Netanyahu flight through Europe raises questions over ICC obligations of Rome Statute states

Israeli Prime Minister Benjamin Netanyahu’s aircraft crossed the airspace of Greece, Italy and France on its way to the US despite an International Criminal Court (ICC) arrest warrant, raising questions over the three Rome Statute states parties’ obligations to the court.

"Granting Netanyahu transit permission on the grounds of 'diplomatic necessity' does not exempt these countries from their obligations under the Rome Statute," Abdurrahman Erol, an international law expert at Istanbul Medeniyet University, said.

He said ICC precedent decisions concerning Hungary, Mongolia and Italy make clear that neither diplomatic necessity nor head-of-state immunity justifies non-compliance with the court's arrest warrants.

The ICC issued arrest warrants for Netanyahu and former Israeli Defense Minister Yoav Gallant on Nov. 21, 2024, over alleged war crimes and crimes against humanity in the Gaza Strip.

Since then, Netanyahu’s aircraft has repeatedly crossed the airspace of Rome Statute states parties during visits to the US.

States have authority over foreign aircraft in their airspace

Erol said Articles 86, 88 and 89 of the Rome Statute require states parties to fully cooperate with the ICC, including carrying out arrest and surrender requests, making compliance with ICC warrants a binding legal obligation rather than a matter of discretion.

He recalled that the ICC has previously found Hungary, Mongolia and Italy in breach of their obligations for failing to execute arrest warrants and, in some cases, referred them to the Assembly of States Parties (ASP).

According to Erol, the argument that Netanyahu’s aircraft merely crossed the airspace of Greece, Italy and France without landing does not remove questions over their legal responsibilities.

He said states exercise sovereignty over their airspace and foreign state aircraft require authorization to enter or fly over it.

"The referral processes faced by Hungary, Mongolia and Italy for failing to execute ICC arrest warrants stand as a reminder that Greece, Italy and France could face similar proceedings on the same legal grounds," he added.