Are European Politicians Beginning to Worry About Their Own Possible Complicity in Israel’s War Crimes?

“If you are encouraging a party to undertake a war crime you become complicit in that crime itself.”

Unlike the United States and Israel, most Western European countries — including Germany, France, the United Kingdom, Italy and Spain — are signatories to the Rome Statute of the International Criminal Court, or ICC. As such, while lawmakers in Israel and the US can talk about ignoring or sanctioning* the ICC over its chief prosecutor’s decision to apply for arrest warrants for Israel’s PM Benjamin Netanyahu and Defence Minister Yoav Gallant, many governments in Europe are torn between their blind loyalty to Israel and their responsibilities as States Members of the ICC.

An interesting case in point is Berlin, which is until now one of the ICC’s biggest financial donors. But the German government is also a fervent supporter of Israel, which it calls its “reason of state” — a lingering legacy of the systematic murder of millions of Jews under the Nazi regime. As Deutsche Welle reported a few days ago, while the Biden administration can ridicule The Hague’s request as “outrageous”, Germany’s position is more complex. The Scholz government must choose between supporting The Hague or Netanyahu — that is, between obeying international rules or standing by a close ally:

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…”

Another problem for Berlin is that Netanyahu’s government is increasingly isolated on the world stage and even within Israel itself, as an editorial in the FT acknowledges:

The International Court of Justice ordered Israel to halt its assault on the southern Gaza city of Rafah. Ireland, Norway and Spain committed, meanwhile, to recognise Palestinian statehood — a symbolic blow against an Israeli leader who rails against any talk of a two-state solution. This should be a wake-up call, a moment for moderate Israelis to realise that, despite worldwide sympathy over Hamas’s horrific October 7 assault, their far-right government’s actions are driving the country into greater isolation.

Some EU governments, including France, Belgium and Slovenia, have publicly expressed support for the ICC Prosecutor’s application for arrest warrants against leaders from Israel and Hamas for alleged war crimes and crimes against humanity. Belgium’s deputy prime minister has even called for the imposition of EU sanctions on Israeli imports. Others have slammed the ICC chief prosecutor’s decision. They include Hungary’s Foreign Minister Gergely Gulyas who said that Netanyahu can rest assured he would not be arrested or extradited if he entered Hungarian territory.

War Crimes Complicity

If granted, the ICC Chief Prosecutor Karim Khan’s application for arrest warrants for Netanyahu, Gallant and three Hamas leaders could have implications far beyond Israel and Palestine. If the ICC ends up ruling that the actions of Netanyahu’s government and the IDF in Gaza do indeed constitute war crimes and/or crimes against humanity, it opens up the possibility of Western leaders and ministers being prosecuted on charges of complicity in those crimes.

For the moment, it is only a possibility, and probably a slim one at that. Much will depend on whether the ICC’s judges actually issue the arrest warrants for Netanyahu and Gallant. The US government is mobilising all of its reserves of soft and hard power, including the threat of sanctions, to try to ensure that does not happen.

There is also the question of enforcement: as the ICC itself notes, it does not have its own police force or enforcement body and thus “relies on cooperation with countries worldwide for support, particularly for making arrests, transferring arrested persons to the ICC detention centre in The Hague, freezing suspects’ assets, and enforcing sentences. It is far from clear whether that cooperation will be forthcoming from many Western jurisdictions.

All that being said, the mere fact that the ICC’s chief prosecutor has applied for arrest warrants for Israel’s prime minister and defence minister is without precedent. Since its inception in 2002 the ICC has only ever conducted trials against African governments while sparing Western leaders from criticism. This has prompted accusations that the court is being used as “a tool of Western neo-colonial politics,” notes Alfred de Zayas, an expert in international law and former Special Rapporteur to the the UN Human Rights Council:

This is evidenced by its failure to indict Western political and military leaders, notwithstanding well-documented legal briefs submitted to three Prosecutors, particularly concerning war crimes and crimes against humanity in Afghanistan and Iraq, including torture in Abu Ghraib, Mosul, and Guantanamo.

De Zayas warns that after all that has happened, if the ICC judges fail to indict Netanyahu and Gallant, as recommended by Prosecutor Khan, “it risks a massive departure of members of the Statute of Rome,” especially those from Africa, and could even be the “final nail in the ICC’s coffin.” If, on the other hand, the indictments are granted, it could trigger the departure of a number of Western countries from the ICC.

In the UK, for example, the likely future prime minister, Keir Starmer, a former human rights lawyer no less, has refused to say whether or not he would enforce the ICC arrest warrants. At the same time, he insists that he respects the independence of the ICC’s prosecutors and judges and supports international law. Yet in the early days of the Israeli offensive in Gaza, Starmer told LBC that “Israel does have the right” to cut off food and water to Gaza.

He was not the only one. For weeks and months after the October 7 massacre, many European leaders and politicians reaffirmed Israel’s right to defend itself even as the IDF dropped tens of thousands of tonnes of explosives on Gaza, one of the planet’s most densely-populated areas, while at the same time opposing calls for a meaningful ceasefire. Von der Leyen, for example, did not begin endorsing the idea of a ceasefire until March, more than five months into the conflict.

As the civilian death count in Gaza soared, with children accounting for a disproportionate share of the deaths, the same seven words kept pouring out of many Western government mouthpieces: “Israel has the right to defend itself.” But while all states have a right to defend themselves under the UN Charter, that does not give them the right to wage war on an occupied territory.

“Israel cannot claim the right of self-defence against a threat that emanates from the territory it occupies, from a territory that is kept under belligerent occupation,” said Francesca Albanese, United Nations Special Rapporteur on the occupied Palestinian territories. “And not only does this exist in the jurisprudence of the International Court of Justice in general; it’s also been said in the case of the occupied Palestinian territory.”

Many Western countries have continued to sell weapons to Israel and withhold funds from UNRWA, the main United Nations agency working in Gaza, even as the bombs began dropping on Rafah and the threat of famine looms over Gaza’s roughly two million trapped inhabitants.  And that is why some of Israel’s Western allies now face the possibility, however slim, of being  charged for complicity in war crimes.

“A failure by states such as Germany, the UK and the US to reassess how they are providing support to Israel provides grounds to question whether those states are violating the obligation to prevent genocide or could even at some point be considered complicit in acts of genocide or other violations of international law,” Michael Becker, a professor of international human rights law at Trinity College in Dublin who has previously worked at the ICJ, told Al Jazeera in April.

Calls for ICC Investigation into Von der Leyen

One obvious suspect for complicity in Israel’s war crimes is Ursula von der Leyen, who in the early days of Israel’s Gaza offensive breached her mandate as EU Commission president by lending full EU approval to the offensive despite the fact she has no authority in foreign affairs matters. VdL has already faced a barrage of criticism within EU institutions, including by the Commission’s chief diplomat, Josep Borrell, as well as in some European capitals, for her early unqualified support for Israel.

Following her visit to Israel in October, she was accused in a letter signed by 842 EU staffers of turning a blind eye to Israel’s war crimes in Gaza. The letter accused VdL of giving “a free hand to the acceleration and the legitimacy of a war crime in the Gaza Strip”. It also warned that the EU is “losing all credibility” as well as its status “as a fair, equitable and humanist broker,” while  ripping into VdL’s “patent” double standards over what is currently unfolding in Palestine and events in Ukraine.

In early May, Borrell laid into his boss for ignoring a request lodged three months earlier by the governments of Spain and Ireland to conduct a thorough review of the EU’s trade agreement with Israel due to human rights violations in the Gaza Strip. Spanish President Pedro Sánchez and the-then Irish Prime Minister, Leo Varadkar, sent a letter to the EU Commission president in February proposing a reconsideration of the association agreement, which includes among its clauses the possibility of suspending the agreement’s terms if international law is breached. But instead of suspending the agreement, VdL promoted closer EU-Israel cooperation.

It is not just her EU colleagues or underlings accusing VdL of complicity in war crimes. On May 22, two European human rights organisations — the Geneva International Peace Research Institute (GIPRI) and the Paris-based Collectif de Juristes pour le Respect des engagements internationaux de la France (CJRF) —  and a group of “international concerned citizens”, submitted a legal brief to the ICC Chief Prosecutor Karim Khan requesting the opening of an investigation into the EU Commission president for her complicity in Israel’s war crimes against Palestinian civilians in the Occupied Palestinian Territories, including the Gaza Strip.

According to the accompanying press release sets out, Von der Leyen is complicit in violations of Articles 6, 7 and 8 of the Rome Statute by her “positive actions” (providing military, political and diplomatic support to Israel) as well as in her failure to take timely action on behalf of the Commission to help prevent genocide as required by the 1948 Genocide Convention. It also notes that VdL cannot argue that she was unaware of Israel’s violations of international humanitarian law, “especially following the International Court of Justice’s provisional measures order of 26 January 2024 in the pending ICJ case South Africa v. Israel.”

The document also states that Von der Leyen “enjoys no functional immunity before the International Criminal Court by virtue of Article 27 of the Rome Statute.” From the final section of the press release:

[Von der Leyen] should have taken every possible action at her disposal to prevent the continued commission of such crimes, and at the very least not to facilitate in any manner the commission of these crimes, as she unfortunately did. The obligation to prevent the commission of genocide is paramount in the Genocide Convention and the ICC Statute…

Should President von der Leyen have acted pursuant to her legal duty to act, rather than sought to “ensure freedom of action for Israel in the continuation of the campaign”, the crimes would have been substantially less likely to occur, or at the very least to be perpetrated over such a long period of time, and on such a scale and magnitude.

Even if this brief is ultimately rejected by the ICC, the looming risk of prosecution in the future, combined with the ongoing criminal investigation into the Commission’s procurement of vaccines from Pfizer BioNTech, may be enough to put paid to VdL’s reelection hopes.

Criminal Complaints in UK

In the UK, a new criminal complaint has been submitted to the Metropolitan Police accusing 22 people, including five unnamed government ministers, of aiding and abetting Israel’s intentional starvation of Palestinians. It comes on the heels of a prior complaint issued in January by the International Centre of Justice for Palestinians (ICJP), arguing that UK politicians are criminally liable for their involvement in alleged Israeli war crimes in the Gaza Strip.

Of course, the chances of the UK’s legal establishment investigating and, if necessary, prosecuting senior British government officials for alleged war crimes are as good as zero. Tony Blair is living, grinning testimony to that fact. This is why it must fall to the ICC to investigate Netanyahu’s accomplices in the UK government, argues Declassified UK:

With the ICC’s chief prosecutor issuing an application for an arrest warrant against Israel’s prime minister for “war crimes and crimes against humanity”, attention must turn to those who have aided Israel.

British ministers have for months been materially assisting Israel during its onslaught against Palestinians in Gaza. This support is being provided in three main ways.

First, the UK is providing arms to Israel. Recently filed court documents reveal that, as of January this year, the UK government had 28 extant and 28 pending “high-risk” licences with Israel marked as “most likely to be used by the IDF in offensive operations in Gaza”…

Second, the UK military is training Israeli armed forces personnel in Britain during the genocide… Third, the UK military is conducting spy flights over Gaza in support of Israel. Declassified has found that over 200 surveillance missions over Gaza have been undertaken by the Royal Air Force, which is likely to have gathered around 1,000 hours of surveillance footage.

The UK government seems to be perfectly aware of the legal risks it faces by continuing to furnish Israel with military weapons, train its officers and provide it with aerial intelligence even after the International Court of Justice ruled in late January that it is “plausible” that Israel has committed acts that violate the Genocide Convention. As the DCUK article notes, “British ministers are refusing to provide detailed information about these three areas of activity to parliament, likely to avoid prosecution for complicity in war crimes.”

Did you know that last month the British government imposed a blackout on all information about Israeli military planes landing in the UK?

It's not been reported in a single UK paper.

Britain is materially complicit in genocide. And the cover-up has been going on for 7 months. pic.twitter.com/Tn8OIlZXvm

— Matt Kennard (@kennardmatt) May 27, 2024

Western leaders and politicians were served fair warning of the risks of aiding and abetting Israel’s war crimes in Gaza. In fact, even in the early days of Israel’s Gaza offensive, many were sounding the alarm. They included Crispin Blunt, a British MP and former squadron commander in the armed forces, who told the BBC:

“If you are encouraging a party to undertake a war crime you become complicit in that crime itself. And it’s absolutely clear now that what is happening in Gaza does amount to a war crime”.

In late January, the ICJ issued its warning of a “plausible” risk that Israel was committing a genocide. The court also required Israel to provide aid and services, stop dehumanising Palestinians, and quit destroying infrastructure, which the Netanyahu government has studiously ignored while intensifying its offensive in Gaza. Late last week, it was instructed by the ICJ to halt its offensive on Rafa. Israel’s response was to rain down bombs on tents sheltering hundreds of displaced Palestinians in the city, setting the make-shift camp on fire.

In late March, Francesca Albanese issued a report stating there were clear indications that Israel was violating the UN Genocide Convention, and reminding other governments that complicity in genocide was also “expressly prohibited, giving rise to obligations for third states”.

In that same month, a group of Australian lawyers referred Prime Minister Anthony Albanese and his government to the ICC for investigation on charges of complicity in the Gaza genocide. As WSWS reported at the time, the lawyers “outlined [in a meticulous brief] Labor’s repeated legitimisation of Israeli war crimes, as well as Australia’s assistance, political, diplomatic and material. Albanese could not refute that brief, instead vaguely dismissing it as ‘disinformation’.”

---

* This is by no means the only pressure the governments of Israel and the US appear to be applying to try to dissuade the ICC from going after Netanyahu and his ministers. A few weeks ago, 14 US Republican senators sent a letter to ICC Chief Prosecutor Karim Khan, threatening him against issuing an arrest warrant for Netanyahu. “Target Israel and we will target you,” they wrote.

Earlier this week, The Guardian reported that Netanyahu had (allegedly) sent the former head of Mossad Yossi Cohen to have a quiet, threatening word or two in the ear of Fatou Bensouda, a former chief prosecutor at the ICC, to pressure her into abandoning an investigation into alleged war crimes and crimes against humanity in occupied Palestinian territories. That was apparently back in 2021. As the article notes, “the [current] chief prosecutor’s decision to apply to the ICC’s pre-trial chamber for arrest warrants for Netanyahu and his defence minister, Yoav Gallant, alongside three Hamas leaders, is an outcome Israel’s military and political establishment has long feared.”