International Law Immunities and the International Criminal Court, 98 Am. J. Int’l L. 407, 409–11, 416–17 (2004) (laying out the policy rationales for immunity ratione personae in domestic courts and establishing a framework according to which immunity waivers in international courts should be considered).

[78] For Judge Eboe-Osuji, this is because there is no immunity from prosecution for such crimes. See supra note 9. For Akande, it is because “the reasons for which such immunity is conferred do not apply to prosecutions for international crimes.” Akande, supra note 77, at 414.

[79] See Joana de Andrade Pacheco, Where do States Stand on Official Immunity Under International Law?, Just Sec. (Apr. 19, 2024), https://www.justsecurity.org/94830/where-do-states-stand-on-official-immunity-under-international-law/ (describing disagreement within the ILC and among States regarding an ILC draft article that would remove foreign officials’ immunity ratione materiae in domestic court prosecutions for certain international crimes).

[80] See supra notes 49–52 and accompanying text (noting that the book’s argument sometimes suggests there would be no immunity in foreign national courts, either).

[81] See Akande, supra note 77, at 408.

[82] See Eboe-Osuji, supra note 8, at vii (describing the book’s audience as not only “[l]egal professionals” but also “[t]he general reader—whether or not a lawyer”).

[83] Id. at 102.

[84] See Al Bashir Appeals Concurrence, supra note 19, at ¶¶ 239–52.

[85] See supra note 73 and accompanying text (introducing this absence).

[86] See Eboe-Osuji, supra note 8, at 150 (concluding that a treaty provision adopted by contested majority vote must be evidence of emerging customary international law and suggesting that concluding otherwise would mean “the principle of majority must be ignored when a decision is arrived at by vote following a failure of consensus”).

[87] See North Sea Continental Shelf Cases (Fed. Republic of Ger./Denmark; Fed. Republic of Ger./Neth.), 1969 I.C.J. 3, ¶ 69 (Feb. 20) (specifying that a treaty provision may record an existing customary norm, crystallize an emerging customary norm, form the basis of a subsequent customary norm, or simply not be part of customary international law).

[88] Eboe-Osuji, supra note 8, at 149.

[89] Id. at 243–44.

[90] Id. at 250–53.

[91] See, e.g., John Lilburne, Innocency and Truth Justified 57 (1645) (“[P]ower is but secondary and derivitive in Princes, (and say I in counsells likewise) the fountaine and efficient cause is the people . . . .”). But see Eboe-Osuji, supra note 8, at 247 (briefly mentioning St. Ambrose, St. Isidore, and their followers as representatives of “[a] minority of progressive ecclesiastical scholars”).

[92] See generally, e.g., Jean-Jacques Rousseau, Of the Social Contract, in Rousseau The Social Contract and Other Later Political Writings 39 (Victor Gourevitch ed. & trans., Cambridge University Press 2019) (1762); John Locke, Two Treatises of Government (Peter Laslett ed., Cambridge University Press 1988) (1689). Although the chapter cites John Locke for his critiques of Richard Filmer, see Eboe-Osuji, supra note 8, at 352 n.40–44, it makes no mention of Locke’s own views in the chapter, or indeed elsewhere in the book. As a matter of providing textual support for the chapter’s account of Filmer, this is also an unexpected approach, although it may be in line with the book’s attitude toward sources. See, e.g., id. at 88 & 313–14 n.83 (attributing an assertion about Richard Zouche’s work to a Google translate rendering of Zouche’s Latin into English).

[93] See generally, e.g., Daniel Lee, Popular Sovereignty in Early Modern Constitutional Thought (2016) (tracing the idea of popular sovereignty, as well as its popular association with the constitution of and limitations on public authority, from Rome to Stuart England).

[94] See, e.g., Baruch Spinoza, Tractatus politicus, in 2 The Collected Works of Spinoza 503, 520 (Edwin Curley ed. & trans., Princeton University Press 2016) (“speaking explicitly about things which can’t belong to the Commonwealth’s Right and which human nature is generally horrified by”).

[95] See, e.g., Jean Bodin, On Sovereignty 1, 13 (Julian H. Franklin ed. & trans., Cambridge University Press 1992) (1583) (describing the sovereign’s power as “absolute and perpetual” but also subject to “divine and natural laws” (emphasis added)); Thomas Hobbes, Leviathan 336–38 (Noel Malcolm ed., Oxford University Press 2012) (1651) (specifying that the sovereign’s right to command is unlimited but that subjects have a right to resist whenever carrying out a command would require them to violate their human nature); see also Susanne Sreedhar, Hobbes on Resistance 3–4 (2010) (introducing the argument that “Hobbes’s theory of [individuals’] resistance right is not only compatible with his justification for absolute sovereignty, but, in fact, required by that justification”).

[96] Eboe-Osuji, supra note 8, at 149.

[97] See, e.g., supra note 43 (framing the book as a response to Russia’s war in Ukraine and attempts to hold President Putin accountable therefor).

[98] The German Kaiser abdicated almost two months before the Paris Peace Conference convened, and seven months before the Versailles Treaty and its Article 227 were signed. See William A. Schabas, The Trial of the Kaiser 73 (2018) (abdication on November 28, 1918); id. at 100 (Paris Peace Conference opened on January 18, 1919); id. at 212 (Treaty of Versailles signed June 28, 1919). The American attempt “to kidnap the Kaiser” in order to “bring[] [him] to justice” also occurred after Wilhelm’s abdication. Id. at 80.

   Karl Dönitz, the first former head of State to face trial, did not sit in the dock until well after his very short time at the helm of Nazi Germany had ended. See Ward Ferdinandusse, Why the ICC Should Respect Immunities of Heads of Third States, Just Sec. (Mar. 19, 2025), https://www.justsecurity.org/108885/icc-immunities-heads-of-third-states/ (“[N]o prosecution of a sitting Head of State took place or was even contemplated at the [Nuremberg Tribunal] trials.”). After Hitler’s suicide the previous day, Dönitz became head of the German government on May 1, 1945. See 1 Trial of the Major War Criminals Before the International Military Tribunal 310 (1947). His time in office lasted just over a week, until the complete German capitulation. See id. at 311 (dating capitulation to May 9). Ultimately, the Nuremberg tribunal found him guilty of crimes against peace and war crimes, but not guilty of the common conspiracy that was charged. Id. at 315.

   Likewise, Charles Taylor of Liberia and Slobodan Milošević of Yugoslavia were only tried once they had left office and been handed over to the Court by the States they had previously governed. Taylor was indicted while President of Liberia in March 2003, stepped down from the presidency and went into exile in Nigeria in August 2003, was arrested by Nigeria and returned to Liberia in March 2006, and finally was transferred by Liberia to the court. See Charles Taylor, Residual Special Court for Sierra Leone, https://rscsl.org/the-scsl/cases/charles-taylor/ (last visited July 3, 2025). Milošević was indicted while President of the Federal Republic of Yugoslavia in March 1999, conceded the September 2000 Yugoslav presidential election and ceded power in October 2000, was arrested in Serbia for domestic offenses the following spring, and finally in June 2001 was transferred by Serbia to a U.S. military base with the intent of ultimately transferring him to the Hague. See Ian Traynor, Obituary: Slobodan Milosevic, Guardian (Mar. 12, 2006), https://www.theguardian.com/news/2006/mar/13/guardianobituaries.warcrimes; Timeline: The Political Career of Slobodan Milosevic, Radio Free Europe (Mar. 13, 2006), https://www.rferl.org/a/1066641.html.

   Former President of the Philippines Rodrigo Duterte will soon follow in their footsteps. See Lema, supra note 2. And Al Bashir may ultimately be tried if Sudan abides by its 2020 agreement to surrender him. See Dire Tladi, Sudan Agrees to Send Al Bashir to the ICC: What Now for the Law?, Opinio Juris (Feb. 12, 2020), https://opiniojuris.org/2020/02/12/sudan-agrees-to-send-al-bashir-to-the-icc-what-now-for-the-law/ (commenting on this agreement). But he has been out of power for six years now and has not yet faced trial in the Hague. See Declan Walsh & Joseph Goldstein, Sudan’s President Omar Hassan al-Bashir Is Ousted, but Not His Regime, NY Times (Apr. 11, 2019), https://www.nytimes.com/2019/04/11/world/africa/sudan-omar-hassan-al-bashir.html (“Sudan’s military announced at lunchtime on Thursday that it had finally unseated President Omar Hassan al-Bashir . . . .”); Al Bashir Case, Int’l Crim. Ct., https://www.icc-cpi.int/darfur/albashir (last visited July 3, 2025) (noting that the case is still in the pre-trial phase and cannot proceed until “Al Bashir is arrested and transferred to the seat of the Court in The Hague”); see also Zeinab Mohammed Salih & Oliver Holmes, Sudan’s ex-leader Omar al-Bashir being held in military hospital, says army, Guardian (Apr. 26, 2023), https://www.theguardian.com/world/2023/apr/26/sudan-former-president-accused-of-genocide-may-be-free-after-prison-attack (reporting on Al Bashir being moved from a prison to a military facility in Sudan amidst fighting); Samy Magdy, Sudan’s jailed former strongman Omar al-Bashir is taken to a hospital in the north for better care, AP (Sept. 25, 2024), https://apnews.com/article/sudan-war-al-bashir-darfur-military-rsf-3486ebe1f9c563ae46d7fc38ca204bb9 (reporting on Al Bashir being transferred to another facility in Sudan).

[99] See Akande, supra note 76, at 172 (“Although pre-trial chambers . . . have consistently concluded that the position of the accused as a head of state does not exempt the accused from proceedings before the Court or from arrest by states parties, they have offered different and inconsistent reasons.”).

[100] See Situation in Ukraine, ICC-01/22, Finding under article 87(7) of the Rome Statute on the non-compliance by Mongolia with the request by the Court to cooperate in the arrest and surrender of Vladimir Vladimirovich Putin and referral to the Assembly of States Parties, ¶ 27 (Oct. 24, 2024) (“[A]rticle 27 of the Statute has the effect of removing any and all international law immunities of officials, including Heads of State, and binds to that effect States Parties, as well as States that have accepted the Court’s jurisdiction, not to recognise any kind of immunity or apply special procedural rules that may attach to any persons.”); see also Keiichiro Kawai, The ICC’s Turn to Cynical Solipsism: The PTC II’s Finding of Mongolia’s Non-compliance in the Case against Putin, EJIL:Talk! (Nov. 26, 2024), https://www.ejiltalk.org/the-iccs-turn-to-cynical-solipsism-the-ptc-iis-finding-of-mongolias-non-compliance-in-the-case-against-putin/ (“[T]he Mongolia Decision reduces the entire relevant legal questions into interpretive questions of the Statute. Except for the sections that cite Mongolia’s submission and briefly dismiss them, the term ‘custom(ary law)’ does not appear even once.”).

[101] See Adil Ahmad Haque, Head of State Immunity is Too Important for the International Court of Justice, Just Sec. (Feb. 24, 2020), https://www.justsecurity.org/68801/head-of-state-immunity-is-too-important-for-the-international-court-of-justice/ (advocating against appealing to the International Court of Justice for an answer to this question because “[t]he relevant State practice remains unrepresentative, the underlying purposes and principles controversial and abstract, and the applicable presumptions debatable”); see also Nema Milaninia, Time to Revisit the ICC’s Position on Head-of-State Immunity?, Just Sec. (Mar. 27, 2025), https://www.justsecurity.org/109590/time-to-revisit-the-iccs-position-on-head-of-state-immunity/ (suggesting that, if there wasn’t previously immunity under customary international law, it may be emerging in response to the Al Bashir case).

[102] See, e.g., Eboe-Osuji, supra note 8, at 255 (dedicating a single sentence to possible serious defenses of immunity before arguing that these nonetheless have the effect of creating a “cartel of impunity”).

[103] Id.

[104] Id. at 23.

[105] Id. at xxi–xxiii (characterizing “immunity-tolerant” or “pro-immunity” scholars as relying on obfuscation, underhanded maneuvering, and “a potpourri of fallacies”).

[106] Id. at 22 (quoting Emer de Vattel, The Law of Nations 104 (Béla Kapossy & Richard Whatmore eds., Liberty Fund 2008) (1758)); see also id. (noting that Vattel’s “reproach of transactional scholarship has not lost its resonance”).

[107] See Arrest Warrant, supra note 49, at ¶ 71 (noting the Belgian government’s issuance of an arrest warrant for Congo’s sitting Minister for Foreign Affairs “effectively infringed [the official’s] immunity”). Warrants for at least the post–WWII defendants discussed in End of Immunity were issued while they were still in office. See Prosecutor v. Charles Ghankay Taylor, Case No. SCSL-2003-01-1, Warrant of Arrest and Order for Transfer and Detention (May 7, 2003); Charles Taylor, supra note 98 (noting Taylor was President at the time of his indictment in March 2003 and stepped down in August 2003); The Prosecutor of the Tribunal v. Slobodan Milošević, Case No. IT-99-37-I, Warrant of Arrest and Order for Surrender (Int’l Crim. Trib. For the Former Yugoslavia May 24, 1999); Press Release, Int’l Crim. Trib. for the Former Yugoslavia, President Milosevic and Four other Senior Fry Officials Indicted for Murder, Persecution and Deportation in Kosovo (May 27, 1999), https://www.icty.org/en/sid/7765 (announcing arrest warrant for Milošević, “the President of the Federal Republic of Yugoslavia”); see also supra note 22 (quoting from the ICC’s arrest warrant for Al Bashir).

[108] See Haque, supra note 101 (arguing that the sample of state practice in the Al Bashir case “was skewed by al-Bashir and his government”); see also Milaninia, supra note 101 (“Overall, reactions to ICC arrest warrants—especially those targeting high-level officials—reflect a fragmented landscape. While some states have affirmed their commitment to cooperation, others have either remained silent or publicly opposed the Court’s actions, often invoking competing interpretations of immunity or political sensitivities.”).

[109] See, e.g., Hans Kelsen, Will the Judgment in the Nuremberg Trial Constitute a Precedent in International Law?, 1 Int’l L. Q. 153, 170–71 (1947) (arguing that the Nuremberg decision is “a rule applicable only to vanquished States by the victors”).

[110] See Haque, supra note 101 (noting that the practice relating to “arresting visiting Heads of State” mostly “arose in the al-Bashir case itself” and that this sample of practice “was skewed by al-Bashir and his government” because “Al-Bashir did not choose his travel destinations at random”).

[111] Tladi, supra note 98.