The European collaboration with Israel since the beginning of the invasion of Gaza and the subsequent genocide is evident. We are not only talking about the continuous shipment of military material necessary to maintain the serious violations of human rights in Gaza and Lebanon (which led Nicaragua to sue Germany before the International Court of Justice for its close collaboration with Israel), but that said support has been translated into diplomatic support, through the maintenance of diplomatic relations with the Israeli State. And also legal, since France stated on November 27 that will recognize the immunity of Israeli Prime Minister Benjamin Netanyahu from the arrest warrant issued by the International Criminal Court in the face of the crimes he is accused of: the war crime of starvation as a method of war and the crimes against humanity of murder, persecution and other inhuman acts. What does this mean in practice? That, beyond the failure to comply with the obligation of every State that is part of the Court to collaborate in the execution of arrest warrants, France, the third largest contributor to the Court’s budget in 2024is going against his initial position on this issue (Well, at the time, he publicly supported the order). And what is even more surprising: this change in position clashes with the precedents we have in this regard. Let me explain.
To understand the change in France’s position regarding this order and its derivatives, we must briefly focus on part of the internal functioning of the International Criminal Court.
Firstly, the International Criminal Court has jurisdiction to try anyone who commits international crimes in the territory of its member states and regardless of their nationality. This thus allows nationals of States that are not part of the Court (Israelis, Russians or Americans, to give three random examples) to be tried in The Hague in case they commit said crimes in States that do belong to the Rome Statute. or have given the Court jurisdiction for a specific case: such as Palestine in the first case or Ukraine in the second.
Secondly, the Rome Statute allows people who hold the Head of State, Governments and ministerial portfolios to be tried before the Court, if they have participated in the commission of international crimes. That is, the criminal immunity inherent to the position they hold is not applied to these people, since the jurisdiction of this court, according to art. 27 of the Statute, “will be applicable equally to all without any distinction based on official position (…) whether Head of State or Government, member of a government.”
And, thirdly, related to the above: France argues that the final decision on the application of immunity would in any case rest with the State where that person is located, by virtue of art. 98. That is to say, if Netanyahu were in France, the French Government would be the one who would have to decide what to do with him: whether to apply immunity and, therefore, not hand him over; or if he decides that since he is suspected of committing international crimes, that immunity is not applicable and he can be tried before the Court. Beyond what we will now comment on, France has already opted for this first option, declaring that since Israel is not part of the Rome Statute, Netanyahu has immunity as head of state and cannot be tried. Let’s see where the contradiction of France’s decision lies, taking into account a fairly clear precedent.
On September 3, 2024, Vladimir Putin, who is under an arrest warrant from the International Criminal Court, traveled to Ulaanbaatar. Here, a case identical to that of France and Netanyahu: a head of a State is not part of the Court (Russia) in the territory of another that is (Mongolia). What happened? Red carpet and honors for the Russian head of state. Given this situation, the International Criminal Court decided that Mongolia was failing to fulfill its obligation to cooperate with the Court and that there was no reason not to apply art. 27 and not hand over the Russian president to The Hague, since criminal immunity can in no case be applicable to state authorities that commit international crimes, regardless of whether they belong to a State that is not a party to the Statute. To this I would add that art. 98, under which France hides, is not valid in this type of situation, because beyond other underlying reasons, it does not specifically appeal to the possibility of not handing over high State authorities when required by the Court.
These being the arguments given at the time, The European Union itself echoed this behavior of Mongolia and regretted that a “State Party to the Rome Statute of the International Criminal Court has not fulfilled the obligations imposed by the statute to execute the arrest warrant”, while expressing “its strongest support for the efforts to ensure full accountability for war crimes and the other most serious crimes in connection with the war of aggression against Ukraine in Russia.” An opinion that, we understand, France would share at the time without blinking.
All of the above only highlights once again the double standard of measurement of European States in the face of the same events that occurred in different latitudes and how diplomatic relations have the capacity to even modify the interpretation of the same norm according to the case. If Mongolia’s position with Putin was insulting enough that the European Union had to step in, in addition to being condemned by the Court itself, France’s public commitment not to arrest Netanyahu when the time comes would deserve a response in the same sense. We can only hope that, if necessary, action will be equally forceful with all those who, like France, prioritize their diplomatic (and economic) relations over their commitments to international justice, which they all claim to respect. when in reality they do not stop using it as simple gestures of good intentions and they manipulate and use it only to improve their image to the outside.
To all of them, a reminder of the preamble of the Rome Statute, of which they are a part: “the most serious crimes of significance for the international community as a whole must not go unpunished.”
#Freedom #equality #fraternity #Netanyahu
