France’s Convoluted and Contradictory ICC Immunity Position

On Nov. 21, the Pre-Trial Chamber of the International Criminal Court (ICC) issued warrants for Israeli Prime Minister Benjamin Netanyahu, former Israeli Defense Minister Yoav Gallant, and Hamas commander Mohammed Diab Ibrahim Al-Masri, also known as Deif. 

Few people expect to see any of the three men in the dock at The Hague anytime soon. For one, it’s likely Deif is already dead. (Israel reports that it killed Deif in an airstrike, though Hamas denies it.) And probably even fewer people think the warrants themselves will end the conflict. But that doesn’t mean the warrants have no effect at all. As Chimène Keitner wrote in Lawfare, “The warrants will not prompt Israel to suspend its military campaign, nor will they force Hamas and other groups to release the remaining hostages. They will, however, make Netanyahu and Gallant (and any other individuals potentially subject to charges) think twice before traveling to countries that are parties to the Rome Statute.” 

Article 89 of the Rome Statute maintains that its 125 states parties “shall, in accordance with the provisions of this Part and the procedure under their national law, comply with requests for arrest and surrender.” But given recent suggestions from the French foreign ministry that Netanyahu “and the other ministers concerned” are immune from arrest, these “fugitives from the international rule of law” may feel a bit better about landing at Paris Charles de Gaulle in the near future.

France is not the only state party to the Rome Statute equivocating on its obligation to arrest Netanyahu. Rebecca Ingber, who is mapping ongoing state reactions to the Netanyahu and Gallant arrest warrants at Just Security, lists several other states parties who are “non-committal” on the question of compliance. “We support the ICC, while always remembering that the court must play a legal role and not a political role,” said Italian Foreign Minister Antonio Tajani, who promised to “evaluate together with our allies what to do and how to interpret this decision.” Swedish Foreign Minister Maria Malmer Stenergard simply said her country “supports the important work of the court and safeguard its independence and integrity.” Foreign Minister Margus Tsahkna said Estonia “takes note of the arrest warrants” but mentioned that “[a]t the same time, we are sceptical [sic] they’ll contribute to a lasting peace in the Middle East.” 

Though it’s not alone, France seemed to set itself apart from other noncommittal countries with its invocation of immunity, a move that may only serve to further erode the legitimacy of an embattled court and its controversial prosecutor.

“The suggestion that an international criminal court may not exercise jurisdiction over a national of a state that is not party to the treaty that established the court is a faulty view based on an inchoate understanding of international law by those who see no scope for it beyond treaties,” former ICC President Chile Eboe-Osuji recently wrote in Lawfare. Eboe-Osuji backs up his argument with a historical look at the customary norm of international law that “entails the right of states to exact punishment or impose sanctions on those who violate the legal norms that seek to protect and preserve the individual members of the community of nations and the community itself,” as well as the “right of states to punish violations of preserval international legal norms” through methods other than war, including the Nuremberg and Tokyo tribunals. 

Recent ICC rulings, and France’s own position on other ICC arrest warrants of heads of states not party to the Rome Statute, would also support Eboe-Osuji’s characterization of France’s immunity position as “fundamentally mistaken.” 

The Evolution of France’s Immunity View

The Guardian reported that 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.” But at a news conference following the issuance of warrants on Nov. 21, Foreign Ministry spokesman Christophe Lemoine muddied the water when he called the question of whether France would arrest Netanyahu if the Israeli prime minister traveled to his country a “legally complex” one, and declined to comment on it further. 

Then, less than a week later, France’s foreign ministry put out the following statement: 

France will comply with its international obligations, it being understood that the Rome Statute demands full cooperation with the International Criminal Court (ICC) and also stipulates that a State cannot be required to act inconsistently with its obligations under international law with respect to the immunities of States not party to the ICC. Such immunities apply to Prime Minister Netanyahu and the other ministers concerned and will have to be taken into account should the ICC request of us their arrest and surrender.

In accordance with the long-standing friendship between France and Israel, two democracies committed to the rule of law and to respect for a professional and independent justice system, France intends to continue working in close cooperation with Prime Minister Netanyahu and the other Israeli authorities to achieve peace and security for all in the Middle East.

The short statement seems to suggest that France does not view its Article 89 obligation to comply with requests for arrest and surrender as applicable to Netanyahu, because he leads a country that is not a signatory to the Rome Statute. Though still somewhat ambiguous, the new position appears to draw on Article 98(I), “Cooperation with respect to waiver of immunity and consent to surrender,” which reads:

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.

In other words, according to Article 98(I), the ICC cannot compel one of its members to violate national or international legal obligations on state or diplomatic immunity by arresting an official from a country not party to the Rome Statute. To be clear, at the time of writing, France’s government has not fully committed to arresting Netanyahu on its soil, but neither has it announced a clear intention to ignore the warrant. 

A refusal to execute Netanyahu’s arrest warrant would represent a volte-face in France’s position on immunity it affirmed last time the ICC issued an arrest warrant for a sitting head of state not party to the Rome Statute. “No one responsible for crimes committed by Russia in Ukraine, regardless of their status, should escape justice,” the French foreign ministry tweeted in March 2023, following the ICC’s decision to issue an arrest warrant for Russian President Vladimir Putin. And when Putin planned to attend a ceremony in Ulaanbaatar six months later, the French foreign ministry issued a statement a day before the Russian president’s visit reminding Mongolia of its “obligation to cooperate with the International Criminal Court and execute the arrest warrants it issues” and promised to “continue to lend its support to the essential work of the international courts to ensure that those responsible for all the crimes committed by Russia in Ukraine are held accountable.” 

Keitner suggested to me that, in light of France’s seemingly contradictory views, “One possible approach is to view this as a situation of conflicting obligations.” Though Article 98(1) establishes France’s treaty-based obligation to cooperate with ICC arrest warrants, France could still argue that it has a conflicting obligation toward Israel to respect its prime minister’s status-based immunity. The article’s wording seems to place the obligation to seek consent and cooperation from the non-party state on the court itself, not on states parties. Another possible explanation for France’s seemingly contradictory views could be that different organs of the French state might take different approaches—at least one French court has said then-Syrian President Bashar al-Assad wouldn’t have status-based immunity, even while he was a sitting head of state.

The ICC itself will likely find that France is under a treaty obligation to arrest and surrender any individual. But unfortunately the reasoning underlying such a ruling will not necessarily resolve the question of France’s bilateral obligation to Israel. Unlike the Bashir situation, in which a UN Security Council referral arguably had the effect of vitiating immunities even for non-ICC member states who are UN members, the Netanyahu warrant presents France with a trickier situation for those who viewed the ICC as constrained by the limits of state consent.

A Brief History of ICC Arrest Warrant Non-Compliance 

Non-compliance with the Netanyahu arrest warrant would represent more than a reversal of France’s previous position. Several legal experts argue that such a move would also contravene Article 27 of the Rome Statute, “Irrelevance of official capacity,” which stipulates that the statute “shall apply equally to all persons without any distinction based on official capacity,” noting in particular “official capacity as a Head of State or Government … shall in no case exempt a person from criminal responsibility.” The article’s second clause further establishes that “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.”

It would not, however, be the first time a Rome Statute party did not comply with an arrest warrant. As Keitner recently pointed out in Lawfare, South Africa failed to arrest Sudanese President Omar al-Bashir in 2015. Jordan didn’t comply with that warrant either when Bashir attended the League of Arab States’ Summit on its territory in 2017. And, despite France’s strong statement urging otherwise, Mongolia ignored Putin’s warrant in 2023. 

But these instances of non-compliance only strengthened and clarified states’ obligations to execute ICC arrest warrants irrespective of official capacity and Rome Statute signatory status. In its 2019 ruling on Jordan’s non-compliance, the judges of the ICC’s appeals chamber found that Article 98(1) is merely a “procedural rule,” one that “does not itself stipulate, recognise or preserve any immunities.” The judges further held that “article 27(2) of the Statute prevents any reliance on Head of State immunity both vertically in the State Parties’ relationship with the Court and horizontally in the relationship between States Parties when cooperation is sought by the Court” and, therefore, “article 98(1) of the Statute is not in its own right a fountain of immunity.” And in a recent ruling from October, the ICC’s Pre-Trial Chamber II found that Mongolia’s non-compliance was “preventing the Court from exercising its functions and powers within the meaning of article 87(7) of the Statute.” The judges wrote that their reasoning stems from “a systematic interpretation of the Statute that article 98 does not and could not undermine the fundamental principles codified in article 27, on which the entire Court’s system stands,” and that “article 98(1) neither supplements, modifies, nor provides exceptions to article 27(2)” and any “other interpretation would fatally render the obligations of States Parties senseless and the overall Court’s system futile.”

France’s ping-ponging between immunity positions comes on the heels of the confused actions of another state party, South Africa. Following the issuance of an ICC warrant for his arrest, Putin planned to visit the BRICS summit in Johannesburg slated for August 2023, setting up what some dubbed as South Africa’s “Putin Problem.” South African President Cyril Ramaphosa made headlines when a statement of his from a court filing came to light, in which he said under oath that “Russia has made it clear that arresting its sitting President would be a declaration of war.” This signaled to some an intention by South Africa not to honor the arrest warrant, possibly reflecting a position close to France’s recent statement. However, as a member of the opposition party known as the Democratic Alliance said in a confidential replying affidavit in the same case, Ramaphosa did not make an immunity argument with regard to Putin. The Democratic Alliance member said: 

What is most telling about the President’s affidavit is that he never claims that President Putin is entitled to immunity from arrest and surrender to the ICC under either domestic or international law. All the defences seek to poke holes in the way the DA has brought the case, rather than to assert that, if President Putin arrives, the Government is entitled to refuse to arrest him. Yet at the same time, the President never clearly states that, if President Putin arrives, he will be arrested. Instead, he skirts the issue—he tells the Court that the Government knows its obligations, without ever saying what it believes those obligations to be. It tells this Court the Government is trying to negotiate with the other BRICS countries or with the ICC, without revealing what it will do if those negotiations bear no fruit.

The South African government seemed to clear up this confusion though and come out firmly against the idea of immunity. Ramaphosa mentioned in his confidential affidavit, which Director-General of the Department of International Relations and Cooperation Zane Dangor recently confirmed, that his government consulted at length with the ICC on the immunity issue and ultimately concluded that Putin did not have immunity and would have to be arrested if he attended the BRICS summit. Dangor also said that the ICC confirmed “that Article 98 does not provide for immunities for non-state party Heads of States” in confidential reports, despite South Africa’s attempts to urge the ICC to make them public. 

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At times, the ICC can feel like a political football rather than an impartial international legal institution. Reports that France changed its stance on immunity in return for involvement in a Lebanon ceasefire deal suggests that it made a decision based on a diplomatic and geopolitical calculus rather than a legal one.

Roughly a week after the Oct. 7, 2023, Hamas attacks on Israel, in a piece on the status of the ICC’s Palestine investigation, which the prosecutor had opened in 2021, I wrote, “In many ways, the ICC reflects the will of the states that are parties to it, and its actions often reflect the geopolitical reality that the court is working in.” A quid pro quo would only substantiate this truism further.