Paris criticized for mentioning Netanyahu’s “immunity”

(Paris) By invoking on Wednesday the “immunity” from which Israeli Prime Minister Benjamin Netanyahu, targeted by an arrest warrant from the International Criminal Court (ICC), would benefit, Paris raises numerous questions and attracts strong criticism from jurists and NGOs.

The ICC’s announcement on November 21 of arrest warrants for war crimes and crimes against humanity against Benjamin Netanyahu and his former defense minister Yoav Gallant aroused the fury of Israel, which on Wednesday appealed the Court’s decision, although it does not recognize it.

Pressed with questions to know if the Israeli leader could be arrested, France is the first and for the moment the only one of the 124 States parties to the Rome Statute to have mentioned “immunity”, when Italy or the United Kingdom immediately announced that they would respect their commitment to the ICC.

What immunity is France talking about?

Paris has been repeating for several days that France “will respect its international obligations”.

On Wednesday, the Ministry of Foreign Affairs repeated this antiphon, but invoked the obligations provided for in international law linked to “immunities of States not parties to the ICC”, which is the case of Israel. France assured that “such immunities apply to Prime Minister Netanyahu” and “will have to be taken into consideration”.

What does the ICC say?

Article 27 of the Rome Statute, which established the ICC in 1998, states that “the official capacity of head of state or government […] in no way exempts from criminal liability under this Statute.”

“Immunities or special procedural rules which may attach 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 ”, according to this text.

Article 98 of the Statute, on the other hand, introduces an exception concerning the arrest and surrender of officials from non-ICC member states, as is the case of Israel, and opens the way to interpretations.

It is on this article that the French position is based in particular.

But lawyers refer to several decisions of the ICC, including one on October 24. Seized of the refusal of Mongolia, a signatory to the Rome Statute, to arrest Russian President Vladimir Putin while he was on its territory, the Pre-Trial Chamber of the ICC reaffirmed that “personal immunity, including that of heads of state, is not enforceable before the ICC. States parties have a duty to arrest and surrender persons subject to an ICC arrest warrant, regardless of their official position or nationality.”

In 2017, the Pre-Trial Chamber rendered a similar decision concerning South Africa, a State party to the ICC, which had not arrested Sudanese President Omar al-Bashir on its territory in 2015.

“Shocking position”

For several specialists, the French position does not hold.

“There is an unambiguous legal obligation for any State party to the Rome Statute to execute ICC arrest warrants,” says Ms.^e Clémence Bectarte, specialist in international criminal law. “The obligation to the ICC takes precedence over any other obligation or consideration,” she told AFP.

Amnesty International insists on “France’s fundamental obligations as a State party to the ICC”.

For the France director of Human Rights Watch (HRW), Bénédicte Jeannerod, the French position is “deeply shocking”.

“ICC arrest warrants are not negotiable,” denounces FIDH, for whom the French decision “dangerously weakens international law.”

The Putin and al-Bashir cases

Vladimir Putin has been targeted since 2023 by an ICC arrest warrant for the war crime of deporting Ukrainian children.

Former Sudanese President Omar al-Bashir was the subject of an ICC arrest warrant in 2009 and 2010 for crimes against humanity in Darfur.

Neither Russia nor Sudan are state parties to the ICC, but France has never publicly raised the question of the immunity of these leaders.

Paris welcomed an “extremely important” decision when issuing the arrest warrant against Putin.

“France cannot have one position with Putin and another regarding Netanyahu,” said Balkees Jarrah, specialist in international justice at HRW, denouncing a “shameful à la carte policy” from Paris.