In a post here a couple of weeks ago Jens Iverson argues that “Nowhere does the Rome Statute explicitly recognize head of state immunity as a reason not to comply with obligations under the Statute.” He argues that although Article 98(1) of the ICC Statute instructs the Court not to proceed with “a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State”, this provision does not apply to Head of State immunity. In his view, this is so because head of state immunity is not the same thing as either state immunity or diplomatic immunity. Jens’ basic point is that Art. 98 only covers the immunity of the State (and diplomatic immunity) and that the immunity of heads of States is something different from this. It is true that there are particular rules that apply to the immunity of the head of State and it is also correct that the scope of the immunity of the head of State (and indeed of other State officials) is different from the scope of the immunity of the State itself. However, it is incorrect to say that head of State is not an aspect of State immunity. In my view, it is also incorrect to suggest that the reference to State immunity in Article 98(1) does not include the immunity of the head of State or other state officials.
The immunity of the head of State (or other State officials) is granted not for the personal benefit of the head of State but is for the benefit of the State. This is why that immunity can be waived by the State. The immunity is one which belongs to the State, it is the right of the State, which is why the State is entitled to insist on compliance with the international law rules. When a State insists, in a diplomatic claim or in judicial proceedings before an international tribunal, that there has been a violation of the immunity of the head of State (or other State official), the State does not have to exhaust domestic remedies. This is because the State is seeking to enforce its own rights. This is because the State is seeking to enforce its own rights. No one suggested that the DR Congo should have first brought proceedings in Belgium before initiating the Arrest Warrant Case dealing with the immunity of its Foreign Minister. This is because the State was seeking to enforce its own rights. The immunity belongs to the State.
As Sangeeta Shah and I explain in an EJIL article, part of the reason for international law granting immunity to State officials from the jurisdiction of other States is because the State is a corporate body which must act through natural persons. To grant immunity to the State without providing for some immunity to State officials would completely defeat the immunity of the State itself. So, State immunity includes the immunity of its officials for acts performed in the course of their functions. This is immunity ratione materiae. Head of State immunity is immunity ratione personae but this variant of immunity is also conferred for the benefit of the State rather than that of the individual. In the Arrest Warrant Case, the ICJ stated with respect to the immunity ratione personae of the Foreign Minister:
“In customary international law, the immunities accorded to Ministers for Foreign Affairs are not granted for their personal benefit, but to ensure the effective performance of their functions on behalf of their respective States.” (para. 53)
The same is true of the head of State. His or her immunity is also for the benefit of the State and is in that sense merely a part of the immunity of the State. When Art. 98(1) refers to the obligations of a State with regard to State immunity of a person it must be taken as referring to all those immunities which to individuals as a result of their connection with a State. Thus it not only includes the immunity of all State officials ratione materiae (to the extent that they apply), consular immunity, immunity of special missions and all those immunities which apply ratione persone, including the immunity of the head of State.
If Jens position – that head of State immunity is not part of State immunity – were correct, then we would be in the anomalous position that other State officials with immunity ratione personae could benefit from Article 98 but the Head of State could not. This would be a manifestly absurd result. Though of course if one takes the view of the ICC Pre-Trial Chamber in the Bashir Case (see comment here) no one benefits from Art. 98 and the drafters wasted their time in including it in the Statute. Another manifestly absurd position.