Borrell’s stance on Israel, Hamas arrest warrants highlights EU member states’ divisions

Following a request from the International Criminal Court (ICC) to issue arrest warrants against Israel’s prime minister and foreign minister and two Hamas officials for a rap sheet of war crimes, the EU’s chief diplomat Josep Borrell was clear the court should be respected, but not all member states are convinced, once again bringing divisions to the fore.

The crimes allegedly committed by Israel include the starvation of citizens as a method of warfare, willfully causing great suffering, wilful killing, intentionally directing attacks against civilians, murder by starvation, persecution and other inhuman acts. Meanwhile, Hamas’ top brass are accused of extermination, murder, taking hostages, torture, rape, and cruel treatment, amongst others.

Prosecutor Karim A.A Kahn KC has requested an arrest warrant, which the court will consider.

Noting Kahn’s decision, Borrell took a clear stance, writing on X: “The mandate of the ICC, as an independent international institution, is to prosecute the most serious crimes under international law.”

“All States that have ratified the ICC statutes are bound to execute the court’s decisions”, he added.

However, not all member states are following the same line, highlighting divisions that have intensified since the Hamas attack on Israel and the subsequent invasion of Palestine in October.

Sticking to historical lines

Germany, which has firmly supported Israel due to historical reasons, said it “respects the independence and procedures” of the International Criminal Court (ICC) but said it has concerns about jurisdiction and the complementarity of investigations between constitutional states affected, such as Israel.

“The simultaneous application for arrest warrants against Hamas leaders on the one hand and two Israeli officials (Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant) on the other has created the incorrect impression of equivalency,” the statement continued.

Between 7 October 2023 and 13 May, over 36,000 Palestinians have been killed by Israel, including a majority of women and children, not counting those who remain missing. In Israel, the death toll is around 1,400, and some 252 people have been taken hostage.

As for the question of jurisdiction, all EU member states and EU candidates – except Ukraine and Turkey and along with Russia, China and the US – recognise the Hague-based court’s jurisdiction to examine cases of genocide, crimes against humanity, and war crimes committed after 1 July 2002.

Another staunchly pro-Israel country, Czechia, spoke in even stronger terms, calling the decisions “appalling and completely unacceptable” and stating the actions of Hamas in October are the reason for the death toll in Gaza today.

“We must not forget that it was Hamas that attacked Israel in October and killed, injured and kidnapped thousands of innocent people. It was this completely unprovoked terrorist attack that led to the current war in Gaza and the suffering of civilians in Gaza, Israel and Lebanon,” said Prime Minister Peter Fiala.

In the UK, which has also been criticised for its support of Israel, including the sending of weapons, the spokesperson of Prime Minister Rishi Sunak criticised the development, saying it “is not helpful about reaching a pause in fighting, getting hostages out, or getting humanitarian aid in.”

“The UK, as with other countries, does not recognise Palestine as a state, and Israel is not a state party to the Rome Statute”, which outlines the ICC’s areas of jurisdiction, the spokesperson added.

Italy’s Foreign Minister Antonio Tajani said it is “unacceptable” to equate the Israeli democratic government with the Hamas terror group.

“It seems to me truly singular, I would say unacceptable, to equate a government legitimately elected by the people in a democracy with a terror organisation action that is the cause of everything happening in the Middle East,” Tajani said during a TV interview.

The court must be respected

Belgium’s Minister of Foreign Affairs, Hadja Lahib, said any crimes committed in Gaza must be prosecuted at the highest level. 

“The request submitted by the Court’s prosecutor, Karim Khan, for arrest warrants against both Hamas and Israeli officials, is an important step in the investigation of the situation in Palestine,” she wrote on X.

“Belgium will continue to support the essential work of international justice to ensure that those responsible for all crimes are held accountable,” the minister added.

Ireland’s Foreign Minister called on the international community to “respect the independence and impartiality of the ICC” after the court came under fierce criticism from the US and Israel.

“Ireland condemns recent threats against the ICC and its officials – its role in ending impunity is essential,” Ireland’s foreign minister, Micheal Martin, said on X.

Slovenia’s government also issued a statement stating that crimes against humanity in Israel and Palestine should be prosecuted independently and impartially as “Accountability is crucial to prevent atrocities and to guarantee peace.”

In Austria, Chancellor Karl Nehammer wrote that while “We fully respect the independence of the ICC,” he could not understand Hamas and Israel being mentioned “at the same time”.

What happens next?

A panel of three judges will now decide whether the arrest warrants are issued, a process expected to take two months.

While Israel is not a member of the court and its leaders are not at risk of prosecution if the warrants are issued, the threat of arrest is symbolic and could pose a risk of arrest if they travel to an ICC member state.

The news from the ICC also comes as Netanyahu is facing increasing pressure at home from both the public and his cabinet to bring hostages home and spell out a clear post-war way forward.

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