The Cross : How do you react to France's announcement of the possible immunity granted to Benjamin Netanyahu?
Reed Brody : This is a huge disappointment, a despicable capitulation: France is undermining the International Criminal Court (ICC), an institution it worked hard to help create, at a time when its support is most needed. If states do not cooperate with the ICC as it seeks to bring leaders to justice for the worst international crimes, what is the point of the whole enterprise?
France invokes the Rome Statute to argue that immunity applies to heads of state whose countries are not signatories to the ICC. What do you say?
R. B. : This is an interpretation in total contradiction with the support that France gave to the arrest warrant issued by the ICC against Vladimir Putin, whose country, like Israel, does not recognize the ICC either. In September, France publicly regretted that Mongolia, a state party to the ICC, had not arrested Putin during his trip to Ulaanbaatar. The ICC – and international justice more generally – is dying under the weight of “double standards”.
France's declaration, especially if followed by other countries less committed to the principles of universal human rights, could well add a nail to its coffin.
In your opinion, France's position would therefore be illegal?
R. B. : I note that this is not exactly a “decision” expressed by France, but rather a declaration proposing an absolutely erroneous interpretation of the Rome Statute. ICC judges have ruled in several cases, most recently after Mongolia failed to arrest Vladimir Putin, that when a state arrests a suspect with the aim of transferring him to the court, traditional immunity for leaders of State before the “domestic jurisdiction” of another State does not apply.
In the opinion of the Chamber, the personal immunity of officials, including heads of third States, is therefore not enforceable in proceedings before the Court. The principle set out in Article 27 of the Rome Statute means that a Member State would not act “in a manner inconsistent with its obligations under international law” by arresting and surrendering representatives of the ICC to the ICC. State, including heads of State, whatever their nationality, when the Court considers that it has jurisdiction.
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