Cornell International Law JournalThe preeminent source for scholarship on foreign and international law

The debate on how to prosecute the international crimes linked to the aggression of the Russian Federation against Ukraine is ongoing. This Article explores an aspect of that debate, i.e., whether international or national courts may prosecute those who are allegedly entitled to a personal immunity under international law, particularly Vladimir Putin, the head of state of the Russian Federation. The debate has so far been particularly alive in relation to the question of which type of international court is able to “pierce the veil of head of state immunity.” This is because—according to the nearly unanimous view on the matter—foreign national courts cannot prosecute a foreign head of state without the consent of his or her state. The assumption is, therefore, that heads of state enjoy absolute immunity from foreign jurisdiction and inviolability. A decision of the International Court of Justice (ICJ) in the Arrest Warrant case strongly supports this view. In contrast, according to a minority of scholars, foreign domestic prosecutions of heads of state for international crimes are possible. They argue that the history of International Criminal Law (ICL) contradicts the position adopted by the ICJ in Arrest Warrant. The most important support for their argument is the judgment of the Nuremberg International Military Tribunal (IMT). In its decision, the IMT set forth a non-immunity principle for international crimes. This Article introduces a novel perspective on the matter. It puts forward that, even though the judgments of the ICJ and the IMT are apparently incompatible, they can be reconciled. The main argument of the Article is that, whereas the judgment of the ICJ sets out a general rule of head of state immunity which applies in times of peace, the IMT judgment supports the conclusion that the law of war, as lex specialis, provides an exception to such rule for situations of international armed confict.

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