Three countries questioned over Netanyahu's flight permissions

The aircraft carrying Israeli Prime Minister Benjamin Netanyahu to the United States once again crossed the airspace of Greece, Italy, and France despite the International Criminal Court (ICC) arrest warrant issued against him, raising renewed questions about the three countries' obligations to cooperate with the court.

Speaking to Anadolu Agency, Dr. Abdurrahman Erol, a lecturer in international law at Istanbul Medeniyet University, assessed Netanyahu's use of European airspace in light of the Rome Statute, the ICC's founding treaty, and relevant court decisions, CE Report quotes Anadolu Agency.

Erol argued that granting overflight permission to Netanyahu's aircraft on the grounds of "diplomatic necessity" does not exempt those countries from their obligations under the Rome Statute.

"The precedent decisions issued by the ICC against Mongolia, Italy, and Hungary clearly show that diplomatic necessity or head-of-state immunity cannot legally justify non-compliance," he said.

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

Since then, Netanyahu's aircraft has repeatedly crossed the airspace of European countries that are parties to the Rome Statute during his visits to the United States.

While traveling to New York for the UN General Assembly in September 2025, Netanyahu's aircraft crossed Greek and Italian airspace but avoided France. On December 28, 2025, and again in February 2026, during trips to meet U.S. President Donald Trump, the aircraft crossed the airspace of all three countries.

Previously, European Commission Foreign Affairs spokesperson Anouar El Anouni reiterated the European Union's support for the ICC and the principles of the Rome Statute, calling on member states to fully cooperate with the court.

Obligation to cooperate with the ICC

According to Erol, Article 86 of the Rome Statute obliges state parties to fully cooperate with the ICC in investigating and prosecuting crimes within its jurisdiction.

He noted that Article 88 requires states to ensure that their domestic legal systems are capable of implementing all forms of cooperation requested by the court, including provisional arrests, while Article 89 obliges states to execute arrest and surrender requests in accordance with their national legal procedures.

"These three articles demonstrate that enforcing ICC arrest warrants is not optional but a binding legal obligation," Erol said.

He also recalled that the ICC's Pre-Trial Chamber, in its July 24, 2025 decision, found that Hungary had failed to meet its obligations under the Rome Statute by not arresting Netanyahu during his visit between April 3 and 6, 2025.

The chamber reiterated that states parties must cooperate fully with the court in good faith and in line with the purpose of the Rome Statute.

Erol said the ruling also confirmed that Article 98(1) of the Rome Statute does not give states the unilateral right to suspend cooperation simply because they consider an arrest request difficult to implement.

"This means that head-of-state immunity cannot be used as a defense before the ICC, and the suspect's official status does not constitute a valid reason to refuse arrest and surrender," he said.

What can the ICC do?

Erol pointed to Article 87(7) of the Rome Statute, which allows the ICC to refer a non-compliant state party to the Assembly of States Parties (ASP) if its failure to cooperate prevents the court from exercising its functions.

He noted that the ICC referred Mongolia to the ASP in an October 24, 2025 decision after finding that it had failed to arrest and surrender Russian President Vladimir Putin.

Similarly, the ICC unanimously ruled on October 17, 2025, that Italy had violated its obligation to execute the arrest warrant against Osama Njeem, and formally referred Italy to the ASP on January 26, 2026.

"The cases involving Hungary, Mongolia, and Italy demonstrate that the ICC actively uses both findings of non-compliance and referrals to the Assembly of States Parties against countries that fail to enforce its arrest warrants," Erol said.

However, he added that a finding of non-compliance does not automatically result in an ASP referral, as judges retain discretion in such decisions.

He noted that despite Netanyahu's use of European airspace in September and December 2025, the ICC did not refer those incidents to the Assembly.

States have authority over their airspace

Erol rejected any argument by Greece, Italy, or France that the aircraft merely transited their airspace without landing.

He explained that under international law, states have full sovereignty over the airspace above their territory, including territorial waters, meaning that no aircraft—civilian or state-owned—may enter or fly over a state's territory without prior authorization.

Although the Chicago Convention mainly governs civil aviation and excludes military, customs, diplomatic, and police aircraft, Erol said its sovereignty principles are widely recognized as customary international law and are often applied by analogy to state aircraft.

"This means that the aircraft carrying Netanyahu could not have crossed the airspace of Greece, Italy, or France without prior authorization from those countries," he said.

Erol concluded that, based on previous ICC cases involving Hungary, Mongolia, and Italy, Greece, Italy, and France could also face the possibility of being referred to the Assembly of States Parties for failing to execute the court's arrest warrant.

Photo: Israel PM's Office