France says it can’t arrest Netanyahu because of ICC immunity

Israel’s Prime Minister Benjamin Netanyahu is “immune” from international arrest after a warrant was issued by the International Criminal Court (ICC), France claimed on Wednesday. 

The French foreign ministry said in a statement that it is committed to international justice after judges at The Hague-based court last week issued warrants for Israel's Netanyau, as well as his former defence minister Yoav Gallant. 

The pair are accused of war crimes and crimes against humanity committed against Palestinians in Gaza since October 2023, as Israel continues its devastating onslaught on the enclave. 

France was among the first states that announced they would uphold the court's decision, although officials have not explicitly said they would arrest Netanyahu. 

However, the ministry on Wednesday alleged that Netanyahu is covered by immunity as a sitting head of government because Israel is not a member of the ICC. It is the first time a member of the court has argued this in Netanyahu's case.

France's argument was previously used by states that refused to arrest Russia's Vladimir Putin and Omar al-Bashir of Sudan. But the court has consistently rejected those arguments as unfounded.

Heads of state are not immune before the ICC, even if they belong to a state that has not signed the court's founding Rome Statute, according to previous judgements as well as the opinion of leading immunity scholars who spoke with Middle East Eye.

All 124 state parties to the Rome Statute, including all EU members, are now under a legal obligation to arrest the pair and surrender them to the court.

A trial cannot commence in absentia, and the court has no enforcement powers. States must cooperate with the court in order to enforce its decisions.

The arrest warrants are part of a war-crimes investigation on the situation in Palestine, launched in 2021 by the former ICC prosecutor. 

While Israel is not a member of the ICC, the State of Palestine was granted membership in 2015. Accordingly, the court can investigate Israeli nationals for crimes committed in occupied Palestine, which includes the Gaza Strip, the West Bank and East Jerusalem. 

It is unclear why France decided to make the announcement on Netanyahu's immunity. But Israeli media suggested that the announcement was linked to Tuesday's Israel-Lebanon ceasefire deal, which France took a leading role in despite previously angering the US and Israel over its ICC stance.

What are immunity rules under the Rome Statute?

There are different immunity rules for state officials under national and international courts.

While some may argue that Netanyahu as a serving prime minister is entitled to immunity before national courts, the rules under international courts are unequivocal in rejecting immunity for individuals under their jurisdiction. 

According to Article 27 of the Rome Statute, all wanted persons are equal before the court, including heads of a state or government. No immunities under international law may bar the court from exercising its jurisdiction. 

However, there is also a loophole that introduces an exception for officials from states that are not members of the ICC, such as Israel. 

'No international court has ever found that a head of state or high ranking individual has immunity before it, and article 27 was meant to codify that principle'

- Leila Sadat, former ICC special advisor

It stipulates that the court may not request the arrest of a non-ICC country's official if that would force a member of the ICC to act inconsistently with its international law obligations on state or diplomatic immunity. The country that official belongs to must waive their international immunity to proceed.

Leila Sadat, a leading expert on immunities and former ICC special advisor on crimes against humanity, told Middle East Eye that while Israel and its allies are expected to mount an immunity defence, ICC judgments in the past have already closed that avenue.

"No international court has ever found that a head of state or high ranking individual has immunity before it, and Article 27 was meant to codify that principle," she said.

Omar al-Bashir and Vladimir Putin

Sadat noted that the ICC Appeals Chamber's judgment of 6 May 2019 in the Bashir case clearly argued that there was no immunity at all for a head of state before an international court with jurisdiction, as opposed to a national court.

The immunity loophole found in Article 98 (1), according to the judgement, must be read in context and interpreted in a manner that is consistent with the object and purpose of the Rome Statute, meaning that it should not be read to carve out an exception to Article 27’s clear provisions.

Are Netanyahu and Gallant immune from ICC arrest warrants under international law?

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Article 98 (1) has been used in the past by states that refused to hand over Bashir and Putin, who are nationals of states not party to the ICC. 

For example, Jordan triggered it when it did not arrest Bashir in 2017, and Mongolia refused to arrest Putin when he visited the country in September, saying he enjoys immunity.

But the ICC in the two cases rejected the immunity plea as unfounded. Last month, the court ruled that Mongolia had violated the Rome Statute by failing to arrest Putin. 

In explaining its rationale, the court said the article “refers only to acts of government activities which are typically conducted abroad and are protected by the safeguards on diplomatic immunity for certain officials and buildings”.

It added that the reference to state immunity under Article 98 (1) is related to the immunity of a state and its property, not its leaders or officials.

“It is reasonable to expect the pre-trial chamber to take a similar position with regard to Netanyahu and Gallant," William Schabas, a prominent international criminal law professor and scholar, told MEE.