Berlin, Germany – After a successful election campaign, conservative Christian Democrat (CDU) leader Friedrich Merz stood in front of journalists at his party’s headquarters in Berlin in high spirits. Merz is likely to become the new chancellor, probably with the centre-left Social Democrats (SPD) as his coalition partner.

The 69-year-old said that he had received numerous congratulations on Sunday evening and during the night. One of the well-wishers was Israel’s Prime Minister Benjamin Netanyahu. Merz relayed that the two had had a lengthy telephone conversation and added that Netanyahu had called him. And then Merz dropped a sentence that has since caused quite a stir in German politics.

“I have also promised him that we will find ways and means for him to visit Germany and also to be able to leave again without being arrested in Germany,” Merz said. “I think it is a completely absurd idea that an Israeli prime minister cannot visit the Federal Republic of Germany.”

Representatives of the other political parties in the Bundestag were outraged. In November last year, the International Criminal Court in The Hague, Netherlands, issued an arrest warrant for Netanyahu and former Israeli Defence Minister Yoav Gallant.

The ICC concluded that there are sufficient grounds to believe that they were complicit in crimes against humanity and war crimes in the Gaza Strip. An arrest warrant was also issued for Mohammed Deif, one of the leaders of the Palestinian militant organisation Hamas, which has been classified by the US, EU and Germany as a terrorist organisation. Deif was later killed in an Israeli air strike during its military assault on Gaza.

The SPD is currently preparing to enter coalition talks with the CDU and its sister party, the Christian Socialist Union (CSU), under the leadership of Merz. “We respect its procedures and the decisions of its organs. This applies without exception,” SPD foreign policy expert Nils Schmid said of the International Criminal Court.

However, Schmid told Reuters news agency that clever diplomacy requires the government to ‘find suitable ways and means of maintaining close relations with the Israeli government in the future’. This appears to suggest that meetings with Netanyahu would have to take place elsewhere, not in Germany.

Germany is one of the biggest supporters of the ICC, which began its work in July 2002 and has 125 member states. However, global powers such as the US or Russia are not among them. And neither is Israel.

An important point about the current case against Netanyahu is that the court has no possibility of executing the arrest warrants itself. However, its member states, including Germany, are formally obliged to arrest wanted persons if they are on their territory. So if Netanyahu were to come to Germany, he would have to be arrested. Merz left open what ‘ways and means’ there could be to avoid such an arrest.

In any case, Netanyahu used the call with Merz once again to clarify his view of the situation. The Israeli government announced that Merz had been invited ‘in open defiance of the scandalous decision by the International Criminal Court to classify the Prime Minister as a war criminal’.

In recent months, the outgoing German government, which is still in office, had tried to sidestep the sensitive issue. After the warrants were issued in November, a German government spokesperson stated: “On the one hand, there is the importance of the International Criminal Court, which we very much support. And on the other hand, there is the historical responsibility. I could be tempted to say that I find it difficult to imagine us making arrests in Germany on this basis.”

Throughout the duration of the war in Gaza, the German government has consistently expressed staunch support for Israel in word and in deed, including weapons exports. Due to its history, Germany has in recent years increasingly expressed that unfailing support for Israel is part of its ‘reason of state’, although that political principle is not buttressed by law.

Does this also apply to the respective Israeli head of government? In any case, the government led by the SPD’s Olaf Scholz was visibly pleased that a visit by Netanyahu to Germany was not on the cards. In fact, the last time Israel’s prime minister was in Berlin for political talks was in March 2023, a good six months before Hamas attacked Israel on October 7.

As with around ten other countries, Germany holds government consultations with Israel, namely meetings between the entire cabinets of both sides. The meetings are intended to highlight special bilateral relations. The first such meeting took place in Jerusalem in 2008 under then Chancellor Angela Merkel(CDU), and the last was in October 2018.

In his blog, the international law expert Kai Ambos from the University of Göttingen explained that the government has no discretionary powers should Netanyahu come to Germany. The German judiciary and authorities are obliged to transfer a person wanted on a warrant, for example. This is a matter for the judiciary, not politics.

“If Israeli Prime Minister Netanyahu were to actually visit Germany, this would not only provoke an – entirely unnecessary – conflict with the ICC, but would also call into question the domestic separation of powers. This is because in order to prevent Netanyahu’s arrest, the executive – at both federal and state level – would have to intervene massively in the arrest and transfer procedure described above and thus in the independence of the judiciary,” Ambos continued.

It is unlikely that Merz misspoke. Even during the election campaign, the CDU leader had repeatedly emphasised that Israel’s Prime Minister would not be arrested in Germany if he became chancellor. Hungary’s Prime Minister Viktor Orban, who made a point of inviting Netanyahu to Budapest after the arrest warrant was issued in November last year, has also made a similar statement.

DW