The chief prosecutor of the International Criminal Court wants to obtain an international arrest warrant against Israeli Prime Minister Benjamin Netanyahu. This would lead to a major dilemma for the federal government.
Karim Khan got Germany into trouble. The Briton is chief prosecutor at the International Criminal Court in The Hague and in this capacity on Monday submitted an application for arrest warrants against three Hamas leaders as well as against Israeli Prime Minister Benjamin Netanyahu and Defense Minister Joav Gallant. Khan accuses those responsible for Hamas of bearing “criminal responsibility for the murder, destruction and taking of hostages” in connection with the attacks on October 7th, according to a statement from the chief prosecutor.
Netanyahu and his defense minister are suspected of using “starvation of civilians as a method of warfare” in the military offensive that followed, thereby committing a war crime “along with other attacks and collective punishments against the civilian population in Gaza.”
For the German government and Chancellor Olaf Scholz (SPD), there is a real dilemma lurking in the process. Germany has always been one of the tribunal’s biggest supporters and is one of its main financiers. In 2023 alone, Germany paid around 20 million euros in contributions. Only Japan has more. If the federal government distances itself from the chief prosecutor, it weakens the entire body. If it does not do this, it will move away from its previous position of unconditional support for Israel.
The International Criminal Court in The Hague, Netherlands.
© Bjorn Trotsky
The Foreign Office tried on Monday to circumvent the problem for the time being with the most diplomatic wording. It had an unnamed “spokesman” declare by simultaneously applying for arrest warrants against Israel’s head of government Netanyahu and Defense Minister Galant on the one hand and three Hamas leaders on the other “gave the inaccurate impression of an equation.” The same statement stressed that Germany respects the independence of the court.
Legal expert sees great chances for an arrest warrant
But that doesn’t solve the dilemma. The three judges of the ICC’s Pre-Trial Chamber must now decide whether arrest warrants will be issued. This is likely to happen in the next one to three months.
Stefanie Bock, professor of international criminal law at the Philipps University of Marburg, believes that Karim Khan’s chances of having his applications approved are great. “The prosecutor has relatively strong arguments that could also convince the chamber.” Especially since there only needs to be sufficient suspicion for an arrest warrant, but not compelling evidence.
If the pre-trial chamber admits the applications, this would also have consequences for German-Israeli relations. The court itself does not have the ability to execute arrest warrants. However, its contracting states are obliged to arrest the accused and transfer them to The Hague if they enter their territory.
Germany took a clear position on the arrest warrant against Putin
When the ICC issued an international arrest warrant against Russian President Vladimir Putin in spring 2023, Federal Justice Minister Marco Buschmann (FDP) immediately publicly assured that the Russian president would of course be arrested if he entered German territory.
If Netanyahu came to Germany for a state visit after an arrest warrant was issued, he would theoretically have to be arrested here too. Germany would probably never do that. But: “It would be a violation of the obligations to cooperate,” states Stefanie Bock: “This could be reprimanded both before the Court of Justice itself and in the Assembly of the Contracting States and – at least in theory – sanctioned by the Security Council.”
But the political damage would be even more serious: With this refusal, Germany would undermine the court’s authority to such an extent that it would probably no longer be of any greater relevance in the future. Like the USA, Israel is one of those countries that has never recognized the ICC. In contrast to the Palestinians.
Possible visits by German politicians to Israel would not be quite as sensitive, but would also be difficult. Theoretically, this would still be possible: “No cooperation obligations would apply to visits to Israel,” says Stefanie Bock. However, this would raise questions about the double standards of German foreign policy.
Volker Beck doubts the jurisdiction of the court
But does the International Criminal Court even have the authority to bring charges against Netanyahu?
Volker Beck, President of the German-Israeli Society, doubts the jurisdiction of the International Criminal Court. “The chief prosecutor is trying to ignore Article 17 of the Rome Statute,” Beck told the star. Article 17 stipulates that the ICC only has jurisdiction if the responsible state is “unwilling or unable” to “seriously carry out the investigation or prosecution”. The same cannot be said for Israel, says Beck: “The Israeli judiciary has not shied away from indicting politicians and high-ranking military officials in the past.”
Beck is therefore calling on the federal government to take a clear position: “Germany must now make it clear that the chief prosecutor’s request for an arrest warrant against Netanyahu is legally unacceptable at this point in time. Nobody is better suited for this than our foreign minister; after all, she comes from international law .”
Legal expert Stefanie Bock comes to a different assessment. “Proceedings before the ICC are only inadmissible if a state itself carries out serious investigations.” Israel could submit a request in The Hague for the proceedings against Netanyahu to be postponed, but at the same time it would have to initiate proceedings against the prime minister itself. In the current situation, that would be a devastating signal for Israel in terms of both domestic and foreign policy.
There are only two ways out for the federal government
According to Stefanie Bock, the second argument often put forward against the admissibility of the charge, according to which the Palestinians do not represent their own state, is also wrong: “The Palestinian leadership recognized the statutes of the ICC in 2015. In 2021, the Court decided that the Palestinians were thus in are included in the circle of contracting states and are treated as a contracting state in the event of violations of international law in the West Bank and the Gaza Strip.”
In this messy situation, the federal government only has two options: that in the end there is no arrest warrant against Netanyahu. Or that in the event of an arrest warrant, Netanyahu would not entertain the idea of traveling to Germany.