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In countries where the head of state is different from the head of government, is the former a potential target of prosecution by the International Criminal Court?

For example, if the ICC were to make prosecutions over the 2003 invasion of Iraq (unlikely, but as an example), would Elizabeth II, who is Queen of the United Kingdom, Queen of Australia, and possibly some other countries involved, be a potential target of prosecution?

As far as past prosecutions unrelated to the ICC are concerned, I'm aware of the example of WWII with regards to Japan. Hideki Tojo, head of government for much of WWII, was executed, while the Americans went out of their way not to prosecute the Emperor Hirohito (I suspect for reasons more related to politics than law).

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  • I hope this question isn't too unanswerable. Feel free to close it if it is a bad question. – Andrew Grimm Oct 11 '14 at 12:27
  • Note: I'm being quick to delete answers here that get into opinions about ICC. The question here is one of jurisdiction: Does the ICC prosecute heads of state when a government not under his or her control makes a war crime decision. – Affable Geek Oct 14 '14 at 2:09
  • I don't care what whether or not you think the ICC is good or bad, legitimate or illegitimate. The question that is answerable is very well defined. Please stay true to it. – Affable Geek Oct 14 '14 at 2:10
  • What a plot for a novel! – WS2 Feb 13 '18 at 22:19
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Any head of state of a country that has ratified the Rome Statue can in theory1 be prosecuted by the International Court of Justice. Note that prosecution can be retroactive of the time at which the country signed the statue.

The United Kingdom has ratified the statue but as most executive powers are divested to the parliament, the Prime Minister would be primary target in an instance of war crime prosecution.

1. Prosecuting international law on current or former heads of states is still very new. Is it a matter of fact, not opinion, that the ICC has to select its case load very carefully as to not scare off further ratification of their jurisdiction. Put simply, prosecution of a powerful country is not going to happen anytime soon. Equality under the law is often the last and most difficult stage of consolidating federated sovereignty.

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  • This answer should be a little bit more dry than the last one. Although you simply can't give a truly concrete answer to rare and highly circumstantial events. – LateralFractal Oct 14 '14 at 2:36
  • But it honors what was asked well :) Thank you, and +1 – Affable Geek Oct 14 '14 at 13:34

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