2

Factual background

(This question handles the same topic but asks different questions.)

Background: on November 22, 2024, the International Criminal Court (ICC) published arrest warrants for various individuals suspected of international law violations with respect to an ongoing conflict in Gaza/Lebanon. Such individuals include the current prime minister of Israel and members of his cabinet.

The French ministry of Foreign Affairs published today (November 27, 2024) the following statement (English translation by me, there does not seem to be an official translation at the moment):

La France respectera ses obligations internationales, étant entendu que le Statut de Rome exige une pleine coopération avec la Cour pénale internationale (CPI) et prévoit également qu’un État ne peut être tenu d’agir d’une manière incompatible avec ses obligations en vertu du droit international en ce qui concerne les immunités des États non parties à la CPI. De telles immunités s’appliquent au Premier ministre Netanyahou et aux autres ministres concernés et devront être prises en considération si la CPI devait nous demander leur arrestation et remise.

France will fulfill its international obligations, with the understanding that the Rome Statute demands full cooperation with the ICC, and also establishes that a State may not act in a manner incompatible with international law with respect to the immunity of States that are not party to the ICC. Such immunities apply to prime minister Netanyahou and other concerned ministers and must be taken into consideration if the ICC asked France to arrest and deliver them.

France is a party to the Rome Statue. Israel is not (nor is Lebanon). Palestine is, kind-of (see this footnote of the Wikipedia article for details).

Questions

What are the "immunities" described in the statement? Do they apply to specific persons (e.g. Netanyahou and high-ranking officials) or to all Israelis (or all nationals of a non-signatory state)?

Assume that somehow the French government is able (legally and practically) to arrest one of the requested persons. Is it under an obligation to do so?

(Answers for any country that is a party to the Statute of Rome are welcome.)

I am specifically not interested in:

  • the canned answer that "international law is unenforceable" (sure, but let’s assume France tries to obey it);
  • technical speculation as to whether French police forces could practically arrest any of the requested persons (assume it can easily and safely do so; for instance, suppose Netanyahou resigns all his offices, retires from politics and comes visit France on a holiday visa; he stays for an extended duration and his place of residence is published in the press)
  • political speculation as to whether France should disobey international law due to circumstances such as its interests in the Middle East, its relationship with the US or whatever (I have an adequate supply of pundit drivel in my home newspapers).

My analysis

France has a duty to cooperate with ICC investigations (under article 86 and following). The French government may dislike the ICC decisions but (as long as it has not withdrawn from the Statute as provided therein) it is still bound by them.

Therefore, in my understanding, the French government (or French courts) does not have any legal leeway to question whether the ICC has jurisdiction over specific persons, for specific facts, whether the warrants were regularly issued and so on. The French government may grumble as loudly as it wants, but its hands are tied, it must execute the warrant. In particular, the ICC has already decided (by issuing the warrants) that Netanyahou and others are not immune from prosecution.

I find this hard to square with the foreign ministry’s statement that suggests France may not enforce the warrant if certain unspecified legal circumstances arise.

Improve this question
5
  • I’m voting to close this question because it is a question about politics.
    – littleadv
    Commented Nov 27 at 17:41
  • @littleadv: It isn’t. The OP specifically states that they’re not interested in political speculation and only in the extent and legal basis of France’s legal obligations.
    – joriki
    Commented Nov 28 at 9:26
  • @joriki well, the OP answered their own question. If France has an agreement with Israel that prevents it from enforcing these warrants - then it wouldn't. French police is not the one responding to the ICC warrants - the French government is, and its decision to arrest or not arrest is... political. Say what you want - it's a question of politics, not law.
    – littleadv
    Commented Nov 28 at 9:49
  • @littleadv: As far as I’m aware, no issue of an agreement preventing the enforcement of the arrests has been raised. The French argument is that Netanyahu enjoys immunity as a head of state as a matter of international law, not by virtue of any particular agreement.
    – joriki
    Commented Nov 28 at 11:34
  • What international law? Again with that term....
    – littleadv
    Commented Nov 28 at 11:43

1 Answer 1

Reset to default
2

This is probably based on Article 98 of the Rome Statute, which says,

Article 98 Cooperation with respect to waiver of immunity and consent to surrender

  1. The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.

  2. The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender.

The US is controversially know to have at one time entered into "Bilateral Immunity Agreements" with over 100 countries, to use Article 98 to shield its troops in ICC party countries from potential ICC prosecution.

So the argument would presumably be that, if France and Israel enter into an agreement that obligates France to give immunity to Netanyahu or Israeli officials more broadly, unless Israel waives the immunity, then France can use Article 98 to not arrest them.

But there is some tension between this and Article 27, which says that being a head of government or other official is not grounds for immunity from the ICC:

Article 27 Irrelevance of official capacity

  1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.

  2. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.

The ICC has ruled that Jordan was in violation for failing to arrest Omar al-Bashir, and Mongolia was in violation for failing to arrest Vladimir Putin, despite both countries arguing that they granted immunity to the visiting head of state and Article 98(1) meant they did not have to arrest him. So I think that the ICC would similarly rule against France if it failed to arrest Neyanyahu and attempted to use Article 98(1) to justify it.

Improve this answer
8
  • 1
    Bottom line is that the non-compliance with the ICC warrants will be dealt with by the UNSC, which is a political body. France can do whatever it wants since it has a veto power on any UNSC decision.
    – littleadv
    Commented Nov 27 at 19:40
  • Note that the case of Omar al-Bashir was referred to the ICC by the Security Council and is thus slightly different. Several countries were found to be in non-compliance for failing to arrest and surrender al-Bashir, and unfortunately the various chambers differed somewhat in their legal reasoning, with some relying on the referral more and some less. The appeals chamber decision you link to is the most authoritative and unfortunately isn't very clear on whether it relies on the referral.
    – joriki
    Commented Nov 28 at 9:14
  • Four of those five judges also issued this joint concurring opinion in which they emphasize that they do rely on the referral (page 6, paragraph 10). Thus, while I personally would interpret the al-Bashir decisions in their totality to support lack of immunity even in the absence of Security Council referral, the decision of Pre-Trial Chamber II against Mongolia that you also link to is so far the only decision that definitely covers a case that’s parallel in all respects to the case against Netanyahu.
    – joriki
    Commented Nov 28 at 9:14
  • Note also that France gave a public statement of support for the ICC and the execution of its arrest warrants when Mongolia failed to arrest Putin; see The Guardian.
    – joriki
    Commented Nov 28 at 9:21
  • @littleadv: The ICC can refer non-compliant members to the ASP (the Assembly of States Parties to the Rome Statute). It can only refer them to the UNSC if the case was referred to the ICC by the UNSC, which neither the case against Netanyahu nor the case against Putin was. Mongolia’s non-compliance was referred to the ASP, and it’s likely that any non-compliance by France would also be referred to the ASP.
    – joriki
    Commented Nov 28 at 9:24

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .