What the Netanyahu warrant can teach us about international law

Whether on purpose or out of ignorance, the International Criminal Court's (ICC) arrest warrants for Israeli Prime Minister Benjamin Netanyahu and his former defence minister Yoav Gallant, have been received with an avalanche of false information and twisted facts in social and traditional media. In the German newspaper Die Welt, Remko Leemhuis, director of the American Jewish Committee in Berlin, expressed outrage that there is not even an ICC arrest warrant out for "the butcher Bashar al-Assad." 

He is right about that. However, this is not due to double standards in international justice, as Leemhuis suggested, but rather because Syria is simply not a member of the ICC. The ICC could only prosecute Syrian crimes if the UN Security Council were to take action, something Russia and China have been preventing for years. Israel has not committed itself to the ICC's Rome Statute either, but because Palestine has been an ICC member since 2015, the court can investigate possible crimes in the Gaza Strip and the West Bank.

Leemhuis also failed to mention that numerous proceedings are ongoing, or have already been concluded, against the now deposed Assad and members of his secret services and militias. States such as Germany and France have been using the "principle of universal jurisdiction" to circumvent the ICC's inaction in Syria for years. 

This principle allows states to prosecute particularly serious crimes and contraventions of international law, such as genocide, war crimes or crimes against humanity, even if they were committed outside their territory and if the perpetrators or victims come from another state.

The principle of universal jurisdiction has been experiencing a resurgence in recent years. It is often praised as a means of preventing impunity concerning the most serious crimes because it can be used regardless of the cooperation of the governments concerned. Germany, in particular, has presented itself as a global pioneer in the enforcement of international criminal law, with its commitment to prosecuting Syrian perpetrators. The principle of universal jurisdiction has been applied most frequently in Germany, followed by France.

No investigations into Guantánamo and Abu Ghraib

Yet it is precisely these two states that have reacted particularly defensively to the arrest warrants against Netanyahu and Gallant, which were issued by the ICC in November. Germany is currently not using the principle of universal jurisdiction for its own investigations into possible crimes against international law in Gaza—unlike in the cases of Syria and Ukraine.

This raises the old question of whether states only promote international criminal law when it serves their political interests. It also makes clear that the ICC is indispensable for the credibility of international law, as it binds its 124 member states—regardless of their political interests—to obligations under international law.

The advantage of the universal jurisdiction principle is that, unlike the ICC, it is not tied to any territory and can also prosecute potential perpetrators from countries that have not committed to it. In its broadest interpretation—which is the law in Germany—all that is needed is the will of the state to investigate.

But this is precisely where the weakness of the universal jurisdiction principle lies: in practice, states can decide on a case-by-case basis whether they want to take action. Legal scholar Maximo Langer, who has researched the trend towards universal jurisdiction, argues that "states have strong incentives to focus on defendants who cost them little in the area of international relations."

The experiences of the last two decades show us exactly where the principle of universal jurisdiction reaches its limits. Between 2004 and 2007, survivors and civil society organisations attempted to hold members of the US government accountable for possible war crimes, torture and other crimes in the military prisons of Guantánamo and Abu Ghraib.

Three criminal complaints were filed against former US Defence Secretary Donald Rumsfeld, former CIA Director George Tenet and senior military officials, in Germany and France. However, the prosecuting authorities of both countries decided not to open investigations.

"International crimes are often committed by state officials", writes Langer, "which makes it likely that the defendant's state of nationality will have its diplomats lobby and threaten reprisals against the prosecuting state."

Spain and Belgium also arguably limited their interpretation of the principle of universal jurisdiction in the 2010s so that they would not have to prosecute alleged perpetrators from China and the United States. The governments of those two powerful states had previously threatened them with severe political and economic consequences.

Germany is losing credibility

When Germany's federal prosecutor in Karlsruhe used the principle of universal jurisdiction to bring former officers from Syria or ex-militiamen from Gambia to trial, it had no serious foreign policy consequences for Germany. Rather, it promoted the image of Germany as a country that has overcome its own history of injustice and is now ensuring justice in other countries.

In contrast, there are few prosecution cases that would cost Germany more diplomatically than those against alleged perpetrators from Israel. The fact that Germany is not investigating does not, of course, mean that other states cannot take action, but given the financial and diplomatic hurdles involved, it is to only be expected that many will shy away.

"From our perspective, this is a double standard, a selective prosecution of international crimes," says Alexander Schwarz of the human rights organisation European Center for Constitutional and Human Rights (ECCHR) in Berlin.

The ECCHR is currently trying to persuade the federal prosecutor's office to conduct a so-called "structural investigation" into the Gaza war. Such structural investigations are not directed against specific suspects; instead, investigative authorities collect all available evidence to use later for individual charges.

The specific trigger is the case of a German-Palestinian family who were killed by Israeli air strikes in Gaza at the end of October. According to Schwarz, this is a possible war crime, but the federal prosecutor’s office does not see itself as responsible.

The situation was quite different after the large-scale invasion by Russia on Ukraine: "The federal prosecution initiated structural investigation proceedings just two weeks after the start of the large-scale invasion." More than a year after the start of the war in Gaza, however, there are no investigations, "but rather, a clear attitude of denial."

"We are losing the credibility that international criminal law needs in order to be effective," says Schwarz. For international criminal law to be perceived by victims and survivors as a trustworthy institution for overcoming and recognising the past, its authority must be credible. The basis of this credibility is a binding, consistent application of international criminal law regardless of the individual involved.

ICC under massive pressure

States such as Germany and France, which have expressed clear discomfort with cases concerning Israeli individuals, must nevertheless support the ICC.

Here, the binding nature of the Rome Statute of the ICC is a strength. However, it is for precisely this reason that the court may soon be subject to attacks which fundamentally threaten its existence. "The ICC will now very likely face the most massive opposition it has ever experienced," says Schwarz.

Back in May, the Guardian reported that former ICC Chief Prosecutor Fatou Bensouda had been spied on and threatened by Israeli intelligence for years after she opened an investigation into alleged war crimes in Gaza in 2014.

Even politicians from the USA, a country which is not itself a member of the ICC, threatened the court and its officials with sanctions following the latest arrest warrants, and called on states to withdraw their support. Meanwhile, Viktor Orbán assured Netanyahu that Hungary would not arrest him despite the country's ICC membership.

"One can only hope that the alliance of supporting states is large enough to withstand the attacks and threats," says Schwarz. The principle of universal jurisdiction may have been helpful in circumventing some political blockades, but if the ICC were to collapse under the pressure of powerful states and the refusal of its members, it would not be able to uphold a binding international legal order on its own."

Translated from the German original by Louise East.