This chapter discusses the immunities of individuals in relation to criminal prosecution for international crimes. It introduces the main two types of immunity: functional immunity and personal immunity. It discusses diplomatic immunity as a particular illustration. The chapter then discusses limits on functional immunity, with the Pinochet decision and other precedents. It then discusses the harder situation of personal immunity, as explained by the International Court of Justice in the Arrest Warrant Decision. It reviews various ways that states have relinquished immunity, including through Security Council resolutions under Chapter VII of the UN Charter, or through ratification of the ICC Statute. The chapter surveys the many issues about whether Security Council referrals to the ICC, coupled with a duty to cooperate fully, have the same effect of removing immunity. The chapter then discusses the legal position advanced by the Sierra Leone Special Court in the Taylor case, and endorsed by the ICC Appeals Chamber in the Al Bashir case, that there are no immunities before international courts, by virtue of their special nature. The chapter canvasses criticism of the theory as well arguments in favour of it.

Chapter 4 tests the delegation theory by applying it to a number of hypothetical case studies involving actual situations that have been considered by the ICC. Specifically, it uses scenarios that potentially involve procedural immunities to explore whether delegation of jurisdiction provides a legal basis for the ICC’s jurisdiction in different situations that could come before the Court via a State referral or Prosecutor-initiated investigation. The first case study is a hypothetical scenario in which a sitting Head of State from a non-State Party is wanted by the ICC for the commission of crimes on the territory of a State Party. Incumbent Heads of State are immune from prosecution in foreign domestic courts, which raises the question of how States Parties can be said to delegate jurisdiction to the ICC, when the exercise of such jurisdiction would be unlawful in the domestic context. The second and third case studies use the situations in Afghanistan and Palestine, each of which raises potential obstacles relating to curtailed domestic jurisdiction that could affect whether the ICC is able to lawfully prosecute nationals of non-States Parties for crimes committed on those territories.