Drawing by Nathaniel St. Clair
The comity of nations, at least when it comes to international humanitarian law, took a rather curious turn with the announcement by France that it would regard Israeli Prime Minister Benjamin Netanyahu’s immunity as unimpeachable even before an arrest warrant approved by the International Criminal Court. This view was expressed despite France claiming to be a strong proponent of the ICC and international law.
On November 27, Foreign Minister Jean-Noël Barrot had mooted the point on Franceinfo radio that France, while being “very committed to international justice and will apply international law based on its obligations to cooperate with the ICC” had to still consider the limits of the Court’s own statute, which “deals with questions of immunities for certain leaders.” Giving himself room to exit a potential legal tangle, he merely left it up to “the judicial authorities to decide”.
The central reason for not cooperating with the ICC on this point centres on the play of Articles 27 and 98 of the Rome Statute. The former makes it clear that, “Immunities or special procedural rules which may attach to the official capacity of a person […] shall not bar the Court from exercising its jurisdiction.” The provisions of the latter prevent the Court from proceeding with a request for surrender or assistance requiring 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 cooperation had been obtained from that third state for a waiver of the immunity.
A statement from France’s Foreign Minister merely served to show that the warrant’s effectualness should be gauged by whether Israel was a member of the Rome Statute, an interpretation as disingenuous as it was inaccurate. “A state cannot be held to act in a way that is incompatible with its obligations in terms of international law with regards to immunities granted to states which are not party to the ICC.” It followed that Netanyahu and his ministers had the necessary immunities “and must be taken into consideration should the ICC ask us to arrest them and hand them over.”
Rather shoddy lip service to a proud legal and political tradition supposedly shared by Israel and France follows. Both shared a “long-standing friendship”. Both were “democracies committed to the rule of law”. Both showed “respect for a professional and independent justice system”. These were remarkable observations, given the provisional measuresand opinions issued by the International Court of Justice about Israel’s operations in the Gaza Strip and, more broadly, the Occupied Territories.
These include the genuine risk that genocide is taking place in Gaza (the case begun by South Africa is ongoing), the deprivation of necessities, instances of famine and starvation, and the illegal status of the settlements that involve laws and practices of dispossession and separation constituting racial discrimination and apartheid. And what are we to make of Netanyahu’s authoritarian attack on Israel’s judicial system itself, intended to give more free rein to executive power?
The French approach waters down the effect of the warrants by effectively rejecting ICC jurisdiction over Israel’s officials and commanders, despite the court’s own finding that it had jurisdiction by virtue of Israel’s operations on Palestinian territory and the accession to the Rome Treaty by the Palestinians. This did not impress the International Federation for Human Rights (FIDH) and its French member organisation, the Ligue des droits de l’Homme (LDH), which emphasised the importance of Article 27. Suspicion about the effectiveness of international law, according to Nathalie Tehio, President of the LDH, “dangerously undermines it at a time when it is urgently needed.”
Relevantly, Tehio noted that no arguments of any equivalent immunity had ever been raised regarding the ICC warrant for Russian President Vladimir Putin, despite Russia not being a party to the Rome Statute. This revealed a “double standard” that damaged France’s reputation, “particularly in relation to the countries of the South.”
Other countries in the European Union are also flirting with the idea that arresting Netanyahu would simply not be advisable, adopting various slippery arguments. Italy’s Foreign Minister Antonio Tajani rather missed the point in suggesting that the warrant was not feasible as the Israeli PM would “never go to a country where he can be arrested.” (His colleague, Defence Minister Guido Crosetto, disagreed.) With this muddled reading of international justice, Tajani went on to declare that arresting Netanyahu was “unfeasible, at least as long as he is prime minister.” A closer reading of the Rome Statute would have put Tajani’s dim doubts to rest.
The issue of executing warrants for high-ranking leaders and commanders accused of violating international humanitarian law comes down to sometimes tawdry political calculation over diligent legal observance. France has merely confirmed this state of affairs, following previous approaches taken by Mongolia (towards Putin) and South Africa (towards Omar al-Bashir). Having been one of the key negotiating parties behind the fragile ceasefire between Israel and Hezbollah that commenced on November 27, Emmanuel Macron and his diplomatic team will not miss out on posterity’s calling. As the ministry statement promises, “France intends to continue to work in close collaboration with Prime Minister Netanyahu and other Israeli authorities to achieve peace and security in the Middle East.”
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