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PCHR: Double Standards and Intent to Violate the Rome Statute: France Must Rescind its Decision to Accord Immunity to Wanted Criminals Netanyahu and Gallant

The Palestinian Center For Human Rights (PCHR): Al-Haq, Al Mezan Center for Human Rights, and the Palestinian Centre for Human Rights, condemn in the strongest terms as a deliberate and egregious evasion of international law, the statement by France declaring that Israeli Prime Minister Netanyahu and other relevant Ministers  will benefit from “the immunities of States not party to the ICC [International Criminal Court]”, indicating that “should the ICC request of us their arrest and surrender” such immunities would have to be “taken into account”.

The 27 November 2024 statement from France’s Ministry of European and Foreign Affairs evidences a political loyalty by France to Israel –– France having reportedly bartered its position on immunity in return for Israel’s acceptance of the Lebanon ceasefire –– trumping its own legal obligation and commitment to the rule of law. France’s decision to declare its intention not to abide by its obligations under the Rome Statute, suggests a reactionary and fundamentally dangerous reversal in French policy on immunity for Heads of State, a policy direction that runs contrary to France’s statutory obligations under the Rome Statute.

The ICC has clearly set out the obligations of States Parties to the Rome Statute to enforce arrest warrants against individuals wanted by the Court. Most recently, on 24 October 2024, the ICC ruled on the refusal of Mongolia to cooperate in the arrest and surrender of Russia’s President, Vladimir Putin, also the subject of an ICC Arrest Warrant on war crimes charges, on the occasion of his visit to Mongolia.

Russia, like Israel, is not a state party to the ICC. In arriving at its conclusion that Mongolia failed to comply with its international obligations under the Rome Statute by not executing the Court’s request for the arrest and surrender of Mr, Putin while he was on Mongolian territory, the Court noted that the question to be answered was “whether States Parties, including Mongolia, and States that have accepted the jurisdiction of the Court under article 12(3) of the Statute alike, have an obligation to execute an arrest warrant regarding the Head of a non-State Party in compliance with article 27 of the Statute”.^[1] [para 20]

In its decision re Mongolia, the Court emphasised that: “By mandating accountability without exception, article 27 strengthens the integrity of the international legal framework and reinforces the commitment of States Parties to combat impunity for the most serious crimes of concern to the international community”.[para 26] The Court concluded that while personal immunities attach to Heads of State in their bilateral, horizontal, relationships, such immunity: “does not operate in the vertical relation between the Court and States Parties. The vertical nature of the obligations towards the Court supersedes traditional interstate immunity principles, meaning that States Parties must act in accordance with their obligations under the Statute, even if it conflicts with horizontal relations with non-States Parties”. [para 33]

France’s position, as stated regarding Israeli suspects subject to arrest warrants by the ICC, constitutes a shocking development, and runs contrary to its obligations under the Rome Statute, as have been clearly and consistently interpreted and explained by the Court.

France’s position also contradicts France’s own previous positions and highlights blatant double standards in the administration of international justice. On 17 March 2023, France noted the ICC’s issuance of the arrest warrant for Putin, observing that:“The Court, which launched its investigation on 2 March at the request of some 40 States, including all the European Union Member States under the French EU presidency, acts with full independence. It considers that these acts constitute war crimes and therefore cannot go unpunished”. Commenting on Mongolia’s failure to execute the arrest warrants for Putin on grounds of alleged “immunities”, France declared that: “Each State party to the Rome Statute has an obligation to cooperate with the International Criminal Court and execute the arrest warrants it issues, in accordance with the relevant provisions of the Rome Statute . . . [France] lends its full support to the ICC and to the Ukrainian courts working towards that goal.”

France is willing  to support the execution of an ICC arrest warrant against the officials of Russia as a non-state party, but would devise a legal machination by which to seek to avoid such a conclusion in the case of arrest warrants mandated against Israeli officials. That such a contradictory position can be adopted, even despite the Court’s intervening censure of Mongolia’s conduct as being contrary to its international obligations under the Rome Statute, evidences a grave double standard whose impact could have grievous consequences for the future of the ICC as a viable institution.

For Palestinians, subjected to blatant repression and criminality by a genocidal settler colonial apartheid regime directed and commanded by Netanyahu and his officials, the ICC serves as a last resort for the possibility of accountability. The reference in France’s statement, asserting that Israel is “committed to the rule of law and to respect for a professional and independent justice system” has been proven false through decades of impunity for the widespread and systematic abuse of Palestinians’ rights. The very object of the ICC’s existence is to confront and abolish impunity for international crimes, an object for which it relies, and depends, on states parties’ cooperation and compliance with its requests and orders.

We call on France

–        To retract its statement of 27 November 2024, and to reaffirm its former position that: “Each State party to the Rome Statute has an obligation to cooperate with the International Criminal Court and execute the arrest warrants it issues, in accordance with the relevant provisions of the Rome Statute”.

–        To reiterate its commitment to abide by the Rome Statute, all orders and requests of the Court, and to abide by its international legal obligations.

To all states parties

–        To comply with the obligation, inter alia, to cooperate in arresting Netanyahu and Gallant;

–        We call on all States to close off their land air and sea for the transit of Netanyahu and Gallant to international travel, to arrest the perpetrators and facilitate their transfer to the Hague.

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^[1] Article 27 of the Rome Statute allows for no immunity, and reads:

1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.

2. 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. An individual, wielding state power, and utilising all organs of state, is responsible for crimes.