Abstract
Article 27 of the Rome Statute establishes that a person’s official capacity does not bar them from prosecution for international crimes. This provision asserts that an individual’s official position, even as Head of State, offers no shield from criminal responsibility under the International Criminal Court (the ICC or the Court’s) jurisdiction, despite the robust protections of Head of State immunity under customary international law. Such a rule is necessary as government structures under a Head of State’s command are often implicated in (or suspected of) these crimes. Recent arrest warrants issued against Israeli Prime Minister Benjamin Netanyahu and Russian President Vladimir Putin serve as a case in point. Nevertheless, interpretations and applications of article 27 of the Rome Statute have varied, sparking confusion over its scope and the need for a third State’s consent to waive immunity under article 98 of the Statute. At the heart of this confusion lies the debate over the drafters’ original intent: whether the article’s interpretation and application were intended to operate beyond customary international law and override the general rights of third States. This contribution examines the legal implications of the ICC’s interpretation and application of article 27, drawing on article 21 of the Rome Statute, which mandates the utilisation of the general rules of treaty interpretation in articles 31 and 32 of the Vienna Convention on the Law of Treaties (VCLT) of 1969. It finds that Head of State immunity under customary international law is irrelevant to article 27, as that norm applies only to foreign courts, not international criminal tribunals. The examination further elucidates the complex interplay between articles 27 and 98.