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29 May 2024

A court for Africans only

On a visit to Oxford a few weeks ago, Josep Borrell, the EU’s High Representative for foreign policy, made a revealing comment. He said “diplomacy is the art of managing double standards”.  Nothing has ever exposed Europe’s double standards more brutally than the decision by Karim Khan, the prosecutor of the International Criminal Court, to seek an arrest warrant for Benjamin Netanyahu, the Israeli prime minister, and his defence minister, Yoav Gallant, along with three Hamas leaders.

Europe’s hypocrisy stems from the fact that they enthusiastically supported Khan’s decision to seek an arrest warrant against Vladimir Putin last year, but not to accept it when it hits a member of your team. Khan knew that there was going to be a backlash against him. He warned ICC member states to treat a decision by the court with the same seriousness as they have done in other cases. He meant Putin.

The ICC’s judges have yet to approve Khan’s request. I see no reason why they should reject it, unless there are some obvious investigate flaws in Khan’s report. The judges will almost surely not bow to political pressure. Why should the ICC be intimidated by the US, which never ratified the ICC’s founding statutes agreed in 1998?  

I presume therefore that the arrest warrant will go ahead. For Netanyahu this would mean no more visits to Europe - ever. No state visits either. As a head of government, he enjoys diplomatic immunity, but it does protect him from an ICC arrest warrant. If Netanyahu decided to visit a holocaust site in Germany, German police would be obliged to arrest him and hand him over to the ICC. Of all imaginable diplomatic nightmares for Germany, this ranks right up there.

An arrest warrant against Netanyahu would have all sorts of serious repercussion for Europeans. If Netanyahu were found guilty, where would this leave Europeans who supplied weapons to him?  I don’t think EU leaders are themselves at risk of being subjected to a war crime trial, but they could face risks under their own laws.  

An arrest warrant would also widen the divisions within the EU. The EU has been split between staunch supporters of Israel like Germany, and those who are closer to the Palestinians. Pedro Sánchez, the Spanish prime minister, is moving towards the recognition of a Palestinian state. Ireland, Malta and Slovenia are expected to follow suit. Sanchez said a few days ago, before the ICC prosecutor’s decision, that the EU should insist on respect for international law – from both Russia and Israel.  The warrant may also widen the gulf between the EU and the US if the US extends its support for Israel, for example by moving against a two-state solution.

There are 124 countries that have ratified the ICC’s statutes. The US, Israel, Russia, and China are not amongst them. All EU countries and the UK are. Netanyahu is safe in Israel, just as Putin is safe in Russia. The ICC has no jurisdiction in either country.

It is therefore unlikely that Putin – or Netanyahu for that matter – will ever appear in front of the ICC in The Hague. But the warrant affects their mobility. Last August, the Brics states – Brazil, Russia, India, China, and South Africa – held a summit in South Africa. Initially, Putin had planned to attend in person, but Pretoria could not extricate itself from a legal obligation to have him arrested on arrival. In the end, the solution they came up with is for Putin to attend by videoconferencing only. Putin can travel freely to China, another non-signatory to the ICC, but globally his freedom of movement is restricted to the countries that did not sign or ratify the ICC statutes. The same will be true for Netanyahu. He can visit the US - or Russia if he wants - and pray for his plane not be to be forced into an emergency landing in ICC member state.

Right now, the Europeans are still in denial. The German media had real trouble reporting the story. Some news media pushed it way down the web pages – below Bayern Munich’s latest difficulties. Karl Nehammer, the Austrian chancellor, came out with a statement to say that “we fully respect the independence of the ICC,” only to qualify it with the addendum that it was incomprehensible for the court to go after the leaders of Israel and the Hamas at the same time. In politics, comprehension matters - or in Nehammer’s case, the lack of it. International law does not care whether you understand it or not.

I, too, have concerns about the ICC’s actions, but for different reasons. Arrest warrants add an additional layer of complexity to already fiendishly difficult task of finding diplomatic solutions to end wars. For example, if there is ever a deal between Russia and Ukraine, it will almost surely include the lifting of the sanctions. It may involve the de facto but the not de jure recognition of Crimea as Russian and maybe some territories in eastern Ukraine as well. But no diplomacy can ever grant Putin, or Netanyahu for that matter, immunity under international law. For as long as they remain in power, they will be in danger of arrest. I know this is a feature not a bug of the system. But it has a cost.

For starters, any negotiations would have to happen on their soil, or on the soil of another non-ICC signatories. The arrest warrant constitutes the ultimate travel ban. Perhaps the biggest downside is that it reduces an indicted warlord’s   incentives to seek a deal. One of the unintended consequences could a longer war, and more war crimes. The reason we are in this situation is because the ICC is nowadays acting in real time while the wars are still raging.

For now, I believe the best chance for the Europeans to extricate themselves from this mess is to acknowledge the hypocrisy, as Borrell did, and choose two between two contrasting courses of action. One is continued support for multilateralism and moderation, and the primacy of international law. In that case, the EU would need to apply the same standards to Ukraine to Israel, and accept that it is up to the court to decide.

The alternative is to try to become a geopolitical power in its own that puts its own interests ahead of everyone else’s. It is no accident that the US, China and Russia have all refused to sign, or ratify, the Rome statutes of the ICC. I used to advocate the geopolitical route, but I don’t see sufficient political will and unity in the EU. It would require a treaty change for starters – a political union with majority voting on foreign policy, a lot more defence spending, the integration of defence procurement into the single market, and the confidence to No to the US. A geopolitical EU would have strategic partnerships, but it would not define itself through them. These two approaches to European integration are incompatible. 

The European dilemma is that they want it both.

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