Stubborn France

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 measures and 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.

Excerpted: ‘Gallic Stubbornness: France, Netanyahu and the ICC Arrest Warrants’.

Courtesy: Counterpunch.org