A state visit to Germany at all costs?: Why Merz cannot avoid Net­anyahu's arrest legally

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It should not have come as a surprise that Germany's likely new chancellor, Friedrich Merz, wants to invite Israeli Prime Minister Benjamin Netanyahu to Germany. The leader of the Christian Democratic Party (CDU) had signalled it several times during his election campaign, yet the news caused a stir the morning after election day when Merz said at a press conference in Berlin: "I think it is a completely absurd idea that an Israeli Prime Minister cannot visit the Federal Republic of Germany. He will be able to visit Germany." The problem is: The International Criminal Court (ICC) issued an arrest warrant for Netanyahu for crimes against humanity and war crimes committed in Gaza. Germany is obligated to execute the warrant by arresting the wanted person and surrendering them to the ICC in The Hague.

Merz wants to avoid this somehow. He has promised Netanyahu that he will "find means and ways" for Netanyahu to visit Germany and to leave without being arrested. What this would look like is unclear. Merz's office did not answer to a request for specification by LTO.

It is far from obvious how a German chancellor could override an ICC arrest warrant or suspend its legal consequences. From a political standpoint, he could intervene in the administrative process of detaining and surrendering Netanyahu, but this would be illegal according to experts. The ICC statute leaves no room for political discretion when executing arrest warrants. Additionally, due to the separation of powers and the federal division of responsibilities, Merz has no control over the judicial system or state governments.

Federal Ministry of Justice as the mailroom of Germany

Practically speaking, Merz has two options.

The straightforward way would be to instruct the new Federal Minister of Justice, as one of Merz's cabinet members, to intervene. The Ministry of Justice handles the ICC's requests in accordance with the Federal Foreign Office and other ministries involved. This process is codified in section 68 of the German Act on International Cooperation with the International Criminal Court (IStGHG) which incorporates the ICC's founding Rome Statute into national law. 

"The idea is right: the German government shall be involved in international requests for mutual legal assistance, especially those from the ICC", says Nikolaos Gazeas, a lawyer specialized in extradition law. "However, the Federal Ministry of Justice does not review whether the arrest warrant issued by the ICC is lawful. It must forward the request for arrest to the responsible prosecutor's office."

There the actual procedure of searching, arresting and surrendering the wanted person begins. Normally – as normal as prosecuting suspected war criminals can be – the prosecutor's office will not start the search until the ICC sends a request for the arrest and surrender to the German government via the embassy in The Hague. According to Article 89 (1) of the Rome Statute, the ICC transmits this request to any state "on the territory of which the wanted person may be found." Both the Ministry of Justice as well as the Foreign Office informed LTO that they have not received a request for arrest and surrender of Netanyahu yet.

"In no way consistent with the law"

This means that Merz could instruct his future Federal Minister of Justice to ignore any such request by the ICC, so it will not reach the prosecutor's office. This would not violate the principles of the separation of powers or of German federalism, but it would still be illegal, according to Gazeas. "To ignore a request by the ICC is against Germany's obligations under the Rome Statute and is in no way consistent with the IStGHG. The statute leaves no room for political discretion."

If Netanyahu announces a visit to Germany, the ICC will probably request his arrest and surrender. Given the Federal Ministry of Justice forwards the request, the subsequent process would be in the hands of the state authorities. From there on, the federal government cannot directly influence the proceedings through orders. However, since the chancellor could still exert political pressure on state ministers, it could help that Berlin's Minister of Justice is Felor Badenberg, a fellow CDU member. It is Berlin's Attorney General and courts that are responsible for executing the ICC arrest warrant: pursuant to section 8 (3) IStGHG, the competent judiciary is determined by the seat of the federal government, as long as the wanted person has not yet set foot on German soil. Once that is case, e.g. if Netanyahu lands at BER airport, jurisdiction will change over to Brandenburg, where Benjamin Grimm is the Minister of Justice. Grimm is a member of the Social Democrats (SPD) – the presumable coalition partner of Merz's CDU for the new federal government.

Should Merz exert pressure on the State Ministers of Justice, they could, in theory, order the respective prosecutor's office to avoid an arrest of the Israeli Prime Minister. For obvious reasons, an executive order cannot be directed at the competent court, which here is the Higher Regional Court (Oberlandesgericht) responsible for the region where the wanted person is arrested or found. Sections 10–12 IStGHG formally require the Oberlandesgericht to translate the ICC's request for arrest and surrender into a domestic arrest warrant. However, as this decision can normally only be made upon request of the prosecutor's office in accordance with section 7(2) IStGHG, Badenberg and Grimm would have leverage here. They could instruct their prosecutor's offices – in accordance with section 147 no. 2 of the Courts Constitution Act (Gerichtsverfassungsgesetz) – not to submit the request for an arrest warrant to the Higher Regional Court of Berlin (called Kammergericht) or Brandenburg, respectively.

An illegal order

But that would also be illegal, says defense lawyer Gazeas. Neither the Rome Statute nor the IStGHG allow for such an order. Orders must not go against mandatory law and the law in this case is clear. The prosecutor's offices and the courts are bound in their decision and have no discretion, says Gazeas.

The prosecutor's office in Berlin is aware of that. "Just like the search for the wanted person, the issuing of an arrest warrant by the responsible Higher Regional Court is mandatory in the event of an arrest in Germany", says spokesperson Sebastian Büchner in response to an inquiry by LTO. "There is no room for discretion."

Kai Ambos, Professor for Foreign and International Criminal Law in Göttingen, who called Merz's announcement an overt defiance of the law on Verfassungsblog, stresses: Neither the judicial authorities nor the courts have any room for discretion here. Instead, they must comply with the ICC's request.

No review of the legality of the arrest warrant

Art. 59 (4) of the Rome Statute also makes this unmistakably clear: "It shall not be open to the competent authority of the custodial state to consider whether the warrant of arrest was properly issued", the second sentence reads.

According to Ambos, this does not change even after the arrest in the subsequent process of surrendering the wanted person to the ICC. Netanyahu could, in principle, seek legal protection here. An arrested person wanted by the ICC, just like in the case of domestic arrest warrants, must be brought before a judge immediately after the arrest. However, the court will only review the personal data and the arrest warrant to determine whether it has since been revoked or its execution suspended.

The arrested person can also request the suspension of the arrest warrant according to section 16 (2) IStGHG and Article 59 (4) of the Rome Statute if there are "urgent and exceptional circumstances" justifying the interim release. However, this would not be a final release and Germany would have to ensure that it can still fulfill its obligation to surrender Netanyahu to The Hague. As this procedure takes place solely before the courts, neither the federal nor the state government have any influence.

However, government under Merz has leverage during the surrender. According to section 6 IStGHG, the procedure requires the authorization by the Federal Ministry of Justice, which shall seek consultation with the Federal Foreign Office. But blocking the transfer would also violate the provisions of the Rome Statute and the IStGHG, according to Ambos and Gazeas.

Regardless of the specific proceedings, these regulations are based on the understanding that ICC member states must comply with a request for arrest and surrender from the Court. "Of course, this doen't say anything about whether the ICC arrest warrant as such is legally correct or not", Gazeas adds.

Criticism of the arrest warrant

The arrest warrants issued by the ICC against Netanyahu and his former defence minister Yoav Gallant in November 2024 have been widely criticised. The warrants were issued for alleged war crimes and crimes against humanity. At the same time, the Pre-Trial Chamber also issued an arrest warrant for Mohammed Deif, a former Hamas leader who was killed in July 2024. LTO summarized the accusations in detail.

The jurisdiction of the ICC over the Palestinian territories and therefore Gaza is particularly controversial among international law experts. The same Pre-Trial Chamber affirmed this with a narrow majority in 2021. By two votes to one it ruled that Palestine had become a State Party to the Rome Statute through the ratification but left open whether Palestine generally meets the definition of a state. Some international law experts, both national and international, consider this to be inconsistent. 

However, even if one disagrees with the ICC, this does not invalidate the arrest warrant. The person affected by a court decision issued against them can file an appeal – as Israel did in the case of Netanyahu. The decision of the ICC Appeals Chamber is still pending and as long as the arrest warrant is not withdrawn, Germany, like the other 124 State Parties, must adhere to it. The only exception to that would be if the ICC clearly does not have the authority to issue the arrest warrant for Netanyahu because it exceeds the legal scope of the Rome Statute, i.e. if the Court acted ultra vires. This was argued by Matthias Friehe, a Professor for Constitutional and Administrative law, in an op-ed in the Frankfurter Allgemeine Zeitung (FAZ) in May 2024.

The immunity dispute

Friehe also emphasizes the immunity of foreign heads of state during state visits that he considers customary international law. In that case the immunity rule would fall under Article 25 of the German Constitution (Grundgesetz). It would, therefore, be supreme to international treaties like the Rome Statute, which are incorporated into statutory law according to Article 59 (2) Grundgesetz.

Nine renowned colleagues responded to both of Friehe's objections in a direct reply. These "do not reflect the current state of international law", they say in a joint op-ed, which was also published in FAZ. Co-authors Stefanie Bock and Julia Geneuss (together with Aziz Epik, who did not co-author the article) have affirmed their view to Beck-aktuell and to LTO. They are professors for international criminal law. International law professor Christoph Safferling from the University of Erlangen-Nuremberg also told Tagesspiegel that Germany is obligated to implement the arrest warrant. The experts don’t see any obvious overstepping by the ICC; however, they do not explicitly address the theoretical option of ultra vires control.

On the immunity defense, the professors point to an ICC ruling from 2019 concerning Jordan's failure to surrender former Sudanese president Omar al-Bashir to The Hague. Jordan also invoked the immunity argument which was rejected by the ICC. According to Article 27 of the Rome Statute, heads of state and government cannot generally invoke their personal immunity before the ICC. This also applies if the home state of a wanted person – like Sudan and Israel – is not a State Party. According to the nine international law experts, this rule, that is also in line with decisions of other international criminal tribunals, has become customary law. Given that, it is not the recognition of immunity but its non-recognition that is supreme to statutory law. If a new Merz-led German government did indeed invoke this argument to guarantee Netanyahu safe passage, it would signal that it thinks it knows international law better than international courts and a majority of renowned international law experts.