Why France’s argument against arresting Netanyahu doesn’t hold up

When France declared last week that Israeli Prime Minister Benjamin Netanyahu is immune from the ICC’s arrest warrant, many initially assumed the claim had a sound legal basis.

However, a quick look at the Rome Statute – the 1998 international treaty that led to the founding of the International Criminal Court – and an examination of past cases reveal that France’s argument is more of a deceitful cover to buy time and avoid arresting the Israeli PM.

Internationally renowned experts agree.

Michael Lynk, the former UN Human Rights Special Rapporteur for Palestine, points out that most international lawyers who have weighed in on the issue agree that France's position is not supported by the provisions in the Rome Statute.

“It seems extremely unusual for France, of all countries, to say that Benjamin Netanyahu has immunity as long as he is head of government with respect to this,” says Lynk, a professor of law at the University of Western Ontario.

“Certainly, that's not the position of the European Union, and it's not the position, as I understand it, of most of the European signatories to the Rome Statute,” he tells TRT World.

Why France’s claim fails

Last week, the ICC issued arrest warrants for Netanyahu and his former defence minister Yoav Gallant, accusing them of war crimes and crimes against humanity during Israel's 14-month genocidal war on Gaza.

Despite initially committing to act “in line with ICC statutes,” France later claimed it could not execute the arrest warrant, arguing that Netanyahu benefits from immunity as a sitting head of state.

In an official statement, France’s foreign ministry invoked Article 98 of the Rome Statute, which it interpreted as prioritising state immunity obligations under international law.

However, this interpretation is legally flawed as France seems to overlook a key provision of the Rome Statute.

Article 27 explicitly states that official capacity as a head of state does not exempt an individual from criminal responsibility.

“This Statute shall apply equally to all persons without any distinction based on official capacity. … 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,” it says.

In simpler terms, the ICC has jurisdiction over individuals regardless of their position, and official immunity cannot shield Netanyahu from accountability.

When asked whether this situation could “bar the court from exercising its jurisdiction,” as stated in Article 27, Lynk says that “it obviously contains a contradiction within it.”

France’s justification mirrors arguments previously made by states that refused to arrest Russian President Vladimir Putin or Sudanese President Omar al-Bashir, both subject to ICC warrants. ICC judges have consistently rejected such claims as incompatible with the Rome Statute.

Professor Lynk also points out that similar immunity arguments were not cited in other cases by France, such as the visits of al-Bashir to South Africa or Putin’s attempt to visit South Africa last year, and emphasised that Mongolia's refusal to arrest Putin earlier this year had also been criticised.

In 2019, the ICC Appeals Chamber ruled unequivocally that heads of state do not enjoy immunity before an international court with jurisdiction. This landmark decision, following Jordan’s failure to arrest al-Bashir during a 2017 visit, clarified that Article 98(1) does not override Article 27.

More recently, Mongolia declined to arrest Putin during his visit in September, citing the same immunity argument.

Yet, last month, the ICC determined that Mongolia had violated the Rome Statute by failing to act. The court affirmed that “Personal immunity, including that of Heads of State, is not opposable before the ICC, and no waiver is required.”

Jus Cogens – the highest principles

Moreover, the crimes attributed to Netanyahu violate “jus cogens norms”, the highest principles of international law.

These peremptory norms are so fundamental that they bind all states without exception and cannot be overridden by treaties or customary international law. Prohibitions against genocide, war crimes, and crimes against humanity are at the core of these binding principles.

France’s reliance on Article 98 to justify its inaction ignores this legal hierarchy.

While Article 98 addresses procedural issues related to state immunity, jus cogens norms impose a higher obligation: the duty to ensure accountability for the gravest crimes.

According to Professor Lynk, France’s position has already damaged its international reputation.

“I’m sure this is going to wind up provoking an intense debate within France. France’s image has taken a hit by saying that it can’t or won’t arrest Netanyahu as long as he is head of government.”

“And that is in defiance of, certainly, the statements coming from Josep Borrell, the outgoing head of foreign relations for the European Commission, where he said it's a responsibility of every European country to act upon that,” he adds.

France’s claim that Netanyahu’s immunity stems from Israel’s non-membership in the ICC is equally flawed.

The ICC’s jurisdiction extends to crimes committed on the territory of member states or by their nationals. Since Palestine acceded to the Rome Statute in 2015 and was recognised as a state by the ICC in 2021, the court’s jurisdiction covers territories occupied by Israel since 1967, including Gaza, the West Bank, and East Jerusalem.

Netanyahu’s actions in Gaza, therefore, fall firmly within the ICC’s ambit.