International law expert welcomes arrest warrant applications for Netanyahu and Hamas leaders

He is a sought-after expert: Professor Christoph Safferling has clarified to a number of media outlets how he views the International Criminal Court’s application for arrest warrants against Hamas and Israeli Prime Minister Netanyahu. In the interview below, the international law expert explains why he welcomes the arrest warrant applications, what the next steps of the International Court of Justice are and why Israel’s right to self-defense remains untouched.

International law expert Christoph Safferling welcomes the arrest warrant applications and assesses the current situation.

The chief prosecutor at the International Criminal Court has requested arrest warrants for Israel’s Prime Minister Netanyahu, his Defense Minister Joav Galant and several Hamas leaders. The charges against them include war crimes and crimes against humanity. Prof. Dr. Christoph Safferling explains why the chief prosecutor of the International Criminal Court has applied for an arrest warrant and what the consequences would be.

Why was an arrest warrant requested not only for three leading members of Hamas, but also for Israeli Prime Minister Benjamin Netanyahu and his defense minister?

Christoph Safferling: The chief prosecutor accuses Israel of serious crimes in the Gaza Strip, such as the use of hunger as a weapon of war or deliberate attacks on the civilian population. Israel, on the other hand, emphasizes that it is defending itself against Hamas after the massacres of October 7.

The arrest warrant application is not even about whether Israel is allowed to defend itself and was justified in taking up arms, which I believe it is. The issue is how the military operations are carried out and whether they are compatible with international humanitarian law. The prosecutor in The Hague is of the opinion that the thousandfold suffering of the civilian population is no longer acceptable and that the Israeli commanders are responsible for the desolate humanitarian situation of the Palestinians in the Gaza Strip.

What can we expect now the arrest warrants have been applied for?

Christoph Safferling: A Pre-Trial Chamber is examining the evidence presented by the chief prosecutor in support of his motion. The chamber will weigh up whether there is actually sufficient suspicion that war crimes and crimes against humanity were committed by the two Israeli politicians. This will be examined very closely. It is difficult to say how long this will take – we will probably have to wait a few weeks

In the meantime, Israel maintains the right to defend itself. What does that mean?

Christoph Safferling: Israel was attacked in a heinous way by the terrorist organization Hamas on October 7, 2023. Some of the hostages abducted that day are still not free, Israel is still being shot at from the Gaza Strip. Israel is allowed to defend itself against these attacks, especially as the United Nations has not intervened.

The allegations that led to the arrest warrant applications are about another issue, namely whether Israel is responsible for the current humanitarian plight in the Gaza Strip, which has arisen because of the army’s military operations.

The purpose of international humanitarian law is to improve the situation of people who are not responsible for a war. Israel must do everything it can to improve the catastrophic humanitarian situation and allow aid deliveries. If it does not, there is reason to suspect that their need is being used as a means of war, and that would be a crime.

Do the current charges include an accusation of genocide, as is made at pro-Palestinian demonstrations?

Christoph Safferling: No, that wasn’t raised here, and rightly so. Genocide is a very specific term that presupposes that a protected group as such is to be destroyed in whole or in part. The Palestinians in the Gaza Strip are protected as such, but one cannot claim that the prime minister and defense minister want to destroy the Palestinians. They are fighting against the Hamas terrorists.

The German Federal Foreign Office, among others, has criticized that the chief prosecutor has created an “inaccurate impression of equivalence” by filing the motions against Netanyahu at the same time as those against the Hamas leaders. Do you share this view?

Christoph Safferling: Politically, this can be seen as an assertion of equivalence. But legally, they are not equivalent. Each arrest warrant is assessed individually; after all, it depends on the individual charges.

In previous situations, the Office of the Prosecutor in The Hague has been repeatedly criticized for being biased. Now the chief prosecutor is striving for equality and is once again being criticized for it. The law is very clear: each side must abide by it.

What would be the consequences of an arrest warrant for Netanyahu?

Christoph Safferling: He is not facing a threat in his own country. Unlike Palestine, Israel is not a member of the ICC. But he could show himself cooperative in order to clarify the accusations and approach The Hague without going there straight away. A commission of inquiry could be set up in Israel to independently investigate the allegations. The ICC must give priority to these national efforts.

There is also the possibility of withdrawal from the offense: If the suspect ensures that the humanitarian situation improves, the offense could be considered withdrawn and the arrest warrant withdrawn.

International law expert Prof. Dr. Christoph Safferling

Professor Dr. Safferling is the Chair of Criminal Law, Criminal Procedure and International Law at Friedrich-Alexander-Universität Erlangen-Nürnberg.

He is a member of the FAU Research Center for Human Rights Erlangen-Nürnberg (FAU CHREN) The aim of FAU CHREN’s work is to strengthen the protection of human rights and to drive forward the universal implementation of these rights.

In addition to his extensive teaching and research activities, Prof. Safferling holds numerous extramural positions, including Director of the International Nuremberg Principles Academy.

“Antisemitism is an ongoing problem”

After the Hamas massacre in October 2023, antisemitic attacks have become a regular occurrence. At the same time, people are loath to criticize Israel’s military offensive as they do not want to be accused of antisemitism. How can we deal with this as a society? An interview with Professor Heiner Bielefeldt, Chair of Human Rights and Human Rights Policy at the Institute of Political Science at Friedrich-Alexander-Universität Erlangen-Nürnberg (FAU). Read more