ICC can call on 123 nations over Germany’s disobedience on ICC verdicts

Germany’s ambiguity towards the latest International Criminal Court (ICC) verdict against Israel’s Prime Minister Benjamin Netanyahu and his former Defence Minister Yoav Gallant could set another motion in process within the international body, prompting a discussion about Berlin’s commitment towards the Rome Statue – to which it is a signatory.

“Since the Court operates based on a multilateral treaty, the most appropriate way to address these issues is by letting the state parties decide. This approach reinforces the legitimacy of the process, especially in cases of non-compliance," says Andrea Maria Pelliconi, an Assistant Professor at the University of Southampton, with a specialisation in Human Rights Law.

Pelliconi was referring to the Assembly of States Parties (ASP) – a body for oversight and legislation involving 124 nations which have ratified or acceded to the Rome Statute, a treaty that led to the establishment of the ICC in 2002.

When the ICC refers matters to the ASP, it is essentially seeking the collective input or intervention of the state parties to the Rome Statute.

This referral process occurs when the Court encounters issues that it cannot address independently, such as lack of cooperation from states, enforcement challenges, or systemic obstructions to its operations.

"The Assembly of States Parties might choose to implement countermeasures, but I don't believe advocating for the exclusion of Germany from the Rome Statute would be a desirable or effective response to non-compliance," Pelliconi tells TRT World.

The German government has been a staunch supporter of Israel with Chancellor Olaf Scholz repeatedly emphasising Germany’s special responsibility for Israel’s security due to the country’s Nazi past.

This burden, however, has often translated into a foreign policy that shields Israel without question, even when it commits the most heinous crimes, repeatedly violating international law.

The latest manifestation of this dynamic came last week when Germany pledged continued support for Israel, despite the ICC issuing arrest warrants for Netanyahu and Gallant over their conduct in the war on Gaza.

Asked at a press briefing in Berlin whether Germany would continue to back Israel, government spokesperson Steffen Hebestreit said: “Our stance towards Israel remains unchanged.”

In a controversial move, Berlin also resumed arms supplies to Tel Aviv last month, despite its blanket support for Israel increasingly leading to its global isolation.

The government spokesperson added that while his country generally supports the ICC, it has not yet decided whether to implement the arrest warrant for Netanyahu and Gallant on their entry into German soil.

He also pointed to Germany's "unique relationship and great responsibility toward Israel" as a consequence of German history, suggesting this would factor into any decision-making process.​​​​​​​

Pelliconi doubts that Germany would outright refuse to comply with the ICC’s arrest warrants, though she notes their approach may be more nuanced.

“I don’t think we should interpret the statements of German politicians as an outright rejection of the arrest warrant. These statements are carefully crafted, reflecting political caution rather than openly criticising the ICC. Germany’s tone is far removed from the derogatory and intimidatory rhetoric of the US or Hungary’s extraordinary decision to invite Netanyahu for a visit,” she explains.

She further elaborates on Germany’s legal stance: “Germany is fully aware of its legal obligations under the Rome Statute. While their statements might seem frustrating, the key takeaway is that they didn’t rule out enforcing the warrants.”

“The underlying message to Netanyahu and Gallant is clear: they face a real risk of arrest if they step onto German soil. That, in itself, is already a significant outcome,” she explains.

What happens if Germany rejects ICC obligations?

Since Germany has expressed a more nuanced position, announcing respect for the ICC’s ruling but casting doubt on practical enforcement, the ultimate test of Berlin’s position will only become clear if Netanyahu or Gallant set foot on German soil.

But if Germany were to reject executing the ICC arrest warrants, it would undeniably undermine the rule of law while facing significant sanctions.

Under Article 86 of the Rome Statute, all States Parties must fully cooperate with the Court to support its mandate and as a party of the statute, and Germany has to do so, including executing arrest warrants.

Failure to arrest Netanyahu, however, would constitute non-compliance with its treaty obligations, undermining the ICC's authority and its ability to enforce accountability.

Asked about the implications if Germany were to officially reject the ICC ruling, Pelliconi says that it would violate its legal obligations under the Rome Statute, potentially leading the ICC to condemn Germany for non-compliance, as it did with Mongolia in September for failing to arrest Russian President Vladimir Putin, who is also under an international arrest warrant.

The ICC’s response to Mongolia's non-compliance was firm: it referred the matter to the ASP, which publicly reaffirmed the legal duties of member states.

“...The ICC found that, by failing to arrest Mr Putin while he was on its territory and surrender him to the Court, Mongolia has failed to comply with the Court’s request to cooperate in this regard contrary to the provisions of the Rome Statute,” said the Court.

While the ASP cannot enforce arrests, it wields considerable influence by applying political pressure and issuing formal condemnations to ensure compliance but typically does so through diplomatic means rather than punitive exclusion mechanisms because of the ICC's reliance on global consensus and support to function effectively.

"If the goal is to secure cooperation,” Pelliconi says, adding, “involving the Assembly can exert greater political pressure to encourage compliance”.

A contradiction in principles

Whether it decides to follow the ICC ruling, Germany's consistent support to the Netanyahu government sends a troubling message to Palestinians: their suffering is secondary to its historical guilt, perpetuating a cycle of impunity that emboldens further violence and injustice.

Critics argue that shielding Netanyahu reflects a selective application of Germany's historical lessons. Instead of embodying the commitment to "never again," Germany undermines justice and human rights by failing to hold Israel accountable.

“Germany should not defy the law out of fear of being labeled antisemitic. On the contrary, given its history, Germany has a moral obligation to uphold international law and justice,” says Pelliconi.

“In fact, criticising the Israeli government is not antisemitic. Many Jews and Israelis oppose the horrors taking place in Gaza and elsewhere,” she continues.

Notably, Theodore Meron, a Holocaust survivor and former Israeli diplomat, played a key role in advising the ICC Prosecutor on the arrest warrants.

“The Jewish people and Israeli politicians accused of war crimes are not the same. Claiming otherwise is what would truly be antisemitic,” Pelliconi says.