Germany’s dilemma at the ICC

A thriller is unfolding at the International Criminal Court (ICC) in The Hague. It stars a chief prosecutor who wants to see an arrest warrant issued for the Israeli head of government as soon as possible; judges who have a decision to make, but have not yet done so; and Benjamin Netanyahu, who has confidently stated that it is not he who should be afraid, but the chief prosecutor. In the midst of all this, the German government assures us that it stands with Israel, as well as with international law. 

In late August, ICC prosecutor Karim Khan urged judges to immediately respond to his request for issue arrest warrants against Netanyahu, his defence minister Yoav Gallant, Hamas leader Yahya Sinwar and Mohammed Deif, the head of Hamas's military wing the Qassam Brigades. Last Friday, the court dropped its proceedings against former Hamas leader Ismail Haniyeh “due to a change in circumstances resulting from his death” in Iran on 31 July in an attack attributed to Israel. Last week, the Israeli newspaper Haaretz reported that a decision would be reached within a few days or weeks at the most.

And it’s about time. More than three months have passed since Khan filed the application on 20 May. “Any unjustified delay in these proceedings detrimentally affects the rights of the victims,” Khan told the court in August. After all, it's alleged war crimes and crimes against humanity in Gaza that are at stake. 

The ICC has never issued an arrest warrant against a sitting minister, let alone the head of government of a democratic state – which Israel remains in the eyes of its supporters. This case raises the broader question of whether Western democratic states are actually interested in investigating war crimes if other Western states or their allies commit them. The difficulty many German politicians have in recognising human rights violations was demonstrated by CDU leader Friedrich Merz in May when he said that it would be a “scandal” if Netanyahu were to be arrested on German soil. 

Written observations flood the court

The German government has announced that it will back the ICC ruling in this case. That should be a foregone conclusion, "but with regard to Israel, this was by no means always the case in the past,” Katja Müller-Fahlbusch, Middle East Consultant at Amnesty International, told Qantara. In 2021, for example, Germany and the USA objected to an ICC investigation into alleged crimes committed in the occupied Palestinian territories.   

The ICC conducts investigations because Palestine is an official state party to the ICC, though the debate over Palestinian statehood means that the court's jurisdiction in the Palestinian territories is legally disputed. Israel, on the other hand, is not a state party to the ICC, nor is the USA. According to Article 12 of the Rome Statute, the court may investigate possible offences committed on the territory of a state party. 

In the arrest warrant proceedings against Netanyahu, Gallant, Sinwar and Deif, over sixty written observations have been received from states and other actors in the last few months, flooding the court and considerably delaying the proceedings. These external statements, known as amicus curiae observations, are not uncommon at the ICC but were previously not permitted in the context of arrest warrant proceedings. 

A German observation from 6 August called on the ICC to allow Israel itself to investigate possible war crimes in Gaza, or to grant it more time to do so. The German government argued that Israel is a constitutional state with a functioning legal system, and cited the principle of complementarity: the ICC should only intervene if a state is unwilling or unable to investigate serious criminal offences.   

Legal scholars are divided on whether this currently applies to Israel. Kai Ambos, Professor of International Criminal Law and Public International Law at the University of Göttingen, analyses the German position in Verfassungsblog, and finds a “strong, almost unconditional support for Israel, approaching a primacy of politics over law.” Observers suspect that Germany is attempting to obstruct or slow down the imminent issuance of arrest warrants, a claim the German government refutes. “I directly reject the insinuation that we are trying to delay anything at the International Criminal Court,” said a press spokesperson in July. 

The current proceedings are already taking an unusually long time. As a rule, only a few weeks pass between the application by the chief prosecutor and either the issuance of an arrest warrant or the termination of the proceedings. Sometimes it takes six weeks – as in the case of Saif al-Islam, son of the former dictator Muammar al-Gaddafi – sometimes it takes eight. The case against Vladimir Putin demonstrated how quickly things can move when there is political will from the donor states: his warrant was issued within three weeks. Previously, the EU had contributed over €7m to the ICC for investigations into Russian war crimes in Ukraine. 

Money buys influence

Funding the ICC is widely understood as a means of influencing the court. State parties themselves provide the necessary funds, and as the second largest contributor to the ICC, Germany plays a significant role. As political scientist Courtney Hillebrecht argues in her book ‘Saving the International Justice Regime’, restrictions on the funding of international courts allow state governments to demonstrate their commitment to international norms, while maintaining control behind closed doors. 

Speaking to Qantara, Hamburg-based lawyer and lecturer in international criminal law Mayeul Hiéramente adds: “The question of who the ICC's chief prosecutor investigates is primarily a legal issue. However, in times of limited budgets and insufficient cooperation between states, it is always also a political and strategic question.” 

One example: in 2016, a group comprising the ICC's largest donors, including Germany, called for the court's budget to be cut, pointing to the global financial crisis among other justifications for the decision. Shortly before, the then chief prosecutor Fatou Bensouda had expedited preliminary examinations in Palestine and Afghanistan. Jonathan O'Donohue, who worked as a legal advisor for Amnesty International, writes in Opinio Juris that it would be “naive” not to see a connection. 

“The Court's budget can be a bottleneck for criminal investigations,” summarises Hiéramente. In a report in the Journal of Human Rights from 2023 on the funding of the ICC, Kirsten Ainley and Eric Wiebelhaus-Brahm make it even clearer: “The Court seems to be at the whim of a group of state parties that attempt to manipulate its budget to achieve foreign policy goals rather than to fund it on a needs-basis to achieve its mandate." 

A cornerstone of German policy

Non-party states like Israel and the US go even further to exert influence: research by the Palestinian-Israeli magazine +972 and the British newspaper The Guardian has shown that Israel has been waging a “covert war” against the ICC for years. Employees, including former chief prosecutor Bensouda, were reportedly under surveillance and even received threats from the Israeli secret service. When the ICC announced in 2019 that it was investigating possible US war crimes in Afghanistan, the US sanctioned the investigators. The US House of Representatives also voted in favour of sanctions against the ICC in June because of the current arrest warrant proceedings. 

Germany's procrastination and reluctance to cooperate reveal a dilemma – Germany is caught between its solidarity with Israel and its commitment to international law. Statements in the case of South Africa's lawsuit against Israel before the International Court of Justice (ICJ), where Germany declared from the very start of the trial that the accusation of genocide “lacks any basis”, also reflect this. 

Müller-Fahlbusch warns: "Germany is weakening the credibility of international justice." In her eyes, Germany’s attitude to the ICC permanently damages the government’s human rights-based foreign policy. After all, "the rules-based order, and thus also international justice, is the other fundamental part of the German ‘reason of state’, and a cornerstone of German policy".