Was it legal for France, Italy and Greece to let Netanyahu fly over their airspace?

Middle East Eye

4 days ago

France, Italy and Greece allowed the plane of Israeli Prime Minister Benjamin Netanyahu to fly over their airspace en route to the United States on 7 July, raising questions about their obligations under international law.
Netayahu was issued an arrest warrant by the International Criminal Court (ICC) in November, on charges of war crimes and crimes against humanity allegedly committed in Gaza since October 2023.
In February, Netanyahu made his first trip abroad since the warrant, flying over French, Italian and Greek airspace on the way to and returning from the US.
The three states are parties to the Rome Statute, the treaty that established the Hague-based court in 2002, and are under a legal obligation to arrest those wanted by the ICC.
Then, in April, Netanyahu flew over France, Italy and Croatia during a trip from Hungary to the US.
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The ICC is the only permanent international court that prosecutes individuals for war crimes, crimes against humanity and genocide.
It has 125 signatories, including all EU countries, though Hungary has officially begun the withdrawal process in protest against the warrants for Netanyahu and his former defence minister Yoav Gallant.
They are accused of starvation of civilians as a method of war, wilfully causing great suffering, wilful killing, intentional attacks on a civilian population and extermination, among other charges.
France and Italy previously claimed that Netanyahu might benefit from immunity granted to heads of states and governments under international law, an argument rejected by the ICC and leading immunity experts.
But the use of airspace is another area of the law that has sparked discussion among international legal experts.
Sovereignty and airspace
According to Ben Saul, an international law professor and UN special rapporteur on protecting rights and freedoms while countering terrorism, the Rome Statute imposes an obligation on states parties to comply with requests for arrest and surrender of any wanted person 'found' on their territory.
However, he told Middle East Eye, the statute 'does not specifically address the question of the overflight of a state'.
Such an obligation is governed by general international law, which considers the airspace above a state's land territory as part of its sovereign territory, explained Saul, who is the Challis Chair of International Law, Sydney Law School.
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Just as a state has sovereignty over its territorial sea, it also has sovereignty over its 'territorial airspace', he added.
France, Italy and Greece are states parties to the Convention on International Civil Aviation, a treaty that includes airspace as part of a state's territory upon which it exercises sovereignty.
Sergey Vasiliev, a leading expert in international criminal law, told MEE that whereas ICC member states do not have the obligation "not to allow" Netanyahu's overflight, the interpretation of Article 89 (1) of the Rome Statute should take into account the fact that airspace is traditionally included within the notion of state territory.
A French diplomatic source told Middle East Eye in April that Netanyahu's flight on 2 February had been 'authorised' to use French airspace, which they said was 'in full compliance with France's rights and obligations under international law'.
'The Rome Statute does not impose any obligation regarding the overflight of its territory by a state aircraft carrying a person subject to an arrest warrant,' the source said.
It remains unclear whether other flights in April and July over French territory had also been pre-authorised.
'If [France, Italy and Greece] did not wish to put themselves in a situation where they would have to arrest Netanyahu, (potentially at the cost of aerial safety), they could avoid doing so by withholding authorisation to use their airspace and preventing the overflight,' said Vasiliev.
'Anything else falls short of good faith interpretation, in my view, and does not do justice to [the three states'] cooperation obligations vis-a-vis the ICC."
Tokyo Convention
Vasiliev, a professor of international law at the Open University of the Netherlands, noted that failing to take action against Netanyahu's overflight violates the duty to cooperate fully with the ICC's requests, in accordance with Article 86 of the Rome Statute.
'I seriously doubt France would have allowed overflight of, say, Vladimir Putin, if he were to request it,' the scholar told MEE.
'It is the Rome Statute which requires the arrest, and the Tokyo Convention then enables it to happen'
- Ben Saul, Sydney Law School
Vasiliev noted that Netanyahu appears to have avoided flight over ICC states where he would be at higher risk of being arrested in case of emergency landing.
Meanwhile, Saul cited the Tokyo Convention of 1963, an international treaty that addresses offences and certain other acts committed on board aircraft, as another legal framework that is relevant in the interpretation of ICC states' obligations to arrest Netanyahu.
'Under the Tokyo Convention 1963, a state normally should not interfere in an aircraft in flight to exercise its criminal jurisdiction,' he told MEE.
But there are exceptions for this provision under the same treaty, including where "the exercise of jurisdiction is necessary to ensure the observance of any obligation of such state under a multilateral international agreement".
'So the Rome Statute would be one such agreement, allowing a state to require an aircraft overflying its territory to land, in order to arrest a person on board,' Saul argued.
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Saul explained that the Tokyo Convention does not require the exercise of such jurisdiction, but permits it: 'It is the Rome Statute which requires the arrest, and the Tokyo Convention then enables it to happen.'
In April, the Association of Jurists for the Respect of International Law (Jurdi), which brings together French jurists and experts to promote the application of international law in relation to Israel-Palestine, said the authorisation of Netanyahu's plane to use French airspace was illegal.
In a letter to President Emmanuel Macron, Jurdi said that Paris likely committed a 'serious violation' of its international commitments if it pre-authorised access to its airspace.
Citing the Convention on International Civil Aviation, Jurdi said France has an obligation to 'arrest any person subject to an arrest warrant present on its territory, including by air'.
Failure to do so would weaken the integrity of the Rome Statute and cast doubt on the 'fight against impunity for the perpetrators of the most serious international crimes', the jurists wrote.
Avoiding other EU states
Netanyahu added 400km onto his flight from Budapest to Washington in April due to fears about flying over countries which may enforce the arrest warrant, Israeli media reported at the time.
According to the reports, Israeli authorities believed that Ireland, Iceland and the Netherlands would enforce the ICC warrant in the event that the Wing of Zion state plane needed to make an emergency landing.
The 2 February flight was lengthened for the same reason, Yechiel Leiter, Israel's ambassador to the US, recently revealed.
He said the flight was forced to take a longer path over US army bases to ensure it did not have to make an emergency landing over ICC members in Europe.
MEE asked the Italian, French, Greek and Croatian foreign ministries for comment on use of their airspace, but did not receive a response by the time of publication.