The recent decision by France and the United States to grant diplomatic immunity to the Israeli Prime Minister, Benjamin Netanyahuunder the protection of international law, has sparked a debate on the instrumentalization of international justice in diplomatic negotiations. This measure, taken as part of the ceasefire agreement between Israel and Hezbollah, revealed deep divisions within Europe and in its foreign policy towards the Middle East.
The immunity deal for Netanyahu played a key role in the US-brokered negotiations, with France taking a leading role. On November 21, the International Criminal Court (ICC) issued arrest warrants for Netanyahu, its former defense minister. Yoav Gallant And Mohammed DeifHamas military commander and architect of the October 7, 2023 attack on Israeli civilians. The Hague court’s decision complicated the diplomatic negotiations led by the American envoy Amos Hochstein for over a year.
The ceasefire, announced on November 24, includes the withdrawal of Israeli forces from southern Lebanon, the relocation of Hezbollah weapons north of the Litani River and the creation of a US-led monitoring committee.
Three days later, last Wednesday, France announced that it would respect its international obligations but that it would consider Netanyahu’s immunity, thus facilitating the unblocking of negotiations. For its part, the Administration of Joe Biden also granted diplomatic immunity to Netanyahu, arguing that it was not possible to mediate while threatening to arrest a key leader. In addition, he advanced the sale of a batch of weapons to Israel for $680 million, which sparked criticism of the humanitarian crisis in Gaza.
These agreements set a precedent in the use of international justice as a diplomatic tool.
France, a traditional defender of human rights, has argued that immunities granted to leaders of non-ICC member states, such as Israel, are consistent with Article 98(1) of the Convention. Rome Statute. However, this interpretation has already been rejected by the ICC itself in cases such as those of Omar al-Bashir And Vladimir Putin. According to Leila Sadat, former special advisor to the ICC, “Article 27 of the Statute was designed to eliminate the immunity of heads of state before international courts, and Article 98 should not be read as an exception” .
France’s position contrasts with that of countries like Italy and the United Kingdom, which have said they will fulfill their obligations to arrest Netanyahu if he enters their territory. This reflects the lack of unity within the EU, where Some states prioritize international justice while others opt for strategic approachesweakening Europe’s collective position on the international stage. Joseph BorrellHigh Representative of the EU, stressed this week that member states are required to respect and implement the decisions of the ICC. As Estonian analyst Dmitri Teperik wrote, “Europe’s internal divisions and lack of coherence in Gaza have weakened its ability to act as a democratic model.”
The Arab point of view
Reactions in the Middle East to the arrest warrants and ceasefire reveal the animosity toward Israel in the region. Lebanon, choked by Israeli attacks on Hezbollah, applauded the ICC’s decision, seeing it as a step toward justice for victims of indiscriminate attacks in Gaza. Iraq and Jordan supported the move, while Iran stepped up its rhetoric, calling the order a moral victory against its historic enemy. The Ayatollah Ali Khamenei He even demanded the death penalty for Netanyahu and Gallant, reflecting the particular Iranian vision of justice.
In contrast, a more lukewarm response was received from Egypt, which stressed the importance of respecting the decisions of international courts, but without explicitly committing. Saudi Arabia and the United Arab Emirates reiterated their support for the Palestinian people and expressed concern over Gaza, avoiding commenting directly on the ICC. Syria, although critical of Israel, focused its discourse on denouncing the occupation. It should be noted that only Jordan, Tunisia and Palestine are members of the Rome Statutereflecting the lack of respect for international law in the region.
Legality and morality
Using an ICC arrest warrant as a bargaining chip raises legal and ethical questions. According to William Schabas, professor of international criminal law, “the reference to state immunity in Article 98(1) is limited to the protection of government activities abroad and should not be extended to leaders accused of crimes international”.
From a moral perspective, this precedent could undermine the credibility of the ICC and its ability to act as an impartial tribunal, especially if other states begin to adopt similar approaches. In this sense, Bruno Cotte, honorary magistrate of the ICC, underlined in The World this week that “The effectiveness of the ICC depends on the support of States to implement its decisions”.
The instrumentalization of international justice in negotiations such as that between Israel and Hezbollah demonstrates the urgent need for the EU to adopt a coherent position. Without a common approach, Europe risks undermining its core values and losing influence in a key region, a vacuum that Russia and Iran can exploit, as was the case in the war in Syria. At the same time, the pragmatic use of immunity by Macron and Biden has made it possible, for the moment, to achieve a necessary ceasefire.
