Merz wants to invite Netanyahu – but international law could prevent this

Berlin. Israel's Prime Minister Benjamin Netanyahu was one of the first foreign leaders to congratulate CDU leader Friedrich Merz on his election victory. Merz had announced an invitation to Germany, Netanyahu announced afterwards. The problem: The International Criminal Court (ICC) in The Hague has issued an arrest warrant for the Prime Minister because of Israel's actions in Gaza - there is suspicion of war crimes and crimes against humanity.

Merz has declared that ways and means will be found to allow Netanyahu to visit Germany without being arrested. The idea that an Israeli prime minister cannot visit Germany is an "outlandish idea". Christoph Safferling, Professor of Criminal Law and International Law at the Friedrich-Alexander University of Erlangen-Nuremberg and Director of the International Nuremberg Principles Academy, assesses the situation.

Mr. Safferling, Friedrich Merz has announced that, as Chancellor, he will invite Israel's Prime Minister Benjamin Netanyahu to Germany. He will find "ways and means" for such a visit, even though the International Criminal Court (ICC) has issued an arrest warrant against Netanyahu. What ways and means are conceivable?

None. As a member state of the International Criminal Court, Germany is obliged to cooperate. This is clear from the statute. Anyone wanted by the ICC with an arrest warrant must be arrested as soon as he or she enters German territory - and then handed over to the International Criminal Court. There is no discretion. Anything else would be a breach of international law and also a breach of the German law on cooperation with the ICC.

Are there no exceptions possible?

The Code of Criminal Procedure provides for exceptions for the prosecution of crimes committed abroad, for example because of higher-ranking interests of the Federal Republic of Germany. However, this does not apply to crimes under the International Criminal Code, which is the subject of this case.

The arrest warrant was issued by the court, but the states have not yet been asked to implement it. Is this a grey area that allows a visit?

No. The arrest warrant triggers the need for extradition even without a request for implementation.

Professor Christoph Safferling holds the chair for criminal law, criminal procedural law, international criminal law and public international law at the Friedrich-Alexander University Erlangen-Nuremberg and is director of the International Nuremberg Principles Academy.

Source: FAU/INPA/Lérot

Could the United Nations undermine the Rome Statute, the basis of the ICC?

Prosecution can be suspended for a year if the UN Security Council requests it, but there is no indication of this happening.

There is speculation that Netanyahu would have a kind of safe conduct if he traveled to the UN headquarters in Bonn instead of the Chancellery in Germany. Would that be an option?

That is doubtful. There is such an agreement for the main location in New York. It cannot simply be transferred to sub-organizations. How narrowly the agreement is drawn up is shown by the fact that it is not certain whether the ICC chief prosecutor can appear in the General Assembly in view of the US sanctions against the court.

Could The Hague refrain from enforcing the arrest warrant?

Netanyahu would have to make it clear that he is willing to accept the proceedings and cooperate. Then the ICC could put the arrest warrant on hold because the grounds for arrest - risk of flight and risk of obstruction of justice - no longer apply. As a co-initiator of the court, Germany should insist on cooperation anyway.

What happens if Israeli courts take action themselves?

National jurisdiction takes precedence over international jurisdiction. The Israeli public prosecutor would then have to investigate war crimes. Investigations into allegations of fraud are not enough.

The arrest warrant is based on allegations of war crimes and crimes against humanity. Should the ICC be accused of bias?

The arrest warrant was not issued lightly on the basis of any pretext. The court deliberated for several months and every country in the world was able to comment. The court was not created to pillory undesirable people, but to apply international law worldwide to friend and foe alike. That is why we in Germany must also investigate Bundeswehr soldiers if there is suspicion of war crimes committed in Afghanistan - and we have done so. The Israeli Prime Minister must also accept that he is being investigated.

Merz claims a kind of public interest: It is inconceivable that an Israeli prime minister could not visit Germany.

This is of course a political dilemma. But a chancellor can also fly to Israel for a visit. If Netanyahu came to Germany, it would be an incredible provocation for the International Criminal Court. This is completely unnecessary.

What would be the consequences?

The consequences would be massive. The state justice minister responsible for the airport location would have to instruct the public prosecutor's office not to implement the arrest warrant. That would be a massive infringement on the independence of the judiciary - an enormous problem in terms of the rule of law. The International Criminal Court, which is already heavily affected by US sanctions, would be further damaged. The lights in The Hague could be turned out. And the Chancellor would face criminal proceedings on suspicion of obstruction of justice in office.