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The Democratic party candidate for the New York Mayor election has said publicly that he would make efforts to arrest Netanyahu if he ever comes to New York.

Politicians, of course, say a lot of things when campaigning.

Can Netanyahu actually be arrested in New York, by the New York Police Department? Under what laws can this be done and would a successful prosecution be possible?

I understand that diplomatic immunity can be pierced, and is not absolute. But I am not aware of a single case where diplomatic immunity has been pierced for a crime committed abroad, and not within the jurisdiction of the host country. Some have advocated that Israel can be held accountable under the Lehy law. There is even 18 U.S. Code § 1091 - Genocide and 18 U.S. Code § 2441 - War crimes but I don't know if it applies to foreigners (or in this particular, case to Israel and Netanyhu). Also, these are Federal laws - can New York state really enforce these without the support of the Federal government, to arrest and prosecute Netanyahu?

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1 Answers1

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Under US law, heads of state and heads of government are accorded diplomatic immunity in the US regardless of the purpose of their visit. Other representatives of foreign governments enjoy diplomatic immunity when they are in the US for official reasons.

Diplomatic immunity includes freedom from arrest. Police sometimes do arrest diplomats who aren't supposed to be arrested, but any such arrest is typically of a short duration. If New York authorities didn't release him promptly, the federal Department of State could intervene. If the case were to progress to arraignment, the judge should order his release.

Netanyahu's diplomatic immunity as prime minister of Israel can be waived by Israel. In the likely event that Israel refused to waive immunity, Netanyahu would be subject to possible arrest only if present in New York for some non-official reason after ceasing to be prime minister.

However, there seems to be no crime of genocide in New York's penal law, and while I suspect that the NYPD could arrest someone for committing a federal crime under some circumstances, it must be uncommon. In any event, such a suspect would be transferred to federal custody for prosecution in federal court. New York prosecutors do not prosecute federal crimes, nor do New York courts try them.

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