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EXCLUSIVE
Israeli embassy in Berlin reminds Germany of its ‘reason of state’ as Berlin confirms it would arrest Netanyahu if the warrants come into force.
Berlin, Germany – Israeli officials are calling on German parliamentarians to “condemn” arrest warrant requests for Israel’s Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant.
In an email seen by Al Jazeera, written under the request of ambassador Ron Prosor, a staffer of the Israeli embassy in Berlin asked members of the Bundestag to “strongly condemn the fact that the chief prosecutor in The Hague is equating Israel, a democratic land with a strong and independent justice system, with the murderous terror organisation Hamas”.
Karim Khan, the International Criminal Court’s chief prosecutor, announced the applications for the warrants on Monday, citing alleged war crimes and crimes against humanity. As well as Netanyahu and Gallant, the requests apply to three senior Hamas leaders – Yahya Sinwar, Ismail Haniyeh, and Mohammed Diab Ibrahim al-Masri, who is also known as Deif.
Hamas, which is considered a terrorist organisation by the majority of Western powers including Germany, governs the Gaza Strip and was behind the October 7 attacks in southern Israel that sharply escalated the historic Israel-Palestine conflict.
During Hamas’s assault, 1,139 people were killed and hundreds were taken captive. Since then, Israel’s latest and deadliest war on Gaza has killed more than 35,562 Palestinians, among them thousands of children.
The Israeli embassy email mentioned the German “Staatsrason”, a political concept meaning “reason of state”; since the second world war ended, Germany has tried to make up for its Nazi past and role in the Holocaust by prioritising Israel’s security.
“The decision of the chief prosecutor harms Israel’s right to defend itself in a war against a terror organisation. Germany’s engagement for Israel’s security, which is part of Germany’s reason of state (STAATSRASON), is more important today than ever.”
Netanyahu was quick to reject the ICC announcement “with disgust”. In an interview with CNN, he called Khan a “rogue prosecutor that has put false charges and created false symmetries”.
Germany welcomed the independence of the ICC after the announcement and on Wednesday confirmed that its police would arrest Netanyahu if a warrant was issued, with government spokesperson Steffen Hebestreit saying, “We follow the law”.
But a government statement this week added: “The court will have to answer a number of difficult questions, including the question of its jurisdiction and the complementarity of investigations of states governed by the rule of law such as Israel”.
Legal expert Chantal Meloni, a lecturer in International Law at the University of Milan and a senior legal adviser at the Berlin-based European Center for Constitutional and Human Rights (ECCHR), views the statement as a subtle attempt to question the ICC’s jurisdiction.
“The German press release, although not blatantly attacking the ICC and formally respecting its independence is between the lines installing the question that the court does not have jurisdiction in the situation of Israel-Palestine,” she said.
In a 2020 appeal to the ICC, Germany argued that Palestine did not exist as a state and so the ICC could not have jurisdiction, Meloni explained. This contradicted a former ICC ruling; in 2015, Palestine acceded to the Rome Statute as a state party to the ICC.
“This is very unfortunate as it contradicts the independence of the court and it contradicts that Palestine is already a signatory of the ICC. They were arguing backwards from already established laws” said Meloni, who has represented Palestinian victims.
Echoing the reaction from Israel, the German government statement also said the “simultaneous application for arrest warrants … has given rise to the false impression that the two [Israeli and Hamas officials] are to be treated alike.”
But Meloni explained that the requests are “differentiated” and do not “conflate the responsibilities”.
“The crimes are different and of course the allegations are different. There is nothing outrageous that both political leaders and members of an armed group like Hamas which resorted to terrorism can both commit international crimes. The statute of the ICC is guiding the work of the prosecutor,” she said.
Prosor, the Israeli ambassador, wrote on X that “the German ‘Staatsrason’ is now being put to the test – no ifs or buts.”
