France's U-turn on Netanyahu's ICC immunity criticized as a 'lie' and 'double standard'

Lawyers, rights groups and politicians accuse Paris of misrepresenting the Rome Statute after its volte-face on obligation to arrest and surrender Israel's PM to the ICC

By Elodie Farge

Published date: 28 November 2024 

https://www.middleeasteye.net/news/complicity-genocide-frances-statements-netanyahus-alleged-immunity-spark-strong-criticism

France's claim that Israel's Prime Minister Benjamin Netanyahu could benefit from immunity from international arrest after a warrant issued by the International Criminal Court (ICC) has drawn strong criticism from prominent human rights organisations, lawyers and political leaders.

Asked on French radio about the possibility of an arrest in France of the Israeli prime minister, Foreign Affairs Minister Jean-Noel Barrot mentioned possible “questions of immunity” for “certain leaders” provided for by the Rome Statute, which created the ICC.

“It is ultimately up to the judicial authority to decide,” Barrot said.

In a statement published later on Wednesday, the foreign affairs ministry stated that France would respect its international obligations and fully cooperate with the ICC, but it added that the Rome Statute governing the ICC provided that a state cannot be required to act "in a manner incompatible with its obligations under international law with regard to the immunities of states not party to the ICC”.

Israel is not a signatory to the ICC and has claimed that it cannot be held to account under the Rome Statute.

The Quai d’Orsay added that “such immunities apply to Prime Minister Netanyahu and the other ministers concerned and will have to be taken into consideration if the ICC were to ask us for their arrest and surrender.”

"In accordance with the historic friendship that binds France to Israel, two democracies committed to the rule of law and respect for professional and independent justice, France intends to continue to work closely with Prime Minister Netanyahu and other Israeli authorities to achieve peace and security for all in the Middle East," the ministry added.

The statement represented a volte-face from the initial French reaction to the ICC's decision last week to issue arrest warrants for Netanyahu and his former defence minister Yoav Gallant, on charges of war crimes and crimes against humanity committed against Palestinians in Gaza since October 2023.

Last Thursday, France emphasised its commitment to the court's rulings. According to the Rome Statute, all 124 state parties, including all EU members, are now under a legal obligation to arrest the pair and surrender them to the court.

While it can be argued that Netanyahu as a serving prime minister is entitled to immunity before national courts, the rules under international courts are unequivocal in rejecting immunity for individuals under their jurisdiction, experts told Middle East Eye last week. 

‘Harmful double standard’

It is the first time a member of the ICC has argued that Netanyahu is covered by immunity as a sitting head of government because Israel is not a member of the ICC.

France has never publicly raised the issue of immunity for Russian President Vladimir Putin and former Sudanese head of state Omar al-Bashir - who have been issued arrest warrants by the ICC for, respectively, the war crime of deporting Ukrainian children and crimes against humanity in Darfur - although these countries are not ICC states parties.

For specialists, the French position does not hold up.

“The heads of states do not enjoy immunity before the ICC, period, irrespective of whether they belong to state parties or also to non-party states,” international law professor at Leiden University, Giulia Pinzauti, told MEE last week.

Amnesty International secretary general Agnes Callamard declared on X that France's statement “runs counter to France's fundamental obligations as a member state of the ICC”.

“A cornerstone principle of the ICC Statute is that no one is above the law, including heads of state sought for arrest, such as Vladimir Putin or Benjamin Netanyahu. This has been confirmed in a decision by the Court's Appeals Chamber in jurisprudence which is binding on all member states,” she explained.

“France's position is deeply problematic. Rather than inferring that those indicted by the ICC may enjoy immunity, France should expressly confirm its acceptance of the unequivocal legal duty under the Rome Statute to carry out arrest warrants, and affirm that all persons subject to ICC arrest warrants will be arrested and surrendered to the Court if they find themselves in France's jurisdiction,” Callamard stressed.

For the France director of Human Rights Watch (HRW), Benedicte Jeannerod, the French position is "shocking".

“Has French diplomacy misread Article 27 of the Rome Statute, which clearly states that there is no immunity for the most serious crimes under the ICC?” she asked on X.

“They apparently read it differently regarding Putin. Harmful double standard," she added.

The International Federation for Human Rights (FIDH) also called the move a "complete disgrace”.

"The arrest warrants of the ICC are non-negotiable,” FIDH wrote in a statement, adding that the French position "dangerously undermines” international law “at a time when it is urgently needed”.

“Such remarks are unacceptable and fall short of the rigour and competence expected of French diplomacy,” said the Human Rights League (LDH), FIDH’s member organisation in France.

“There was no question of immunity for Mr Putin: this double standard is damaging to France’s reputation, particularly in relation to the countries of the South."

French lawyer and political activist Juan Branco explained on X that immunities relating to heads of non-member states mentioned in Article 98 of the Rome Treaty “are not applicable in our country”. 

“There is, today, in French law and according to its own judges, no incompatibility between our international obligations and the execution of the arrest warrant targeting Mr Netanyahu,” he wrote.

“It is inconceivable that the Legal Affairs Department of the Quai, among the most renowned in the world, did not warn the minister that the Paris Court of Appeal had, on 26 June 2024, ruled that the personal and functional immunities of heads of state and government were irrelevant concerning the commission of crimes punishable by customary international law, including obviously all those covered by the Rome Statute.”

Last June, the Paris Court of Appeal validated an arrest warrant for Bashar al-Assad, accused by French investigating judges of complicity in crimes against humanity for the deadly chemical attacks of August 2013 attributed to the Syrian president. The decision decisively changed the French case law on the immunity of sitting heads of state, recognising for the first time that the personal immunity of a sitting head of state is not absolute.

The ‘deal’ behind the deal

According to Branco, the statement by the Quai d'Orsay "is clearly the result of maximum political pressure."

On Wednesday, Israeli media Haaretz and Maariv suggested that France’s statement on Netanyahu’s possible immunity had been linked to negotiations with Israel to accept a ceasefire in Lebanon.

Macron has been deeply involved in ending the fighting between Israel and Hezbollah in recent months. At the end of September, Paris and Washington proposed a 21-day ceasefire plan at the United Nations which was publicly dismissed by Netanyahu.

An Israeli source told Haaretz that the French government, according to the prime minister's circle, agreed to publish this statement only in light of an Israeli ultimatum and a threat to otherwise leave France out of the ceasefire negotiations process and mechanism.

While cautioning about the veracity of this “spin”, as it called it, the Hebrew newspaper added that “a likelier explanation is that France offered this as a sweetener, knowing that Netanyahu often places his personal interests above those of the state.”

According to the US news site Axios, US President Joe Biden called Macron on Friday to tell him of Netanyahu's anger after hearing the first reaction of the Quai d'Orsay to apply the ICC decision. Macron then reportedly spoke with Netanyahu.

"France agreed to take steps to improve its relations with Israel, and Israel agreed that France would play a role in implementing the [ceasefire] agreement," a US official told Axios on Monday.

Statement denounced as 'shameful'

In France, several political figures, mainly on the left, have strongly criticised the Foreign Affairs Ministry's announcement and the possibility of a behind-the-scene agreement with Israel to boost Paris’ stance on the international diplomatic scene.

The leader of the Ecologists party, Marine Tondelier, called the ministry’s statement “shameful”.

“France once again bows to Benjamin Netanyahu's demands by choosing him over international justice. Surely this was the ‘deal’ so that France would be cited in the official communique announcing the ceasefire in Lebanon published jointly by France and the United States yesterday,” she wrote on X.

Tondelier denounced “a historic error, a very, very serious one”.

“We are taking down international justice and the multilateral system that we have patiently built for decades. But also, quite simply, what is left of our international credibility. It is tragic,” she added.

Manuel Bompard, coordinator of left-wing party France Unbowed (LFI), adopted a play on words after sharing a news piece titling that “Netanyahu enjoys ‘immunity’, according to French diplomacy”.

"Isn't it rather 'impunity'?" he asked on X.

“The government's complicity in the genocide of the Palestinians is total,” tweeted LFI MP Louis Boyard.