What is the legal basis for France to not execute ICC arrest warrants?

Question

Factual background

(This question handles the same topic but asks different questions.)

Background: on November 22, 2024, the International Criminal Court (ICC) published arrest warrants for various individuals suspected of international law violations with respect to an ongoing conflict in Gaza/Lebanon. Such individuals include the current prime minister of Israel and members of his cabinet.

The French ministry of Foreign Affairs published today (November 27, 2024) the following statement (English translation by me, there does not seem to be an official translation at the moment):

La France respectera ses obligations internationales, étant entendu que le Statut de Rome exige une pleine coopération avec la Cour pénale internationale (CPI) et prévoit également qu’un État ne peut être tenu d’agir d’une manière incompatible avec ses obligations en vertu du droit international en ce qui concerne les immunités des États non parties à la CPI. De telles immunités s’appliquent au Premier ministre Netanyahou et aux autres ministres concernés et devront être prises en considération si la CPI devait nous demander leur arrestation et remise.

France will fulfill its international obligations, with the understanding that the Rome Statute demands full cooperation with the ICC, and also establishes that a State may not act in a manner incompatible with international law with respect to the immunity of States that are not party to the ICC. Such immunities apply to prime minister Netanyahou and other concerned ministers and must be taken into consideration if the ICC asked France to arrest and deliver them.

France is a party to the Rome Statue. Israel is not (nor is Lebanon). Palestine is, kind-of (see this footnote of the Wikipedia article for details).

Questions

What are the "immunities" described in the statement? Do they apply to specific persons (e.g. Netanyahou and high-ranking officials) or to all Israelis (or all nationals of a non-signatory state)?

Assume that somehow the French government is able (legally and practically) to arrest one of the requested persons. Is it under an obligation to do so?

(Answers for any country that is a party to the Statute of Rome are welcome.)

I am specifically not interested in:

• the canned answer that "international law is unenforceable" (sure, but let’s assume France tries to obey it);
• technical speculation as to whether French police forces could practically arrest any of the requested persons (assume it can easily and safely do so; for instance, suppose Netanyahou resigns all his offices, retires from politics and comes visit France on a holiday visa; he stays for an extended duration and his place of residence is published in the press)
• political speculation as to whether France should disobey international law due to circumstances such as its interests in the Middle East, its relationship with the US or whatever (I have an adequate supply of pundit drivel in my home newspapers).

My analysis

France has a duty to cooperate with ICC investigations (under article 86 and following). The French government may dislike the ICC decisions but (as long as it has not withdrawn from the Statute as provided therein) it is still bound by them.

Therefore, in my understanding, the French government (or French courts) does not have any legal leeway to question whether the ICC has jurisdiction over specific persons, for specific facts, whether the warrants were regularly issued and so on. The French government may grumble as loudly as it wants, but its hands are tied, it must execute the warrant. In particular, the ICC has already decided (by issuing the warrants) that Netanyahou and others are not immune from prosecution.

I find this hard to square with the foreign ministry’s statement that suggests France may not enforce the warrant if certain unspecified legal circumstances arise.

Answer 1

This is probably based on Article 98 of the Rome Statute, which says,

Article 98 Cooperation with respect to waiver of immunity and consent to surrender

1. The Court may not proceed with a request for surrender or assistance which would require 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 the Court can first obtain the cooperation of that third State for the waiver of the immunity.

2. The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender.

The US is controversially know to have at one time entered into "Bilateral Immunity Agreements" with over 100 countries, to use Article 98 to shield its troops in ICC party countries from potential ICC prosecution.

So the argument would presumably be that, if France and Israel enter into an agreement that obligates France to give immunity to Netanyahu or Israeli officials more broadly, unless Israel waives the immunity, then France can use Article 98 to not arrest them.

But there is some tension between this and Article 27, which says that being a head of government or other official is not grounds for immunity from the ICC:

Article 27 Irrelevance of official capacity

1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, 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, nor shall it, in and of itself, constitute a ground for reduction of sentence.

2. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.

The ICC has ruled that Jordan was in violation for failing to arrest Omar al-Bashir, and Mongolia was in violation for failing to arrest Vladimir Putin, despite both countries arguing that they granted immunity to the visiting head of state and Article 98(1) meant they did not have to arrest him. So I think that the ICC would similarly rule against France if it failed to arrest Neyanyahu and attempted to use Article 98(1) to justify it.