To whom to be loyal: Israel or the ICC?

International Criminal Court prosecutor's request for arrest warrants for Benjamin Netanyahu and Yoav Galant puts European allies in an uncomfortable position and deepens divisions over the Gaza war

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Benjamin Netanyahu and Joav Galant, Photo: REUTERS
Benjamin Netanyahu and Joav Galant, Photo: REUTERS
Disclaimer: The translations are mostly done through AI translator and might not be 100% accurate.

The request by the Prosecutor of the International Criminal Court (ICC), Karim Khan, to issue an arrest warrant for Israeli Prime Minister Benjamin Netanyahu has created a diplomatic dilemma for some key member states: How to support both Israel and the International Criminal Court?

Khan's move on Monday, the first of its kind against a sitting Western-backed head of state, has yet to be considered by ICC judges who can modify, reject or approve it. However, his actions in the context of the globally controversial Israeli-Palestinian conflict have caused some of the ICC's most vocal supporters to question the extent of their loyalty.

Prosecutors announced their plans in advance to individual capitals, including Paris, London and Berlin, allowing governments to coordinate responses. However, Reuters points out that many refused to say what they would do if arrest warrants were issued for Israeli leaders because of the war in Gaza.

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photo: Graphic News

"Of course it gets us into trouble for several reasons," a German government official who wished to remain anonymous told the British agency, citing Berlin's simultaneous political commitment to Israel's security and support for the independent prosecutor of the ICC.

Germany has already defended its policy of sending weapons to Israel before another international court in The Hague, and an arrest warrant for Netanyahu would bring unwanted additional political pressure, diplomatic sources claim.

It could also undermine German efforts to bolster support for the ICC in Washington, a government source told Reuters.

US President Joe Biden called Khan's targeting of Israeli officials "outrageous" and said there was no equality between Hamas and Israel, while Secretary of State Anthony Blinken said the Biden administration was ready to work with Congress to potentially impose sanctions on ICC officials.

Reuters reminds that the war in Gaza broke out after Hamas extremists invaded southern Israel on October 7 and killed 1200 people and took 250 hostages. In the Israeli invasion that followed, according to the authorities in Gaza, over 35 Palestinians were killed, over 000 are missing and most of the enclave was razed to the ground.

It would be particularly harmful if European countries did not comply with arrest warrants, because they have always been among the most active supporters of that International Criminal Court, said Anthony Dworkin.

Khan sought arrest warrants for Netanyahu, Israeli Defense Minister Yoav Galant and three Hamas leaders for war crimes and crimes against humanity in the conflict.

The divisions in Europe over Khan's decision reflect a deepening international rift over the Palestinians' long-standing quest for statehood, which came to the fore on Wednesday when three European nations said they would recognize it.

All 27 members of the European Union are members of the ICC, and the European head of diplomacy, Josep Borrell, pointed out that they are "obliged to carry out the court's decisions".

However, Khan's move exposed political disagreements between European powers over the Gaza conflict and their efforts to uphold international justice.

Prosecutor of the ICC - Karim Kan
Prosecutor of the ICC - Karim Kanphoto: Reuters

Britain, an ICC member since 2001 that supported Khan's bid to become a prosecutor, has been looking for ways along with other Group of 7 members to prevent the ICC from issuing "problematic" warrants for the Israelis, a diplomatic source told Reuters.

"I do not believe in the slightest that the request for a warrant will help in the release of the hostages, it will not help in humanitarian efforts and it will not help in establishing a sustainable truce," said British Foreign Minister David Cameron in Parliament on Tuesday.

"And as we have said from the beginning, since Israel is not a signatory to the Rome Statute charter that established the ICC and because Palestine is not recognized as a state, we believe that the court has no jurisdiction in that area," he added.

Although Israel is not a member of the ICC and rejects the court's jurisdiction, the court admitted the Palestinian territories in 2015 and Khan claims his prosecution has jurisdiction over the October 7 events in Israel and the Gaza Strip.

Italian Foreign Minister Antonio Tajani told local television on Monday that he opposes equating Hamas's crimes on October 7 with the military response of a democratically elected government.

He told the newspaper "Corriere dela sera" on Tuesday that the request for an arrest warrant could "incite anti-Semitism." An official of the Italian Ministry of Foreign Affairs said that a coordinated response from European countries is unlikely due to the different positions of the ICC and Israel.

Irish Foreign Minister Michael Martin said that "it is of crucial importance that we respect the independence and impartiality of the ICC", while Czech Prime Minister Petr Fijala said that the prosecutor's request was "astounding and completely unacceptable".

In a statement, France stated that for months it has been "warning for strict respect for international humanitarian law, and especially for the unacceptable level of civilian casualties" in Gaza.

The French Ministry of Foreign Affairs added that it "supports the International Criminal Court, its independence and the fight against impunity in all situations."

Jolanda Díaz, Deputy Prime Minister of Spain, welcomed the ICC prosecutor's request as "good news" on social networks. "International law must apply to everyone. We have been calling for support for their investigation for months."

Spain's cooperation with ICC arrest warrants is based on domestic law and their execution is "automatic" through Interpol, a government source who asked to remain anonymous told Reuters.

Israeli and Palestinian leaders rejected the allegations of war crimes, and representatives from both sides criticized Khan's decision.

Anthony Dworkin, senior policy fellow at the European Council on Foreign Affairs, said the warrant request itself could limit travel plans for Netanyahu and Galant.

All 124 member states are obliged to arrest fugitives wanted by the ICC, he added.

"It would be particularly harmful if European countries did not respect arrest warrants, because they have always been among the most active supporters of that court," he said.

"Crucial to the credibility of European claims to support the rule of law is that European officials do nothing to undermine or condemn the actions of the ICC, or suggest that democratic countries should be above the law."

The ICC does not have a police force, so the arrest of suspects must be carried out by member or cooperating states. In 2015, South Africa allowed then-Sudanese leader Omar al-Bashir to leave despite being wanted by the ICC for alleged war crimes and genocide.

The Netherlands, a vocal ally of Israel that hosts several international courts in The Hague, declined to answer specific questions from Reuters about whether it would comply with possible arrest warrants in the conflict between Israel and Hamas.

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