“If you are encouraging a party to undertake a war crime you become complicit in that crime itself.”
Unlike the United States and Israel, most Western European countries — including Germany, France, the United Kingdom, Italy and Spain — are signatories to the Rome Statute of the International Criminal Court, or ICC. As such, while lawmakers in Israel and the US can talk about ignoring or sanctioning* the ICC over its chief prosecutor’s decision to apply for arrest warrants for Israel’s PM Benjamin Netanyahu and Defence Minister Yoav Gallant, many governments in Europe are torn between their blind loyalty to Israel and their responsibilities as States Members of the ICC.
An interesting case in point is Berlin, which is until now one of the ICC’s biggest financial donors. But the German government is also a fervent supporter of Israel, which it calls its “reason of state” — a lingering legacy of the systematic murder of millions of Jews under the Nazi regime. As Deutsche Welle reported a few days ago, while the Biden administration can ridicule The Hague’s request as “outrageous”, Germany’s position is more complex. The Scholz government must choose between supporting The Hague or Netanyahu — that is, between obeying international rules or standing by a close ally:
At the regular government press conference on Wednesday, Chancellor Olaf Scholz’s spokesperson, Steffen Hebestreit, made it clear just how difficult it is for the German government to take a clear position in this case. Visibly tense, Hebestreit initially had to counter rumors on Wednesday that Scholz was “shocked” by the chief prosecutor’s announcement.
Hebestreit said: “I cannot report any shock or anger. We have made it very clear that we take a very critical view of the equation [of Netanyahu with Hamas]. And we pointed out differences in terms of how the state of Israel, its independent judiciary, is constituted…”
Another problem for Berlin is that Netanyahu’s government is increasingly isolated on the world stage and even within Israel itself, as an editorial in the FT acknowledges:
The International Court of Justice ordered Israel to halt its assault on the southern Gaza city of Rafah. Ireland, Norway and Spain committed, meanwhile, to recognise Palestinian statehood — a symbolic blow against an Israeli leader who rails against any talk of a two-state solution. This should be a wake-up call, a moment for moderate Israelis to realise that, despite worldwide sympathy over Hamas’s horrific October 7 assault, their far-right government’s actions are driving the country into greater isolation.
Some EU governments, including France, Belgium and Slovenia, have publicly expressed support for the ICC Prosecutor’s application for arrest warrants against leaders from Israel and Hamas for alleged war crimes and crimes against humanity. Belgium’s deputy prime minister has even called for the imposition of EU sanctions on Israeli imports. Others have slammed the ICC chief prosecutor’s decision. They include Hungary’s Foreign Minister Gergely Gulyas who said that Netanyahu can rest assured he would not be arrested or extradited if he entered Hungarian territory.
War Crimes Complicity
If granted, the ICC Chief Prosecutor Karim Khan’s application for arrest warrants for Netanyahu, Gallant and three Hamas leaders could have implications far beyond Israel and Palestine. If the ICC ends up ruling that the actions of Netanyahu’s government and the IDF in Gaza do indeed constitute war crimes and/or crimes against humanity, it opens up the possibility of Western leaders and ministers being prosecuted on charges of complicity in those crimes.
For the moment, it is only a possibility, and probably a slim one at that. Much will depend on whether the ICC’s judges actually issue the arrest warrants for Netanyahu and Gallant. The US government is mobilising all of its reserves of soft and hard power, including the threat of sanctions, to try to ensure that does not happen.
There is also the question of enforcement: as the ICC itself notes, it does not have its own police force or enforcement body and thus “relies on cooperation with countries worldwide for support, particularly for making arrests, transferring arrested persons to the ICC detention centre in The Hague, freezing suspects’ assets, and enforcing sentences. It is far from clear whether that cooperation will be forthcoming from many Western jurisdictions.
All that being said, the mere fact that the ICC’s chief prosecutor has applied for arrest warrants for Israel’s prime minister and defence minister is without precedent. Since its inception in 2002 the ICC has only ever conducted trials against African governments while sparing Western leaders from criticism. This has prompted accusations that the court is being used as “a tool of Western neo-colonial politics,” notes Alfred de Zayas, an expert in international law and former Special Rapporteur to the the UN Human Rights Council:
This is evidenced by its failure to indict Western political and military leaders, notwithstanding well-documented legal briefs submitted to three Prosecutors, particularly concerning war crimes and crimes against humanity in Afghanistan and Iraq, including torture in Abu Ghraib, Mosul, and Guantanamo.
De Zayas warns that after all that has happened, if the ICC judges fail to indict Netanyahu and Gallant, as recommended by Prosecutor Khan, “it risks a massive departure of members of the Statute of Rome,” especially those from Africa, and could even be the “final nail in the ICC’s coffin.” If, on the other hand, the indictments are granted, it could trigger the departure of a number of Western countries from the ICC…
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Nick Corbishley 