Julian Borger
The Guardian / November 27, 2024
Claim comes after Paris signalled it would fulfil obligations as signatory to Rome statute after arrest warrant issued.
The French government has claimed that Benjamin Netanyahu has immunity from arrest warrants issued by the international criminal court for war crimes on the grounds that Israel is not an ICC member.
The claim came soon after Netanyahu’s cabinet agreed to a French-backed ceasefire in Lebanon and is in contrast to Paris’s attitude towards last year’s ICC war crimes warrant issued against Vladimir Putin, another leader of a non-member country.
After the court issued arrest warrants for Netanyahu and his former defence minister, Yoav Gallant, on Friday, France initially signalled that it would fulfil its obligations as a signatory to the Rome statute, the ICC’s founding document, if either visited the country.
However, on Wednesday, the French foreign ministry appeared to change its tone and claimed Netanyahu had immunity because Israel was not signatory to the statute.
“A state cannot be held to act in a way that is incompatible with its obligations in terms of international law with regard to immunities granted to states which are not party to the ICC,” the French statement said.
“Such immunities apply to prime minister Netanyahu and other ministers in question, and must be taken into consideration should the ICC ask us to arrest them and hand them over.”
Israel has informed the ICC that it intends to appeal the arrest warrants, which it described as “baseless” and “without any factual or legal foundation”, according to a statement issued by Netanyahu’s office on Wednesday.
“Should the ICC reject the appeal, this will underscore to Israel’s friends in the US and around the world how biased the ICC is against the State of Israel,” the statement said.
The French argument appeared to be a reference to article 98 of the Rome statute which states a country cannot “act inconsistently with its obligations under international law with respect to the … diplomatic immunity of a person”. However, article 27 of the statute says that the immunity of high office “shall not bar the court from exercising its jurisdiction over such a person”.
The ICC ruled in 2019 that article 98 was not a “fountain of immunity” but rather a “procedural rule” that guided how the court should ask for a warrant to be carried out. The court ruled last month that Mongolia had violated its obligations as a party to the ICC by failing to arrest Putin when he visited the country in August, and that article 98 did not provide immunity from the war crimes charges against the Russian leader.
The French foreign ministry at the time said it gave full support to the ICC, “true to [France’s] longstanding commitment to combat impunity”.
“The French government’s legal position now with respect to Netanyahu is inconsistent as compared to its position just a few months ago with respect to Putin,” Milena Sterio, a professor at the Cleveland State University College of Law, said. “It is possible that the French government is softening its view vis-a-vis Israel/Netanyahu in order to maintain working ties with the Israeli government, and in order to be in a position to continue to mediate between Israel and Lebanese-based Hezbollah.”
Amnesty International France said the French position on Netanyahu “runs counter to France’s fundamental obligations as a member state of the ICC”.
“A cornerstone principle of the ICC statute is that no one is above the law, including heads of state sought for arrest, such as Vladimir Putin or Benjamin Netanyahu,” the human rights group said. “This has been confirmed in a decision by the court’s appeals chamber in jurisprudence which is binding on all member states.”
David Lammy, the UK foreign secretary, said he would continue to engage with Netanyahu despite the arrest warrant but added he was under an “obligation” to refer the Israeli leader to the domestic court system if he came to the UK.
“Should those named seek to come into our country that doesn’t allow me any discretion, I will issue that, transmit that to the courts, and then the courts will make their determination under our law,” Lammy told parliament’s foreign affairs committee.
Julian Borger is the Guardian’s senior international correspondent based in London
