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It is well accepted in international law that Heads of State, Heads of Government and ministers of Foreign Affairs enjoy immunity from prosecution by virtue of the office that they hold. This immunity extends to acts committed in an official capacity whilst in office, after they have left office. In recent years, however, this concept of functional immunity has been challenged by allegations that former government officials have committed international crimes whilst in office. In what has been hailed as a ‘landmark’ decision, the Federal Criminal Court of Switzerland considered that the former Algerian Minister of Defence, who is charged with having committed war crimes and torture whilst in office in 1992-1993, is not entitled to immunity before the Swiss courts. In reaching this conclusion, the Court considered that it would be contrary for international law to prohibit genocide, war crimes and crimes against humanity as fundamental norms but then to allow for a broad interpretation of functional immunity the result of which would be that beneficiaries of this immunity would be immune from prosecution even where they allegedly committed such crimes. 

Akhmed Zakaev was an envoy of the Chechen President Aslan Maskhadov. Zakaev was arrested in the UK in 2002 and his extradition was requested by the Russian Federation. The Russian Federation alleged that during the First Chechen War (1994-1996), Zakaev committed murder, wounding, false imprisonment (imprisonment not made in accordance with the law), and conspiring. On 13 November 2003, the Bow Street Magistrates' Court declined to extradite Zakaev because the Court feared he would be subjected to torture and would not receive a fair trial if he would be brought back to the Russian Federation.

The President of Indonesia, Susilo Bambang Yudhoyono, had planned a visit to the Netherlands from 6 to 8 October 2010. The government in exile of the Republic of South Moluccas (RMS) filed a complaint in the Netherlands and requested the Indonesian President to be arrested upon arrival in the Netherlands, and furthermore, that he would be prosecuted for human rights violations committed against Moluccan detainees.

On 14 October 2010, the District Court of The Hague dismissed the case because President Yudhoyono as head of state could not be prosecuted (head of state immunity).

On 22 November 2011, the Court of Appeal upheld the decision.

On 4 November 2005, a complaint was filed before the U.S. District Court for the District of Columbia on behalf of people injured or killed during the bombing of the UN compound (an area protected by the UN) in Qana on 18 April 1996 that killed more than 100 civilians and wounding hundreds. The plaintiffs claimed that General Moshe Ya’alon, the head of the IDF Army Intelligence who launched the bombing, should be held responsible for the decision to bomb the UN compound.

On 14 December 2006, the District Court dismissed the case, finding that Ya'alon could not be sued because the Court lacked jurisdiction to prosecute Ya’alon (as he enjoyed immunity under the Foreign Sovereign Immunities Act) and denied the need for jurisdictional discovery.

On 15 February 2008, the U.S. Court of Appeals for the District of Columbia Circuit upheld the decision of the District Court.