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22 May 2024

An ICC warrant for Netanyahu will divide Europe

A call for the Israeli leader’s arrest – just as Ireland, Norway and Spain move to recognise a Palestinian state – will widen Europe’s rift over Gaza.

By Wolfgang Münchau

On a visit to Oxford on 3 May, Josep Borrell, the European Union’s high representative for foreign policy, made a revealing comment: “Diplomacy is the art of managing double standards.” Nothing has exposed Europe’s double standards more brutally than the decision on 20 May by Karim Khan, the chief prosecutor of the International Criminal Court (ICC), to seek an arrest warrant for Benjamin Netanyahu, the Israeli prime minister, and his defence minister, Yoav Gallant, along with three Hamas leaders.

Europe’s hypocrisy stems from the fact that EU leaders enthusiastically supported Khan’s decision to seek an arrest warrant against Vladimir Putin in 2023, but refuse to support a decision that targets an ally. Khan knew that there would be a backlash against this latest measure, and warned ICC member states to treat a decision by the court with the same seriousness as they have done in other cases – a clear reference to Putin.

At the time of writing, the ICC judges have yet to decide whether to grant Khan’s request. But I see no reason why they should reject it, unless there are obvious investigative flaws in his report. The judges will almost surely not bow to political pressure from Israel’s allies. Why should the ICC be intimidated by the US, which never ratified the ICC’s founding statutes agreed in 1998? I presume, therefore, that the arrest warrants will be issued.

One hundred and twenty-four countries have ratified the ICC’s statutes, the UK and all EU members among them. But the US, Israel, Russia and China have not, and therefore the court has no jurisdiction over them: Netanyahu is safe in Israel, just as Putin is safe in Russia.

It is therefore unlikely that Putin or Netanyahu will ever appear in front of the ICC in The Hague. But the warrant affects their mobility. In August 2023, the Brics states – Brazil, Russia, India, China and South Africa – held a summit in South Africa. Putin had planned to attend in person, but Pretoria could not extricate itself from the legal obligation to have him arrested on arrival. In the end, the solution was for Putin to attend by video conference. Putin can continue to travel freely to China, but globally his freedom of movement is restricted to the countries that did not sign or ratify the ICC statutes.

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The same would be true for Netanyahu. As a head of government, he enjoys diplomatic immunity in the domestic courts of foreign jurisdictions, but that does not protect him from an ICC arrest warrant. He can visit the US – or Russia, if he wants – and pray that his plane is never forced into an emergency landing in an ICC member state. An arrest warrant would mean no more visits to Europe – ever. If he decided to visit a Holocaust site in Germany, German police would be obliged to arrest him and hand him over to the ICC. Of all imaginable diplomatic nightmares for Germany, it is hard to think of one that’s worse.

An arrest warrant against Netanyahu would have serious consequences for Europe, too. If the Israeli leader was found guilty of war crimes, where would that leave Europeans who supplied weapons to him? I don’t think EU leaders are themselves at risk of being subjected to a war-crimes trial, but they could face risks under their own laws and from their own electorates.

An arrest warrant would also widen the divisions within the EU. Its member states have been split between staunch supporters of Israel, such as Germany, and those that are closer to the Palestinians. On 22 May, Ireland, Norway and Spain announced plans to recognise a Palestinian state from 28 May. Malta and Slovenia are expected to follow suit. Days before the ICC prosecutor’s decision, Spain’s prime minister, Pedro Sánchez, said that the EU should insist on respect for international law – from both Russia and Israel. A warrant may also widen the gulf between the EU and the US, if America extends its support for Israel – for example by moving against a two-state solution.

Europeans are still in denial. The German media had real trouble reporting on the ICC warrants. Some media outlets pushed it down their homepages online, burying it under Bayern Munich’s latest difficulties in finding a manager. Karl Nehammer, the Austrian chancellor, released a statement saying, “We fully respect the independence of the ICC,” only to qualify that it was incomprehensible for the court to go after the leaders of Israel and Hamas at the same time. In politics, comprehension matters – or the lack of it, in Nehammer’s case. International law does not care whether you understand it or not.

I, too, have concerns about the ICC’s actions, but for different reasons. Arrest warrants add an additional layer of complexity to the already difficult task of finding diplomatic solutions to end wars. For example, if there is ever a deal between Russia and Ukraine, it will surely include the lifting of sanctions. It may involve the de facto but not de jure recognition of Crimea as Russian, and maybe some territories in eastern Ukraine as well. But no amount of diplomacy can grant Putin – or Netanyahu, for that matter – immunity under international law. They will always be in danger of arrest. This is a feature, not a bug, of the system. But it has a cost.

As an arrest warrant constitutes the ultimate travel ban, any negotiations would have to happen on Russian or Israeli soil, or on the soil of another non-ICC signatory. And perhaps the biggest downside is that the warrant ultimately reduces an indicted leader’s incentives to seek a deal: as long as a conflict continues, the leader is at least in a position of power at home. Once the fighting stops they are far more vulnerable, especially if ejected from office by rivals. So one of the consequences of issuing a warrant could be a longer war – and more opportunities for war crimes.

For now, I believe the best chance for Europe’s leaders to extricate themselves from this mess is to acknowledge the hypocrisy, as Josep Borrell did in Oxford, and choose between two potential courses of action.

One is continued support for multilateralism and moderation, and the primacy of international law. In that case, the EU would need to apply the same standards to Ukraine and to Israel, and accept the court’s decision. The other is for the EU to become a geopolitical power that puts its own interests ahead of everyone else’s – as the US and China did in their refusal to ratify the statutes of the ICC. A more unified, powerful EU might leave the ICC.

I used to advocate the geopolitical route, but I don’t see sufficient political will and unity behind it in the EU. It would require a treaty change for starters, to create a political union with majority voting on foreign policy, a lot more defence spending, the integration of defence procurement into the single market and the confidence to say no to the US. A geopolitical EU would have strategic partners, but it would not define itself through them. These two approaches to EU foreign policy are incompatible. The problem is that Europe wants it both ways.

[See also: The shocking death of Iran’s president]

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This article appears in the 22 May 2024 issue of the New Statesman, Spring Special 2024