Would Benjamin Netanyahu be arrested in Germany?

These are exactly the headlines that the German government was desperate to avoid: "Scholz spokesman hints: Germany would arrest Netanyahu," ran the headline of the country's highest-circulation tabloid, the Bild, on Wednesday evening. Die Welt newspaper chimed in: "Germany would extradite Netanyahu, government spokesman hints."

Is that really conceivable? That Germany would arrest or even extradite the leader of Israel if the International Criminal Court issues an arrest warrant for Prime Minister Benjamin Netanyahu? For the leader of the biggest opposition party, the Christian Democratic Union (CDU), Friedrich Merz, the mere thought of this is absurd: "The silence of the German government, right up to the suggestion by the government spokesman that Netanyahu could be arrested on German soil, is now really becoming a scandal," Merz told the Bild.

On Monday, the prosecutor of the International Criminal Court, British lawyer Karim Khan, applied for arrest warrants against Netanyahu and his Defense Minister Yoav Gallant as well as three leaders of Hamas on charges of crimes against humanity and war crimes, because of the great suffering of the people in the Gaza Strip since Israel responded militarily after the October 7 Hamas attack. The group is considered a terrorist organization by Germany, the EU, the US and others.

Khan specifically accused Netanyahu and his defense minister of using the starvation of the people in the Gaza Strip as a weapon of war. The chief prosecutor announced his applications, which are now to be examined and decided by the court, in the same breath.

Merz claimed that Khan's announcement made a certain connection between the Israeli head of government and the three Hamas leaders: "Even applying for the arrest warrant against Prime Minister Netanyahu and Hamas leader Sinwar at the same time is an absurd perpetrator-victim reversal," he says.

A tense government in Berlin

At the regular government press conference on Wednesday, Chancellor Olaf Scholz's spokesperson Steffen Hebestreit made it clear just how difficult it is for the German government to take a clear position in this case. Visibly tense, Hebestreit initially had to counter rumors on Wednesday that Scholz was "shocked" by the chief prosecutor's announcement. Hebestreit said: "I cannot report any shock or anger. We have made it very clear that we take a very critical view of the equation [of Netanyahu with Hamas]. And we pointed out differences in terms of how the state of Israel, its independent judiciary, is constituted.."

Some international judges do have doubts as to whether Khan should have filed a lawsuit against Netanyahu at all. According to international law expert Constantin Ganss in the Berlin newspaper Tagesspiegel, one of the ICC's rules is that it can only become active if the state in question is unwilling or unable to carry out investigations itself. Other legal experts, however, disagree with that argument.

The German government's dilemma: The country is one of the major supporters of the International Criminal Court, which has been investigating violations such as genocide and war crimes and passing sentences since 2002. In 2023 alone, the government sent $20 million (€18.5 million) to support the court. Some 124 countries have ratified the Rome Statute, the ICC's founding treaty. But the US and Israel are not.

Germany's professed 'special relationship' with Israel

On the other hand, German leaders have stated that the country supports Israel as its "reason of state" as a result of the murder of millions of Jews under the Nazi dictatorship. But does this "reason of state" also apply personally to Prime Minister Netanyahu? Hebestreit said: "In principle, we are supporters of the International Criminal Court — and that's the way it stays. We abide by law and order."

Israel's ambassador in Berlin Ron Prosor offered strong criticism of Khan, but also of the German government: "The reason of state is now being put to the test, without ifs and buts." Prosor called the government's statements "soft" and added: "The statement that Israel has the right to self-defense loses credibility if our hands are tied as soon as we make use of it."

In fact, other states are far more unequivocal than Germany when asked whether they would arrest Netanyahu. Hungary, for example, says no. The country supports the ICC, but Chancellery Minister Gergely Gulyas said that the Israeli head of government should not expect to be arrested if he visits Hungary. And a few days ago, US President Joe Biden described the request from The Hague as outrageous. But the US has also never supported the ICC. Things are different in Germany — and therefore much more complicated.

This article was originally written in German.

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