Challenging the Refusal to Open a Criminal Investigation against Israeli State Officials in Poland Based on Immunities
In October 2025, REDRESS submitted an Amicus Curiae brief (available in English and Polish) to the Regional Court of Warsaw concerning the application of immunities of State officials in cases regarding international crimes. The submission aimed to clarify whether certain immunities recognised by international law that shield State officials from prosecution in foreign courts can prevent Polish prosecutors from opening an investigation into allegations of international crimes committed in Gaza. It followed the refusal of the Polish Prosecutor to initiate proceedings after a Notice of suspicion of an offence was submitted by victims in Poland.
Drawing on international standards, the brief set out the duties of States under international law to investigate and prosecute international crimes, and the implications of the rights of victims to an effective remedy in that regard. The amicus also described the relevant principles of international law relating to applicable immunities (both the personal immunity of Heads of State and the functional immunity of other State officials) and traced the evolution of limitations on immunities for international crimes that had become accepted in both State practice and norm development in recent years.
The amicus described the implications of these trends in international law for national jurisdictions considering whether to open investigations into allegations of international crimes. It concluded that there was no reason under international law why the possible existence of a procedural obstacle (such as immunities of any kind) to prosecuting one of the individual suspects named by complainants should prevent the opening of an investigation by Polish prosecutors into the crimes alleged. Moreover, two of the individual suspects named by the complainants, who were not Heads of State entitled to personal immunity, could not in any event benefit from immunity. The recognised evolution under customary international law of the non-applicability of functional immunity in the context of international crimes means that public officials are no longer protected from prosecution in foreign courts for such acts.
On 25 June 2026, the Regional Court of Warsaw issued a precedent-setting decision in the case, overturning the Prosecutor’s decision not to initiate proceedings into the alleged crimes. The Court held that the possible application of immunities does not preclude the Prosecutor from opening an investigation into the facts; the Prosecutor must distinguish between personal and functional immunities, with the former only temporarily shielding the persons benefitting from it from prosecution; and functional immunity does not apply to international crimes, because they cannot be considered “official acts.”
The decision brings survivors one step closer to accountability and sends a powerful message that immunities cannot be used to prevent investigations from international crimes – even against Heads of State.
Photo: Warsaw Regional Court via Wikimedia Commons CC BY-SA 3.0