Immunities are often invoked to shield suspected perpetrators of international crimes from accountability. Among these are personal immunities, which are only available to Heads of State and a few top officials and last only as long as they are in office; and functional immunities – available to all State officials but only for acts done as part of official functions, and which continue even after leaving office.
As the UN International Law Commission was meeting in Geneva this summer to finalise their drafting work – confirming that functional immunity of State officials do not prevent their criminal prosecution in foreign courts for international crimes – the Regional Court of Warsaw issued a precedent-setting decision that deals with immunities of Israeli officials before Polish courts in relation to crimes committed in Gaza.
The decision is in line with similar decisions that had been adopted decades earlier by the Supreme National Tribunal (SNT) that operated in Poland between 1946 and 1948. In trials against several high-ranking Nazi perpetrators, the SNT had recognised that State officials could not benefit from functional immunity for war crimes, genocide and crimes against peace. However, this is the first time that this reasoning has been applied by a Polish court in relation to crimes committed in Gaza, highlighting that functional immunity cannot apply in such cases, regardless of the context.
The complaint against three top Israeli officials
The case before the Regional Court of Warsaw related to alleged violations of international law committed in connection with the Israeli blockade of the Gaza Strip since 2007, the Israeli offensive on the Gaza Strip in 2014, and the military campaign carried out by Israel since October 2023. Three Polish-Palestinians nationals – including Waleed Abumuammar and Ahmed Elfastawi, with the support of the Polish-Palestinian Initiative “Kaktus” (the third plaintiff does not wish to be named) – filed a Notice of suspicion of commission of an offence with the Office of the Public Prosecutor General on 20 January 2025, naming the individuals who they alleged to be responsible for the crimes described as Benjamin Netanyahu, Yoav Gallant, and Yoav Kisch – the Prime Minister, the Minister of Defence, and the Minister of Education of Israel, respectively. The crimes alleged in the Notice include crimes against humanity of murder, persecution, and other inhumane acts, and the war crimes of starvation and directing attacks against a civilian population, as a result of which two of the complainants had lost family members.
The Notice was filed days before the scheduled visit of Yoav Kisch to Poland, to attend a public ceremony marking the anniversary of the liberation of Auschwitz. As described in the Notice, Yoav Kisch allegedly committed war crimes in Gaza during his military service as an Israeli Defence Forces fighter pilot, before he assumed an official position in the Israeli government.
The Prosecutor initially refused to open an investigation on the grounds that the named individuals were shielded from prosecution before Polish criminal courts by applicable immunities under international law. The three injured parties submitted a complaint challenging this refusal. Our organisation Redress submitted written observations to the Court as amicus curiae.
In a decision of 25 June 2026, the Regional Court of Warsaw upheld the appeal against the decision of the Prosecutor and overturned his decision of 8 May 2025, paving the way for the survivors in the case to continue their efforts to obtain redress and accountability.
In its decision, the Court explicitly recognised that any potential procedural obstacle that immunities of specific individuals might represent cannot justify a refusal to initiate proceedings. The Court also directed the Prosecutor to distinguish between personal and functional immunities of State officials, with the latter not applicable in cases relating to core international crimes. This approach is in line with the position of the Polish Government, which has previously expressed strong support for the position of the UN International Law Commission on immunity of State officials from foreign criminal jurisdiction, i.e that functional immunity is not applicable to international crimes.
Potential immunities cannot prevent investigating the case
In its decision, the Court acknowledged that while the issue of immunity is complex and does represent a potential procedural obstacle down the line, this does not make it impossible to conduct an investigation into the crimes alleged. According to the Court, the Prosecutor has an initial obligation to determine whether there is a justified suspicion that an offence has been committed; to identify acts that may constitute crimes and to determine their legal qualification. Only at later stages will the Prosecutor have to verify whether such acts have taken place, who may be responsible, what the scope of the harm is, and whether procedural obstacles such as immunities may exist as regards certain suspects.
In addition, the fact that the plaintiffs had named specific individuals in the complaint does not bind the Prosecutor as to the scope of potential suspects in the case. The Court stressed that this principle is particularly important in cases concerning international crimes, where such acts may “extend over long periods of time and be associated with the activities of military, administrative, or political structures”. This is especially true, the Court said, as regards crimes that form part of a broader State policy or practice, as was alleged in this case, rather than being isolated events. “The Prosecutor failed to explain why any procedural obstacle affecting those individuals, if such an obstacle indeed exists, would extend to the entirety of the potential proceedings, all possible participants in the events, all decision-making and implementation mechanisms, and all of the consequences described as having affected Polish citizens,” the Court concluded.
There are limits to personal immunity
The Court also said it was necessary to consider the nature of the immunity involved, its temporal scope, its material scope, and its consequences for these proceedings. The Prosecutor should have drawn a distinction between the personal immunity of a serving head of government (Mr Netanyahu) and the functional immunity applicable to other State officials such as minister, acting or former (Mr Gallant and Mr Kisch). Conduct allegedly amounting to international crimes could not, the Court held, be qualified as the exercise of official functions.
The Court stated that the personal immunity that applies to a serving head of State or government is procedural in nature – while it may temporarily preclude the exercise of jurisdiction by foreign domestic courts, it does not eliminate criminal liability as such or preclude jurisdiction forever. It is also limited to the period in office, as it serves to ensure the uninterrupted performance of government functions. Although Benjamin Netanyahu cannot currently be held criminally liable before a Polish court, upon leaving office personal immunity will no longer apply, opening the possibility of proceedings under Poland’s Criminal Code.
This position of the Regional Court of Warsaw follows in the footsteps of the French Cour de Cassation, which, in a decision in the case of former Syrian President Bashar al-Assad issued on 25 July 2025, recognised that while customary international law does not allow an exception to the personal immunity of a sitting foreign head of State, immunity does not equate to impunity, and such immunity could not prevent the prosecution of former heads of State or government for their participation in war crimes and crimes against humanity.
Not every act by a State official is protected
With regard to the functional immunity that may be enjoyed by Yoav Gallant and Yoav Kisch as State officials who are not heads of State or government or foreign minister, the Court concluded that its potential application requires a determination “whether the conduct in question may properly be regarded as an official act protected under international law”. Consequently, the Prosecutor has an obligation to examine the nature of the alleged conduct and its connection with the position and office held.
In cases concerning international crimes, the Court said, it cannot be automatically assumed that every action by a State official constitutes an official act that is not subject to the jurisdiction of foreign domestic courts. The Prosecutor must assess whether the alleged conduct can be characterised as official acts under international law and what significance the nature of the alleged crimes has on the scope of functional immunity. In relation to Yoav Kisch, the Court found that “it was insufficient to state that statements concerning state policy in the context of military operations were closely connected with the performance of a public function. [...] It was necessary to examine the content, context, addressees and purpose of those statements and only on that basis determine whether they may be regarded as conduct covered by functional immunity, which protects Y. Kisch before the courts of other States exclusively with respect to official acts performed on behalf of the State.” The Court concluded that such an assessment was not carried out to a degree that would justify a refusal to initiate an investigation.
Finally, according to the Court, incitement to genocide or war crimes can never be regarded as statements made as part of the lawful official functions of a State official, because incitement to genocide or other international crimes never falls within the official duties of a Minister of Education. Consequently, the Court concluded that functional immunity should not be available in respect of such statements.
New prospects for universal jurisdiction in Poland
Finally, the Court dismissed the argument made by the Prosecutor that the International Criminal Court (ICC) is the body that is competent to deal with the individuals named in the notice, because of “its greater technical capacity to conduct proceedings of broad geographical scope,” as the prosecutor claimed. The Court recalled that the jurisdiction of the ICC is complementary to that of national jurisdictions, and “the mere fact that the Court has taken an interest in a matter or has even issued arrest warrants in respect of certain individuals, does not relieve domestic authorities of their duty to examine whether grounds exist for Polish jurisdiction”.
Following the decision of the Regional Court of Warsaw, the Prosecutor will now have to conduct an assessment of the admissibility of the case and whether there are grounds to open an investigation. Among other steps ordered by the Court, the Prosecutor will need to conduct a separate analysis of the nature and consequences of any immunities that may apply to each of the individuals named in the complaint.
Coming at a time when reform of the country’s legislation on universal jurisdiction is being debated in Poland, spearheaded by the country’s leading civil society organisations, this decision sets a positive precedent and signals a growing willingness to translate the country’s long-standing commitment to accountability for international crimes into a reality in its own courts. This case was filed by Polish victims. The same reasoning will, no doubt, apply to any ongoing or future proceedings for international crimes in Poland based on universal or other forms of extraterritorial jurisdiction, when both victims and suspects are foreign nationals.
Katya Ravinska is a legal officer at Redress, where she works on international justice and victims' rights. She holds a master's degree in human rights and humanitarian action from Sciences Po, Paris.
Fiona McKay is a international criminal law and human rights practitioner. Now an independent consultant, she previously worked for civil society organisations, including Redress, and at the International Criminal Court.
Julie Bardèche is a senior legal advisor at Redress. She practised as a criminal and human rights law attorney in France for two years and served for five years as legal officer and investigator before the Extraordinary Chambers in the Courts of Cambodia.
