The flexible nature of international law

The flexible nature of international law
Now that it has been established that the bombing of Gaza meets all the criteria for genocide, Western states must execute the arrest warrant against Benjamin Netanyahu.

When someone commits murder, it is taken for granted everywhere that a court will issue an arrest warrant for them. If, on the other hand, they are responsible for the deaths of over 40,000 people and also signal that they intend to continue doing so, those who want to see them brought to justice are sometimes met with outrage. Benjamin Netanyahu is not only condemned by an overwhelming majority of the international community for the genocide of the Palestinians in Gaza — even those Western states that consider themselves friends of Israel are obliged under international law to arrest the Israeli prime minister as soon as he sets foot on their soil. However, reactions to this legal and moral obligation have been rather mixed. Some heads of state have announced that they will implement it, while others are vacillating, ducking out of the way, or even expressing outrage that a foreign dignitary is being treated in this way. International law thus becomes a kind of request show: sometimes you want to follow it, sometimes you just don't feel like it. Germany in particular finds it difficult to openly confront its “friend” with his crimes. But this is precisely how the Germans show that they do not care about human rights when it comes down to it. This failure is certainly noticed internationally, with the result that Germany—with a few loyal allies—is becoming increasingly isolated.

by Annette Groth
[This article posted on 12/20/2024 is translated from the German on the Internet, https://www.manova.news/artikel/das-biegsame-volkerrecht.]

"Please remember that we are on the brink of destruction. Children are eating grass. Families are being killed in their sleep. Tents are being flooded. Children are being shot. Please advocate for a ceasefire for us. We want to see our children grow up“ (Nahed Hajjaj, Palestinian journalist, November 26, 2024).

On November 1, 2024, Mondoweiss, a US Jewish electronic journal, ran the headline: ”Israel's mass killing campaign in Gaza escalates." In nine days, between October 22 and 31, the Israeli army killed 639 Palestinians — 71 people a day — and injured over 2,000 — more than 200 Palestinians a day. According to the Ministry of Health in Gaza, these are only the dead who have been recovered. Many still lie under the rubble, many will die from their injuries. At the end of October, the Israeli military suspended all humanitarian aid in northern Gaza and hospitals were evacuated.

“Civil defense has been forced to come to a complete standstill due to the ongoing Israeli bombardment campaign, leaving thousands of citizens without humanitarian and medical care” (1).

On the same day, the heads of 15 UN and private aid organizations issued an alarm call:
"The entire Palestinian population in northern Gaza is in acute danger of death from disease, hunger, and violence. The situation in northern Gaza is apocalyptic. The region has been under siege for almost a month. The population is being denied even rudimentary support and essential supplies, while the bombing and other attacks continue" (2).

As they have done dozens of times before, the organizations are calling for an immediate ceasefire. Since October 2023, there have been numerous calls for a ceasefire and an immediate halt to all arms deliveries, as well as alarming reports of the humanitarian catastrophe in Gaza, now also intensifying in Lebanon and the West Bank, all of which have had no discernible consequences. Instead of stopping or at least restricting arms deliveries to Israel, they have been stepped up from Germany and the US.

The German government should also gradually realize that Israel has long since ceased to comply with international law and is openly and provocatively violating it. The Netanyahu government does not seem to be expecting any sanctions. So the bombing continues in Gaza, Lebanon, and now also in Syria.

The Israeli government is unperturbed in pursuing its plans for Gaza, as revealed by General Giora Eiland in early October. According to these plans, parts of the Gaza Strip are to become fenced-off camps, guarded and administered by a private mercenary company, the US-based Global Delivery Company (GDC), run by Israeli businessman Mordechai Kahana.
"Food distribution would henceforth take place in these camps, which would only be accessible to those who allow the mercenaries to record their biometric data — including fingerprints, facial recognition, and voice samples. The project would likely be financed by US tax dollars and international donations. Initially limited to northern Gaza, the concept of private internment camps would then be extended to the entire coastal enclave" (3).

Was UNRWA, the UN organization founded in 1949 specifically for Palestinian refugees, banned in Israel to pave the way for absolute control of the Gaza population by a company? Journalist Noa Landau comments:

“The goal is to transfer Israel's moral and legal responsibility to these armed militias” (4).
If the international community allowed this, it would be the end of international humanitarian law. But perhaps some governments want this so they can experiment undisturbed with new technologies such as facial recognition and voice sampling to control people. This is another building block in the “Israel laboratory,” where new weapons and surveillance technologies have been tested for many years and sold around the world at a good profit and with the label “tested on the ground.”

Abdel Shafi, Palestine's ambassador to Austria and to the international organizations in Vienna, has sharply criticized the UNRWA ban:

"The Israeli Knesset's vote against UNRWA is unprecedented and sets a dangerous precedent. This decision clearly contradicts the UN Charter. It is not only a step against the Palestinian people, but also against international law and the international community. The only appropriate response to this can be the expulsion of Israel from the United Nations. For a state that defames and bans a UN organization as a terrorist organization, and declares the UN Secretary-General persona non grata and refuses him entry, has forfeited its place in the United Nations once and for all" (5).

Even the Federal Government Commissioner for Human Rights, Luise Amtsberg, has criticized the UNRWA ban:

“If the laws were implemented in this form by the Israeli government, it would effectively make UNRWA's work in Gaza, the West Bank, and East Jerusalem impossible.”
It would be a “dangerous signal of disregard for the United Nations and international cooperation” (6). So far, the criticism has had no consequences.

Germany — a pariah state
Through Germany's unconditional support with weapons and far-reaching privileges through trade and scientific cooperation, as well as its denial of violations of international law, the German government is putting itself on the political sidelines globally with its “rules-based policy.”

Germany's former good standing in the Arab world has been permanently destroyed, and a mediating role is now out of the question.

Foreign Minister Annalena Baerbock provoked an international scandal when she said in a speech to the Bundestag that civilian facilities in Gaza “could lose their protected status”:

“Self-defense, of course, means not only attacking terrorists, but also destroying them. That is why I have made it so clear that we are entering very difficult waters when Hamas terrorists hide behind people, behind schools. But we are not shying away from this. That is why I have made it clear to the United Nations that civilian facilities could lose their protected status if terrorists abuse that status.” (7).

In response, the UN Special Rapporteur for the Occupied Palestinian Territories, Francesca Albanese, called on the Foreign Minister to provide evidence for her claim that Hamas fighters were hiding in schools or other civilian facilities. To date, the Foreign Ministry has failed to respond. Time and again, the Israeli army also cites alleged hideouts of fighters as the reason for bombing schools and hospitals, but there is never any evidence to support this. Doctors in Gaza have repeatedly emphasized that they have never seen weapons or fighters in tunnels under their hospitals. On the contrary, they believe that the destruction of hospitals and the targeted killing of doctors and medical personnel is intended to cause the greatest possible number of deaths.

Three hundred academics protested against Baerbock's speech and called on her in a letter to withdraw her “protective status” statement. In the letter initiated by the Palestine Academic Group, they criticize Baerbock for “parroting Israel's old narrative of human shields” and providing a “flimsy justification for the genocidal campaign against Palestinian civilians” (8).
Another international scandal was caused by the delivery of eight containers of Royal Demolition Explosive (RDX) to Israel's largest military company, Elbit Systems. RDX explosive is an explosive invented in Germany, stronger than TNT, and is needed as a key component in the production of aerial bombs, grenades, and rockets.

On its way from Vietnam, where the cargo ship MV Kathrin had been loaded with the explosives, the first port of call was to be Walvis Bay, Namibia's largest overseas port. The authorities there refused to grant the ship permission to dock on the grounds that “Namibia is fulfilling its obligation not to support or be complicit in Israeli war crimes, crimes against humanity, genocide, and the illegal occupation of Palestine.”. The Namibian Minister of Justice referred to the UN Human Rights Council resolution of April 5, 2024, which called for an arms embargo against Israel. The resolution had been adopted by a large majority, with only the US, Germany, and four other states voting against it.

UN Special Rapporteur Francesca Albanese praised Namibia's decision and reminded the international community that “any military supply to Israel, which, according to the International Court of Justice, may be committing genocide, constitutes a violation of the Genocide Convention” (9).

Since the ship was flying the Portuguese flag at the time, Albanese also criticized Portugal for violating international law. The Portuguese government subsequently reflagged the ship, and one day later, according to various ship tracking websites, the ship was registered under the German flag (MS PENG CHAU BOEHE SCHIFFAHRT GMBH & CO). This means that Germany is fully responsible under international law for the cargo ship and its cargo, both as the flag state and the shipowner's state. According to current information, the MV Kathrin is in international waters in the Mediterranean Sea after the EU member state Malta also refused it entry into its waters, citing the situation under international law and the RDX explosives on board.

Withdrawal of accreditation
Calls for sanctions against Israel are growing, and demands to withdraw Israeli diplomats' accreditation to the UN are also becoming increasingly vocal. In 1974, the UN General Assembly decided to exclude South Africa from participating in the meetings of the General Assembly and its committees, thereby depriving the country of its right to participate in deliberations and voting. South Africa did not lose its membership in the United Nations at that time, but it was a strong political signal from the international community against its apartheid policy.

The Federal Republic of Germany is internationally condemned for its arms deliveries and unwavering support for the Israeli government. Israel's alleged right to self-defense, which Baerbock constantly repeats and uses as justification for the destruction of Gaza and the massacres, is absurd and is rendered ridiculous by the evidence of genocide.
The evidence of the arbitrary and targeted killing of civilians, the abuse of thousands of Palestinian prisoners, sexual violence, deprivation of food, and denial of humanitarian aid is too obvious; the list is endless.

Given the overwhelming evidence and the conviction of numerous international law experts, it is incomprehensible that Foreign Minister Baerbock and Chancellor Scholz continue to deny that genocide is taking place in Gaza.

In light of the complaint filed by South Africa against Israel in December 2023 at the International Criminal Court (ICC) on suspicion of genocide, the UN Special Rapporteur on Palestine, Francesca Albanese warns that “if Germany decides to side with a state that is committing international crimes, this is a political decision, but it also has legal implications” (10).
It should be recalled here that on January 26, 2024, the Court in The Hague ruled that Israel must take all necessary measures to prevent genocide in the Gaza Strip. Since then, South Africa has filed three urgent applications in The Hague to bring an end to the Israeli military operation in Gaza and expand humanitarian aid programs for the population. On October 28, the South African presidential administration announced that the country had submitted a 750-page memorandum to the United Nations International Court of Justice with the evidence gathered in support of its case. Arrest warrant issued for Netanyahu and former Defense Minister Joav Galant.-page memorandum with the evidence gathered in support of its case.

Arrest warrant for Netanyahu and former Defense Minister Yoav Galant
After the ICC requested an arrest warrant for Netanyahu in May 2024, the arrest warrant for Netanyahu and his former defense minister, Joav Galant, was issued on November 21, 2024. Arrest warrants were also issued for three senior Hamas leaders, but two of them are now dead and it is unlikely that the third is still alive.

All member states of the Criminal Court are obliged to arrest Netanyahu and Galant if they enter the signatory states of the Rome Statute.

Criticism of the arrest warrant against the Israeli prime minister is fierce and divides the international community and the EU.

Reactions range from open assurances that the arrest warrants will be enforced to cautious responses and unequivocal rejection. The Netherlands, Switzerland, and Ireland have announced that they will implement the Rome Statute, while Hungarian Prime Minister Viktor Orban wants to invite Netanyahu and promise him “that the arrest warrant will have no effect in Hungary when he arrives.”

The US responded as follows:
“Whatever the ICC may imply, there is no equivalence — none — between Israel and Hamas. We will always stand with Israel when its security is threatened.”

In contrast, former EU Foreign Minister Josep Borell announced on November 21, 2024:
“I take note of the ICC's decision to issue arrest warrants for Israeli Prime Minister Netanyahu, former Minister Gallant, and Hamas leader Deif. These decisions are binding on all States Parties to the Rome Statute, including all EU Member States” (11).

It is doubtful that the new EU Foreign Affairs Representative Kaja Kallas from Estonia shares Borell's opinion.

And the German government? It is reviewing the situation and “struggling to find the right approach.”

“Berlin is confronted with several risks. If the German government does not stand by international law, it will damage its foreign policy credibility. If it commits to the ICC's decisions, it risks not only a conflict with Israel, but also with its important ally, the United States. Domestically, there is therefore controversy over how to deal with this” (12).

The Green Party's foreign policy spokesperson, Deborah Düring, emphasizes that “Germany (...) naturally commits itself to international law” and “recognizes the International Criminal Court without reservation.” “We abide by the law” and she points to the “independence of the judiciary,” “a principle that should be familiar to all democrats in our country.” (13).

Johann Wadephul, deputy chairman of the CDU/CSU parliamentary group responsible for foreign policy, on the other hand, emphasizes reasons of state:

"For Germany, it must be a matter of course that, particularly in view of its own history and its special relationship with Israel, it emphasizes and defends Israel's right to self-defense to a particular degree. From our point of view, it is inconceivable that a democratically elected head of government of Israel should be arrested on German soil. It is disturbing how unclear the German government's position is on this matter.“

The other deputy chairman of the CDU/CSU parliamentary group, Alexander Dobrindt, called the ICC's decision ”utter stupidity" (14).

It will be interesting to see how the situation develops and what conclusion the German government ultimately reaches. However, it is also quite possible that the German government will wait until the elections in February 2025.

However, it could also be pressured into making a decision by numerous clear statements from various sides.

On November 22, 2024, Israeli writer Tomer Dotan Dreyfus said:
“When the German government announces that it will break international law, it is not just another country doing so. Germany is the country for which these institutions and these laws were formulated, written, and signed.”

Mathieu von Rohr, head of the Spiegel foreign affairs department, wrote on November 24, 2024:
"The idea that it is German ‘raison d'état’ to ‘protect’ Israel's top politicians — even from accusations of the most serious violations of international law — is a disastrous mistake. Netanyahu is not being charged in The Hague because he is defending his country, which he is of course entitled and obliged to do. He is being charged because he is accused of serious crimes against the civilian population in Gaza that have nothing to do with self-defense."

And Israeli peace activist Rotem Levin made an impassioned appeal:

“Dear international community, we implore you to uphold international law and arrest our criminal Prime Minister Netanyahu if he enters your country. For the good of all humanity” (15).
Saving lives by enforcing arrest warrants

In a statement released on November 26, 2024, forty-four UN rapporteurs and other experts call for “full compliance” with the arrest warrants against Netanyahu and Gallant, emphasizing that the warrants can help “save lives” (16).

Signatories include Morris Tidball-Binz, Special Rapporteur on extrajudicial, summary or arbitrary executions; Francesca Albanese, Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967; and Ashwani K. P., Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia, and related intolerance.

These experts write:
"The ICC's decision represents a historic step toward justice and accountability and offers hope for an end to decades of impunity for longstanding grave violations of international law in the Occupied Palestinian Territory. The longstanding lack of accountability, particularly on the part of the State of Israel, has contributed to the escalating and unsustainable violence in the region and has affected the lives and futures of both Palestinians and Israelis. (...)

Since October 7, 2023, and the military attack on the Gaza Strip and the rest of the OPT (Occupied Palestinian Territories, ed.), the independent experts have received and documented evidence of serious violations of international law targeting the civilian population. These violations, which often amount to international crimes, must cease immediately and must not go unpunished. The authority to execute these arrest warrants lies with governments. Compliance with the arrest warrants is crucial to overcoming the long-standing impunity that benefits the perpetrators and to ending the serious crimes in the OPT and Israel" (17).

Similar statements can be found in a report by Amnesty International, which was even mentioned in the Tagesschau news program. According to Amnesty International, Israel is committing “genocide in accordance with the UN Genocide Convention: Israel has deliberately destroyed the livelihoods of the people in Gaza. The report refers, for example, to the destruction of vital infrastructure” (18).

Meanwhile, the German government wants to examine some controversial points, such as the jurisdiction of the ICC, and is avoiding making a decision. According to Berlin-based international criminal law expert Florian Jeßberger, “there is nothing for Germany to examine at this point.” “Apart from the fact that there is no doubt about the jurisdiction of the ICC in this case based on previous case law,” Jeßberger refers to the Act on Cooperation with the International Criminal Court. Paragraph one states:

“Persons whose surrender has been requested by the Court in accordance with the Rome Statute and who are present in Germany shall be surrendered for prosecution and enforcement of sentences in accordance with the Rome Statute and this Act.”

This is a clear statement that the German government must adhere to (19).
Historic federal press conference: Arrest warrant for Netanyahu and the role of Germany
On November 29, an extraordinary federal press conference was held with four experts who gave statements on the arrest warrants issued on suspicion of genocide. Christine Binzel, professor of Middle Eastern economics and society, Michael Barenboim, professor at the Barenboim-Said Academy, Hanna Kienzler from King's College London, and international law expert Wolfgang Kaleck from the European Center for Constitutional and Human Rights (ECCHR) spoke objectively and without fear or taboos about Israel's crimes against international law in Gaza and Germany's role as an “accomplice” (20).

In her opening statement, Dr. Christine Binzel emphasized:
"The arrest warrants are thus in line with the decisions of the International Court of Justice in the case of South Africa v. Israel to issue provisional measures to prevent a plausible genocide in Gaza. The arrest warrants are also in line with analyses and reports by various experts, doctors, humanitarian organizations, and institutions. As early as October 18, 2023, some 800 scientists and experts in international law, conflict research, and genocide research warned of genocide. Numerous UN publications, as well as countless videos of Israeli soldiers, document Israeli crimes under international law. (...)

As a signatory to the UN Genocide Convention and the Rome Statute, Germany is legally, historically, ethically, and politically obliged not to commit, support, or promote the crimes against international law outlawed in these treaties. Germany has failed to fulfill this obligation for 14 months. Germany did not just stand by and watch — the federal government continues to support Israel politically, financially, militarily, and legally. Germany is the second-largest arms supplier after the US. Research shows that German weapons are being used in Gaza.
The federal government ignored the genocidal statements made by Israeli government members and other high-ranking officials, even though they were immediately followed by actions. It also ignored the many warnings from experts. Instead of respecting the ICC decision of January this year and acting accordingly, the German government declared that the accusation of genocide against Israel — set out by South Africa in 84 pages and backed up by numerous pieces of evidence — [quote] “is completely unfounded” (21).

Binzel calls on the German government to take “immediate measures” to “stop the further destruction of Palestinian life by Israel. These include a complete arms embargo, sanctions, and the review of all diplomatic, political, and economic relations with Israel.”

The statements by the four experts are a resounding slap in the face for the German government and deserve to be widely disseminated!

Notes
(1) https://mondoweiss.net/2024/11/israels-mass-killing-campaign-in-gaza-is-escalating/?ml_recipient=136890371831498318&ml_link=136890363469104984&utm_source=newsletter&utm_medium=email&utm_term=2024-11-02&utm_campaign=Daily+Headlines+RSS+Automation
(2) Pressemeldung auf der Internetseite des Uno-Koordinationsausschusses https://www.geneve-int.ch/de/inter-agency-standing-committee-iasc-1 https://www.spiegel.de/ausland/israel-gaza-krieg-bevoelkerung-nord-gazas-ist-uno-angaben-zufolge-vom-tode-bedroht-a-23e8fc7c-a4d4-4633-ba19-ee8f9c5702e8
(3) Jakob Reimann, October 26, 2024, junge Welt: “Internment camps for Gaza, Israeli government considers plans to set up walled areas in coastal enclave and hire US mercenary company to control them,” https://www.jungewelt.de/artikel/486535.gazakrieg-internierungslager-f%C3%BCr-gaza.html
(4) https://thecradle.co/articles/israel-sets-in-motion-plan-for-gaza-concentration-camps-run-by-cia-trained-mercenaries-report
(5) http://www.palestinemission.at, October 29, 2024
(6) Evelyn Hecht-Galinski: “Shameless German complicity – Prepared for war from head to toe,” https://www.sicht-vom-hochblauen.de/kommentar-vom-hochblauen-schamlose-deutsche-mittaeterschaft-von-kopf-bis-fuss-auf-krieg-eingestellt-von-evelyn-hecht-galinski/
(7) Speech by Foreign Minister Annalena Baerbock at the agreed debate “October 7: One year after the terrorist attack on Israel” in the Bundestag, October 10, 2024, https://www.auswaertiges-amt.de/de/newsroom/-/2679468
(8) Rayhan Uddin and Lubna Masarwa, October 29, 2024, “Academics call on German politician Annalena Baerbock to retract her comments on Gaza,” https://www.middleeasteye.net/news/academics-call-german-foreign-minister-retract-gaza-comments, in https://www.sicht-vom-hochblauen.de/
(9) “Transport of RDX explosives to Israel by German ship causes international outrage,” Federal Press Conference, October 23, 2024, https://www.nachdenkseiten.de/?p=123861
(10) junge Welt, October 10, 2024, Jakob Reimann: “A year of war crimes,” https://www.jungewelt.de/artikel/485458.nahostkonflikt-ein-jahr-kriegsverbrechen.html
(11) http://www.palestinemission.at, November 26, 2024
(12) Frankfurter Allgemeine Zeitung, November 28, 2024, Matthias Wyssuwa, Marlene Grunert: “German foreign policy struggles to find the right approach”
(13) ibid
(14) ibid
(15) http://www.palestinemission.at, November 26, 2024
(16) https://www.sicht-vom-hochblauen.de/un-berichterstatter-fordern-vollstaendige-einhaltung-der-haftbefehle-gegen-netanjahu-und-gallant/ November 27, 2024, https://www.middleeastmonitor.com/20241127-un-rapporteurs-call-for-full-compliance-with-netanyahu-gallant-arrest-warrants/
(17) ibid
(18) https://www.tagesschau.de/ausland/asien/israel-voelkermord-amnesty-international-100.html, November 28, 2024, https://www.amnesty.de/sites/default/files/2024-12/Amnesty-Bericht-Gaza-Genozid-Voelkermord-Palaestinenser-innen-Israel-Dezember-2024.pdf
(19) Frankfurter Allgemeine Zeitung, November 28, 2024, Matthias Wyssuwa, Marlene Grunert: “German foreign policy struggles to find the right approach”
(20) Historic Federal Press Conference: “Germany must participate as an accomplice in the reparations payments for Gaza,” Florian Warweg, December 2, 2024, Nachdenkseiten https://www.nachdenkseiten.de/?p=125587
(21) Federal press conference on November 29, 2024: “The ICC arrest warrants and Germany's role,” opening statement by Prof. Dr. Christine Binzel, Professor of Economics: Economy and Society of the Middle East, Friedrich-Alexander University Erlangen-Nuremberg.

Annette Groth, born in 1954, worked as a development sociologist, research assistant for a European migration research project, ecumenical advisor for the Protestant Student Community, education officer for the United Nations High Commissioner for Refugees, director of a tourism-critical NGO, and advisor for an ecumenical scholarship program of the Diakonisches Werk. She was a member of the Bundestag for the Left Party for a time.