Is Netanyahu immune from ICC arrest warrant as France claims?

On November 21, the International Criminal Court (ICC) issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu and his former defence minister, Yoav Gallant, over what it says may constitute their legal responsibility for war crimes and crimes against humanity perpetrated during Israel’s war on Gaza.

A flurry of official announcements followed from European leaders stating they would uphold the decision and meet their obligations to arrest the Israeli leader should he step foot in their territories. One notable exception is Hungary, whose leader Viktor Orban has promised not to arrest Netanyahu and has instead extended a warm invitation to visit.

Now, France has also bucked the general trend.

After initially stating that it would adhere to the ICC statutes, Paris has since suggested that Netanyahu enjoys immunity from the arrest warrants as Israel is “not a party to the ICC”.

“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,” a statement by the French Ministry for Europe and Foreign Affairs read.

But does France’s stance hold up legally? Here is what you need to know about the ICC arrest warrants:

Is Netanyahu immune from the ICC arrest warrants as France claims?

No.

Article 27 of the Rome Statute, which established the court, states its rulings “apply equally to all persons without any distinction based on official capacity” and “in no case exempt a person from criminal responsibility”.

France has a duty to cooperate with the court under the Rome statute of the ICC, and “that duty of cooperation extends to giving effect to arrest warrants”, Yasmine Ahmed, the UK director of Human Rights Watch, told Al Jazeera.

So, why is France arguing for Netanyahu’s immunity?

The French argument appears to centre around article 98 of the Rome Statute, which states that a country may not “act inconsistently with its obligations under international law with respect to the … diplomatic immunity of a person … of a third State”.

Some 124 countries have ratified the Rome Statute, but Israel is not a signatory.

William Schabas, a professor of international law at Middlesex University, told Al Jazeera that France’s stance could once have been a “plausible argument”, but the court has already cleared up the ambiguity created by article 98 regarding non-ICC members in a 2019 Appeals Chamber ruling.

That case concerned the outstanding arrest warrant for Sudan’s former President Omar al-Bashir. Like Israel, Sudan is not a party to the Rome Statute. The court concluded, however, that there is no head of state immunity under customary international law – third party or not.

That means France is under a legal obligation to follow what the ICC has decided regarding the Israeli prime minister “even if it does not agree with it”, Schabas said.

He warned that France, by suggesting it may not uphold the ICC ruling, is suggesting “that a state can defy the judgements of the court” and signals a “worrying” development for the members of the international criminal tribunal.

[Al Jazeera] If France considers Netanyahu immune, what does it think about Putin?

In March 2023, the ICC issued an arrest warrant for Russian President Vladimir Putin over alleged war crimes in Ukraine.

The French government welcomed the move, with the Foreign Ministry issuing a statement saying “no one… regardless of their status, should escape justice.”

The ICC also ruled that Mongolia had violated its obligations as a member of the court for failing to arrest the Russian president during an official visit in August this year.

After the ruling, the French ministry stated in a news briefing that “each State party to the Rome Statute has an obligation to cooperate with the ICC and execute the arrest warrants it issues, in accordance with the relevant provisions of the Rome Statute”.

Schabas said the contrast in how France has responded to the arrest warrants for Putin and Netanyahu has revealed “double standards”.

He noted that it demonstrates that the French argument is not based on a “legal principle” but rather on who Paris considers a friend and who it regards as an enemy.

France’s “selective interpretation” of the Rome Statue sets a worrying precedent, Ahmed told Al Jazeera.

“It undermines the very purpose of the ICC … which was to ensure that there is no impunity, and there is accountability for the most serious crimes,” she said.

Russian President Vladimir Putin, on the red carpet left, walks next to Mongolian Foreign Minister of Mongolia, Batmunkh Battsetseg, upon his arrival at Ulaanbaatar’s International airport Chinggis Khaan, September 2, 2024 [Natalia Gubernatorova/Sputnik/Kremlin Pool/AP] So does this mean Netanyahu can travel to France?

It is unlikely that Netanyahu would visit the country because it remains unclear whether he would be arrested.

Schabas said that despite the uncertainty the French government has created with its latest statement, the decision about whether to implement the arrest warrant ultimately resides with the French courts.

He noted that as long as Netanyahu remains a head of state, any trip to France would be an official visit, and the government is very unlikely to invite him, given that the courts could still rule that his arrest warrant is valid.