After filing a criminal complaint with the International Criminal Court, Israel’s Prime Minister Benjamin Netanyahu has to fear an arrest warrant. This also puts Germany in a dilemma. In an interview, a lawyer explains the complicated case.
Karim Ahmad Khan has caused a sensation: the chief prosecutor of the International Criminal Court has filed a criminal complaint against the Hamas leadership, but also against the Israeli government, in connection with the Gaza war. Among those directly mentioned are Israeli Prime Minister Benjamin Netanyahu and Defense Minister Joav Galant.
Christoph Safferling explains what consequences the two face. He is a professor of criminal law, criminal procedural law, international criminal law and public international law at the Friedrich-Alexander University of Erlangen-Nuremberg.
FOCUS online: What happens next after the criminal complaint against Netanyahu?
Christoph Safferling: The court’s rules stipulate that a pre-trial chamber consisting of three judges now examines the criminal complaint. She could then issue an arrest warrant. The basis for the examination is the evidence presented by the Chief Prosecutor of the International Criminal Court.
In addition to reasonable suspicion, an additional reason for detention is required. One looks at whether it would be guaranteed that the person being sought would actually appear in court in The Hague at a hearing, or whether no evidence could be compromised in advance. The situation with a prime minister is certainly different than with the Hamas leaders who have gone into hiding.
How likely is it that the International Criminal Court will actually issue an arrest warrant against Netanyahu?
Safferling: It is not a given that an arrest warrant follows an application – especially not when it comes to a high-ranking politician, as in this case the Prime Minister of a fundamentally democratic state. However, this position is not an obstacle. There is evidence that the Israeli army may actually be responsible for war crimes. It is not entirely unlikely that Netanyahu will have to fear an arrest warrant.
If Netanyahu is not going to go into hiding anyway, what would an arrest warrant achieve?
Safferling: I think the main thing is that the chief prosecutor wants to send a signal. Both Hamas and Israel’s government: stop committing crimes and improve the humanitarian situation.
What role does it play in the proceedings that Israel does not recognize the International Criminal Court?
Safferling: None, the court has declared itself responsible. Because Palestine joined the International Criminal Court and it recognized the accession. Anything that happens in Palestinian territory such as the Gaza Strip can be investigated by the court.
So Israel has no way to prevent the investigation?
Safferling: Yes, theoretically there is a way. Because the International Criminal Court is a so-called complementary court. It only intervenes when national law enforcement agencies are unwilling or unable to prosecute international crimes.
So far, no one in Israel has taken action in this case. But if Israel’s public prosecutor’s office proved willing and able to investigate the situation under international law, the International Criminal Court would have to withdraw. But it is difficult to imagine that this would be a viable option for Netanyahu.
Assuming that an arrest warrant is actually issued against the Israeli Prime Minister – what would that mean for him?
Safferling: The International Criminal Court has 124 member states. If he travels to one of them, he would have to be taken into custody there and transferred to The Hague. For example, he would be very limited in his choice of state visits.
You can see this in the case of Vladimir Putin, against whom there is an arrest warrant. For example, he was unable to travel to a summit of the BRICS states in South Africa last year because he would have been threatened with arrest. But Putin is still firmly in the saddle despite the arrest warrant.
However, Netanyahu has a much greater interest in continuing to cooperate with Western states than Putin. In this respect, an arrest warrant would probably hit him harder.
So it could happen that Netanyahu has to be arrested during a state visit to Germany?
Safferling: Yes, that is a dilemma for Germany. On the one hand, there is the reason of state to stand up for Israel’s security, but on the other hand there is the legal obligation and also the commitment to cooperate with the International Criminal Court.
But you have to look at this differently: the case against Israel is not about Israel being in a self-defense situation and defending itself against Hamas attacks with weapons. Germany can therefore support Israel on this issue. Rather, the question now is how the humanitarian situation is taken into account in the war. Israel has to put up with criticism, Baerbock has already said that.
With this controversial procedure, is the International Criminal Court not making itself a pawn in a heated political debate?
Safferling: First of all, you should take the chief prosecutor’s application seriously and investigate his allegations. The prosecutor and the court are independent and committed to the rule of law tradition.
But the problem of the court being vulnerable to politically debatable decisions has existed since it began operating in 2002. In the case of Uganda, for example, it was criticized for failing to investigate the army’s crimes and cooperate with the government during the trial the focus has been on the crimes of the resistance.
In the current case, the court is trying to avoid this criticism by investigating both the Hamas leadership and the Israeli government. But this has now also been criticized. In a sense, the International Criminal Court cannot please everyone.