Blog by Scelecia Harwood, Junior Associate
The discourse surrounding immunity for government officials has transcended beyond the United States borders. Global debates such as the International Criminal Court (ICC) arrest warrant for Netanyahu, highlighted the broader implications of Head of State immunity in international law.[1] On November 21, 2024, the ICC issued an arrest warrant for Israeli Prime Minister Benjamin Netanyahu and his former defence minister Yoav Gallant.[2] The Pre-Trial Chamber I determined they found reasonable grounds for charges of alleged war crimes and crimes against humanity committed in Gaza between October 8, 2023 and May 20, 2024.[3]
The International Criminal Court, the world’s first permanent tribunal, is committed to ending impunity for those responsible for “the most serious crimes of concern to the intentional community.”[4] The court prosecutes individuals, primarily for war crimes or crimes against humanity and jurisdiction is limited to crimes committed within the territory of a State Party or by one of its nationals.[5] The Rome Statute serves as the court’s legal basis and was adopted by the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court in 1998 and entered into force 2002.[6] There are currently 124 countries that serve as States Parties to the Rome Statute.[7] Member States have a vital obligation to enforce an arrest warrant by detaining individuals that enter their territory and transferring them to a detention center in the Netherlands, where the court is headquartered.[8] This is crucial, as trial cannot proceed without the defendant being physically present.[9]
In line with its commitment to dismantling impunity, there is no recognized immunity as the statute applies equally to all individuals.[10] Article 27 of the Rome Statute, explicitly states “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…”[11]The French Government, a member state, raised concerns about potential limitations to this provision regarding non-member states like Israel in a November 27, 2024 press release.[12] The release highlighted that a state cannot be required to act in a manner that conflicts its obligations under international law with respect to the immunities of States not party to ICC.[13] In the words of the Foreign Ministry, “Such immunities apply to Prime Minister Netanyahu and other relevant ministers and will need to be taken into consideration should the ICC request their arrest and surrender.”[14]
Rooted in customary international law, Head of State Immunity safeguards sitting and former heads of state from legal prosecution under certain conditions.[15] This is based on the principles of state-sovereignty and equality between states.[16] Yet legal immunity scholars note that heads of state, even from nations that have not signed the ICC’s treaty, cannot claim immunity before the court.[17] Although Israel isn’t a signatory to the treaty, the Palestinian territories have signed it, using their status as a nonmember observer state at the United Nations.[18]
[1]Matthew Dalton, France Casts Doubt on Arresting Netanyahu Under ICC Warrant, https://www.msn.com/en-us/news/world/france-casts-doubt-on-arresting-netanyahu-under-icc-warrant/ar-AA1uRxps (last visited Dec. 2, 2024).
[2]Situation in the State of Palestine: ICC Pre-Trial Chamber I rejects the State of Israel’s challenges to jurisdiction and issues warrants of arrest for Benjamin Netanyahu and Yoav Gallant, Iɴᴛᴇʀɴᴀᴛɪᴏɴᴀʟ Cʀɪᴍɪɴᴀʟ Cᴏᴜʀᴛ (Nov. 21, 2024)https://www.icc-cpi.int/news/situation-state-palestine-icc-pre-trial-chamber-i-rejects-state-israels-challenges
[3] Id.
[4] The ICC at a Glance, Iɴᴛᴇʀɴᴀᴛɪᴏɴᴀʟ Cʀɪᴍɪɴᴀʟ Cᴏᴜʀᴛ, https://www.icc-cpi.int/sites/default/files/ICCAtAGlanceEng.pdf (last visited Dec. 1, 2024).
[5]Understanding the International Criminal Court, Bᴇᴛᴛᴇʀ Wᴏʀʟᴅ Cᴀᴍᴘᴀɪɢɴ (May 25, 2024), https://betterworldcampaign.org/in-the-news/get-to-know-the-international-criminal-court?gad_source=1&gclid=CjwKCAiA0rW6BhAcEiwAQH28ImwS_CS5JKhVGc8cmJgSknskwgOBQy_9Bh28DDiJFmVJhV6vJiY9mRoCGoUQAvD_BwE.
[6] Id.
[7] The States Parties to the Rome Statute, Iɴᴛᴇʀɴᴀᴛɪᴏɴᴀʟ Cʀɪᴍɪɴᴀʟ Cᴏᴜʀᴛ, https://asp.icc-cpi.int/states-parties (last visited Dec. 1, 2024).
[8] ICC issues arrest warrants for Israel, Hamas leadership: what happens next?, Uɴɪᴛᴇᴅ Nᴀᴛɪᴏɴs (Nov. 13, 2024), https://news.un.org/en/story/2024/11/1157406.
[9] Id.
[10] Rome Statute of the International Criminal Court, Iɴᴛᴇʀɴᴀᴛɪᴏɴᴀʟ Cʀɪᴍɪɴᴀʟ Cᴏᴜʀᴛ, https://www.icc-cpi.int/sites/default/files/2024-05/Rome-Statute-eng.pdf (last visited Dec. 1, 2024).
[11] Id.
[12]Israel – International Criminal Court (27 November 2024), Mɪɴɪsᴛᴇʀᴇ Dᴇ L’Eᴜʀᴏᴘᴇ Eᴛ Dᴇs Aғғᴀɪʀᴇs Eᴛʀᴀɴɢᴇʀs: Fʀᴀɴᴄᴇ Dɪᴘʟᴏᴍᴀᴄʏ, (Nov. 27, 2024), https://www.diplomatie.gouv.fr/en/country-files/israel-palestinian-territories/news/2024/article/israel-international-criminal-court-27-11-24.
[13] Id.
[14]Dalton, supra note 1.
[15] Magnus Mannerström, Head of State Immunity and International Crimes (2015) https://www.lunduniversity.lu.se/lup/publication/5435470.
[16] Id.
[17]Sondos Asem, Why experts say Netanyahu has no immunity before ICC as France (Nov. 27, 2024), claimshttps://www.middleeasteye.net/news/experts-say-netanyahu-has-no-immunity-icc-france-claims#:~:text=Sadat%20noted%20that%20in%202019,opposed%20to%20a%20national%20court.
[18] Dalton, supra note 1.