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Article by Alejandro Abadía | February 10, 2025 | Global Rights Defenders
In March 2023, the International Criminal Court (ICC) issued an arrest warrant for Russian President Vladimir Putin for alleged war crimes committed in the ongoing conflict in Ukraine. Western governments, including those from France, the United Kingdom and the United States, welcomed the Court's decision and defended the ICC's efforts to combat impunity. Such a commitment, however, was diluted when the same international tribunal issued an arrest warrant for Israeli Prime Minister Benjamin Netanyahu, a Western ally, in November 2024.[1]
On this occasion, instead of supporting the ICC's decision, several Western countries expressed ambiguous positions regarding the possibility of arresting Netanyahu. The strongest opposition came from France, which argued that the Israeli Prime Minister enjoys immunity from international prosecution since Israel is not a State party to the ICC. This new stance contradicts France's previous position, as Russia does not recognize the Court's jurisdiction either. Experts have criticized these inconsistencies, suggesting a double standard for implementing international law, depending on who is considered an ally.[2]
What are State Immunities?
International law recognizes two types of immunities that limit the states' authority over foreign countries to facilitate the maintenance of international relations.[3] The first type is known as personal immunity. It protects certain State officials, such as Heads of State and Foreign Ministers, from criminal prosecution during their tenure. The second category is called functional immunity and applies to the official acts performed by State officials. It stems from the legal principle of sovereign equality, which prevents domestic courts from reviewing the acts of another State.
The evolution of international criminal law suggests that the immunities regime does not prevent certain international tribunals from exercising jurisdiction over State officials for serious crimes. For example, the statutes of the international criminal tribunals for the former Yugoslavia and Rwanda (ICTY and ICTR), as well as that of the International Criminal Court, assert that the official position of a person shall not shield them from their criminal responsibility. For some legal scholars, however, the extent of these provisions depends on the legal basis of the tribunals. When the United Nations Security Council (UNSC) creates courts, like the ICTY and the ICTR, no country can invoke the immunities argument to abstain from cooperating with them, as all UN State members are obliged to do so under their membership. On the contrary, when the Court is created by a treaty, as in the case of the ICC, only the States party to it are bound to cooperate.[4]
Legal Grounds for Not Arresting Netanyahu and Putin
Consistent with these legal developments, Article 27.2 of the Rome Statute asserts that State immunities cannot shield State officials from the ICC jurisdiction. However, Article 98.1 provides that the Court may not request a state party to "act inconsistently with its obligations under international law in respect to the […] diplomatic immunity of a person […] from a third State."[5] Thus, by ratifying the Rome Statute, State parties seem to have waived the immunities of their officials concerning the ICC. In contrast, States not party to the treaty maintain such immunities, as the agreement does not bind them. As a result, unless the State in question waives this immunity, the ICC would lack jurisdiction over senior officials from these countries.[6]
The French position on Netanyahu's arrest warrant seems to rely on Article 98. Similarly, other countries have challenged the Court's decisions by using this provision. South Africa, for instance, invited President Putin to the BRICS summit in August 2023, asserting that it would grant diplomatic immunity to all attending leaders. Moreover, in September 2024, Mongolia, which is a State Party to the ICC, welcomed Mr. Putin to its territory without arresting him, arguing that he enjoyed immunity as a Head of State.[7] The plausibility of these arguments resides in the purpose of Article 98. As explained by scholar Olivia Flasch, such a provision aimed to govern the relations between ICC signatories, who have voluntarily waived the immunities of their State officials, and third States who are not parties to the treaty and, therefore, retain such immunities.[8]
Despite the apparent popularity of this line of thought, the ICC has taken a different stance in previous rulings, as it has consistently rejected the possibility of considering immunities as a barrier to its proceedings. Consequently, it is unlikely that the Court will accept these arguments.
Legal Grounds for Arresting Netanyahu and Putin
The ICC has previously analyzed the alleged contradictions between Articles 27.2 and 98.1 of the Rome Statute. In May 2019, an Appeals Chamber issued a judgment addressing Jordan's refusal to execute an arrest warrant for Omar Al-Bashir, the then President of Sudan, during an official visit in 2017. Even though Sudan was not a party to the ICC, the Court issued an arrest warrant after the UNSC referred the case to them.
According to the judgment, Article 98.1 of the Rome Statute is a procedural rule that requires the ICC to consider the bilateral obligations of State parties when requiring their cooperation. However, the Court is clear that such a provision does not recognize or grant any immunities for third States. On the contrary, the Court found that Article 27.2 applies to all States, not just ICC members, as it reflects international customary law.[9] By asserting this claim, the Appeals Chamber rejects the existence of a global rule that grants immunity to senior officials for international crimes. Consequently, international tribunals, such as the ICC, may, in certain circumstances, exert their jurisdiction over these individuals regardless of their nationality. As the immunity argument is no longer plausible according to this line of thought, ICC members must cooperate with the Court as the Rome Statute provides. In the words of the UN Special Rapporteur on Palestine, Francesca Albanese, "[…] obstructing the execution of an arrest warrant could be seen as a breach of Article 70, an obstruction to the administration of justice […]."[10]
In a more recent decision issued in October 2024, the ICC Pre Trial Chamber II (PTC II) found that Mongolia had breached the Rome Statute for refusing to arrest Vladimir Putin during an official visit to the country in September 2024. As previously explained, the Asian country relied on Article 97 of the treaty to justify its inaction. However, the Court rejected Ulaanbaatar's arguments although without addressing whether it considers Article 27 customary law.[11]Instead, it argued that such a provision removes all immunities of senior officials, including Heads of State. As a result, the country, as an ICC signatory, must arrest and surrender Mr. Putin, as "any arguable bilateral obligation that Mongolia may owe to the Russian Federation […] is not capable of displacing the obligation that Mongolia owes to the Court […]."[12] In this sense, the PTC II dismissed the possibility of raising immunity-related arguments to oppose the Court's proceedings.
Conclusion
For some, the contradictory positions regarding the arrest warrants reflect a lack of consensus on the ICC's reach.[13]Although the Court's rulings on the matter have been highly controversial, the tribunal has maintained the argument that immunities cannot hinder accountability for international crimes. Furthermore, to advance international justice, the global community must abstain from politicizing international law by adopting selective interpretations of the Rome Statute and instead setting precedents through legal arguments.
References
[1] Flasch, O. (2024). The Interplay Between Articles 27 and 98 of the Rome Statute: A Familiar Friend Makes a New Appearance in the Arrest Warrants Against Netanyahu and Gallant. Ejil: Talk! Blog of European Journal of International Law. Retrieved January 8th from https://www.ejiltalk.org/the-interplay-between-articles-27-and-98-of-the-rome-statute-a-familiar-friend-makes-a-new-appearance-in-the-arrest-warrants-against-netanyahu-and-gallant/
[2] Adler, N. (2024). Is Netanyahu Immune from ICC Arrest Warrant as France Claims? Aljazeera. Retrieved January 8th from https://www.aljazeera.com/news/2024/11/28/is-netanyahu-immune-from-icc-arrest-warrant-as-france-claims
[3] Chanaka, W. (2014). Immunity of State Officials and International Organizations. International Law. Fourth Edition, Edited by Malcom D. Evans, Oxford Press. New York.
[4] See No. 1. Flasch, O. (2024).
[5] International Criminal Court. (1998). The Rome Statute. Retrieved January 12th from https://www.icc-cpi.int/sites/default/files/2024-05/Rome-Statute-eng.pdf
[6] See No. 1. Flasch, O. (2024).
[7] Asem, O. (2024). Are Netanyahu and Gallant Immune from ICC Arrest Warrants Under International Law? Middle East Eye. Retrieved January 14th from https://www.middleeasteye.net/news/icc-netanyahu-gallant-arrest-warrant-immunity-international-law
[8] See No. 1. Flasch, O. (2024).
[9] International Criminal Court (2019). Judgement in the Jordan Referral Re Al-Bashir Appeal. Retrieved January 7th from https://www.icccpi.int/sites/default/files/CourtRecords/CR2019_02593.PDF
[10] Donmez, B.B. (2024) France’s Netanyahu Immunity Claim from ICC Has ‘No’ Legal Validity: UN Rapporteur. AA Europe. Retrieved January 21st from https://www.aa.com.tr/en/europe/frances-netanyahu-immunity-claim-from-icc-has-no-legal-validity-un-rapporteur/3407271
[11] Keiichiro, K. (2024). The ICC’s Turn to Cynical Solipsism: The PTC II’s Finding of Mongolia’s Non-Compliance in the Case Against Putin. Ejil: Talk! Blog of European Journal of International Law. Retrieved January 21st from https://www.ejiltalk.org/the-iccs-turn-to-cynical-solipsism-the-ptc-iis-finding-of-mongolias-non-compliance-in-the-case-against-putin/
[12] International Criminal Court. (2024). Situation in Ukraine. Retrieved January 24th from https://www.icc-cpi.int/sites/default/files/CourtRecords/0902ebd1809d1971.pdf
[13] Lister, T. (2024). Netanyahu Arrest Warrant Tests Western Commitment to International Law. CNN. Retrieved from https://edition.cnn.com/2024/12/04/middleeast/icc-arrest-warrants-putin-netanyahu-analysis-intl/index.html
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