“France’s position is both legally false and politically disastrous”

Ln November 22, the International Criminal Court (ICC) approved the issuance of arrest warrants for Benjamin Netanyahu, the current prime minister of Israel, Yoav Gallant, former minister of defense of Israel, and Mohammed Deif, leader of the armed wing of Hamas, for acts qualified war crimes and crimes against humanity. It now belongs to the 125 States parties to the Rome Statute [reconnaissant la juridiction de la CPI] to respect their obligations to the ICC, by arresting wanted persons and handing them over to the Court.

However, in a press release dated November 27, French diplomacy, while recognizing the requirement for cooperation with the ICC, considered that the Rome Statute provided that a State could not be “required to act in a manner inconsistent with its obligations under international law with respect to the immunities of States not parties to the ICC”.

In other words, France maintains that the arrest warrants issued against Benjamin Netanyahu and Yoav Gallant could not be executed by it because of the immunities from which they would benefit as members of a government of a State that does not recognize not the ICC. This position is both legally false and politically disastrous with regard to international humanitarian law and the fight against impunity.

Recent decline

Heads of State, government and ministers of foreign affairs in office certainly benefit from personal immunity, which protects them in principle against any prosecution before foreign national criminal courts. This is a general principle of international law which has its source in customary law and was affirmed by the International Court of Justice, in a judgment of February 14, 2002.

In application of these immunities, the Court of Cassation had, for example, ruled, in 2020, that it was impossible to prosecute Abdel Fattah Al-Sissi, President of the Republic of Egypt, in France for acts classified as torture and acts of barbarism. However, we note a recent decline in this jurisprudence concerning the prosecution of the most serious crimes, with the French justice system having issued, in June, an arrest warrant against the Syrian President, Bashar Al-Assad, for complicity in war crimes and crimes against humanity.

The Court of Cassation has yet to rule on the validity of this mandate. But it is already certain that these immunities fall before an international criminal jurisdiction such as the ICC. Article 27 of the Rome Statute thus establishes the principle that “the immunities (…) which may relate to the official capacity of a person, under domestic law or international law, do not prevent the Court from exercising its jurisdiction over that person.. The ICC was established precisely to derogate from international immunities and prosecute and try those bearing the heaviest responsibility for the commission of the most serious crimes, which are, by their nature, attached to the exercise of power.

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