Germany should detain Netanyahu.

Germany needs to detain Netanyahu.

A request for an arrest warrant in The Hague against Israel's Prime Minister Benjamin Netanyahu has caused a stir. International law expert Christoph Safferling from the University of Erlangen-Nuremberg discusses the situation in an interview with ntv.de, sharing what the next steps of the International Court of Justice might be and why Israel's right to self-defense remains unchanged.

ntv.de: Karim Khan, the chief prosecutor at the International Criminal Court (ICC), has sought an arrest warrant not only against three top Hamas members but also against Prime Minister Netanyahu and Defense Minister Joaw Galant. What transpires next?

Christoph Safferling: A pre-trial chamber will review the evidence presented by the chief prosecutor, carefully examining whether there is a legitimate suspicion that war crimes and crimes against humanity were committed by the two Israeli politicians. This process isn't automatic but requires careful consideration.

How long does this usually take?

It's hard to predict. Probable approval isn't immediate, but probably not within a day either.

The chief prosecutor alleges serious crimes in the Gaza Strip on Israel's part, such as using starvation as a weapon of war or deliberate attacks on civilian populations. However, Israel claims it's defending itself following the massacres of October 7.

Israel's right to self-defense remains valid. Hamas still attacks Israel and the hostages haven't been released yet. The allegations concern a separate matter, namely whether Israel is responsible for the current humanitarian situation in Gaza and should, therefore, improve it. This is an essential aspect of international law, to improve the situation of those not at fault for the war. Given the current catastrophic humanitarian situation, with aid supplies not reaching those in need, suspicions of wrongdoing arise.

Is this also a genocide accusation, as seen at pro-Palestinian protests?

No, this accusation wasn't presented here.

How might arrest warrants issued by the ICC improve the humanitarian situation?

Firstly, the simultaneous applications send a strong political message: war crimes and crimes against humanity must cease, and the humanitarian situation must improve. All parties must take this seriously. If issuance of arrest warrants happen, legal consequences follow: ICC member states must arrest the person wanted under arrest warrant should they show up on their territory. It signals a commitment to international law and its enforcement.

How would Germany respond if an arrest warrant for Netanyahu was issued, and he visited?

Since Germany is an ICC member state, it's obligated to cooperate. Netanyahu would have to be detained and transferred to The Hague.

That's challenging to envision. Germany has Israel as a close ally and even considers Israel's security as national interest.

A dilemma does arise, undoubtedly. But being on the side of the rule of law means abiding by it even in cases where it might personally affect your allies.

However, the ICC has no enforcement powers.

True, its authority is limited to exerting political pressure.

If there's a warrant for Netanyahu's arrest and he arrives in Berlin, can he expect to be arrested?

Germany isn't in a position to detain him within its borders. Unlike Palestine, Israel is not an ICC member, so Netanyahu faces no serious legal threat from the ICC directly. But he could act to clarify the accusations, for instance, by going to The Hague but not staying there. There's also the possibility of having the offense withdrawn, provided Israel improves the humanitarian situation in the Gaza Strip.

Can Israel influence the proceedings?

If Israel is resolved and capable of conducting its own proceedings under international law, the ICC would have no legal grounds for intervening. But current reactions don't seem to suggest this.

Germany's Foreign Office criticized the Chief Prosecutor for giving an "inaccurate impression of equivalence" by filing the applications against Netanyahu and Galant concurrently to those against Hamas leaders. Do you share this view?

The optical equivalence is apparent. Yet, legally, nothing is comparable. Each arrest warrant is assessed based on the charges.

The USA is critical of the ICC's decision, while Netanyahu claims the chief prosecutor is "pouring oil on the fire of anti-Semitism." Is the court in The Hague under scrutiny or might the proceedings strengthen its independence?

The outcome is undetermined. Still, supporting a fair and independent judging process benefits the court's image and demonstrates respect for the rule of law.

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Takeaways

The ICC's pre-trial chamber will investigate the evidence put forth by the chief prosecutor.
The court's role isn't to judge rivals equally, but to conduct individual proceedings based on the presented charges.
An arrest warrant against Netanyahu would create legal obligations for ICC member states, requiring them to arrest those wanted, both politically and legally.
International law demands improving the humanitarian situation, especially for those not responsible for the conflict.
Israel's right to self-defense is intact against Hamas's attacks and hostage situations.
Improving the Gaza Strip's humanitarian situation can help reduce legal threats against those named in arrest warrants.
In the event of a warrant for Netanyahu and Galant, Germany must comply, despite their being close allies, in order to uphold the rule of law.
The ICC has limited enforcement powers and relies on political pressure.
The potential effect of the arrest warrants is yet undecided. They could make international law more relevant or undermine its credibility.