CHRIS STEPHEN: Tusk Chooses a Rock over a Hard Place

In blow to ICC, Polish leader says Netanyahu is immune at Auschwitz commemoration

By Chris Stephen

It was the political dilemma from hell, and officials in Poland’s foreign ministry would have realized it the day last November when the International Criminal Court indicted Israeli Prime Minister Benjamin Netanyahu for crimes against humanity in Gaza. That’s because just two months later he was due to be invited to their country for the 80th commemoration of the liberation of Auschwitz.

Poland’s prime minister Donald Tusk made his name in the European Union as an exponent of the liberal world order, of which the ICC is an integral part. So ignoring an ICC arrest warrant seemed an impossibility – but so was the prospect of Polish police handcuffing the leader of the Jewish state arriving to remember the epicentre of the Holocaust.

Ironically, it was Israel itself which last month offered Tusk a way out. It declared that neither Netanyahu nor former defense minister Yoav Gallant (the other official indicted by the ICC) would be attending the event where dignitaries including Britain’s King Charles will be present.

Instead, Jerusalem would be represented at the January 27 commemoration by Education Minister Yoav Kisch. That left Poland’s deputy foreign minister Władysław Bartoszewski free to declare: “We are obliged to respect the decisions of the ICC.”

But on Wednesday, Poland’s president Andrej Duda tossed in a grenade. He wrote to Tusk pleading for him to make an exception, in view of the momentous significance of the Auschwitz event. Unattributed sources that night indicated Poland would not change its position – but a day later came the about-turn: Without mentioning Netanyahu by name, Tusk agreed the immunity.

”I confirm, whether it is the prime minister, the president or the minister, as it is currently declared, of education of Israel, whoever will come to Oswiecim (the town adjacent to the former concentration camp) for the celebrations in Auschwitz will be assured of safety and will not be detained," Tusk said.

The mechanism for granting Israelis immunity is simple enough. Like all the ICC’s 125 member states, Poland is entitled to grant arrest immunity for officials of another state simply by declaring it, under Article 98 of the court’s statute.

But the political repercussions have only just begun. In the narrow sense, it represents a victory for Doda, a Trump-supporting bitter political rival of Tusk, who loathes the incoming US president. And it represents a savage defeat for the court: Article 98 is its Achilles' Heel because the court is not part of the UN, and is utterly dependent on its member states to arrest its suspects. Without those arrests, the Hague court risks becoming a paper tiger.

Already the Gaza indictments have threatened to split the ICC member states, between pro-Palestine and pro-Israel factions. Of the latter, France, Italy, Hungary and Greece have given Netanyahu Article 98 immunity and other countries including Argentina, Australia, Austria, the Cech Republic and the Netherlands are considering it.

Pro-Israeli states are unhappy at the apparent one-sided nature of the Gaza indictments. While the court has indicted the top officials in Israel, it has indicted only one Hamas official for the October 7 massacre, and he is likely dead.

Other factors may have been in play for Tusk. The same night he granted Netanyahu his immunity, the Republican House of Representatives passed a sanctions act against the ICC. Trump supporters in the Senate have warned sanctions will extend to any US ally supporting the court by indicting an American or an ally who is a citizen of a non-member-country, something for Poland’s government to ponder.

In addition, eagle-eyed lawyers in both Warsaw and Jerusalem had realized that even the presence of Israel’s education minister would be problematic: That is because the ICC makes a habit of issuing many of its indictments in secret, hoping to lure unsuspecting officials to the territory of a member country.

And the prosecutor has the power to charge an entire war cabinet, not just its leading lights, with war crimes, under the doctrine of collective responsibility. There is no way of knowing if secret - sealed, in ICC-speak - indictments have been issued, along with the public ones, and which members of Israel’s cabinet are affected. Even Poland would not know until a suspect arrives on their territory, and the computer flashes up with an ICC arrest demand.

Siding with the United States against the ICC thus solves one problem for Tusk, but at the risk of creating another. That’s because the army that liberated Auschwitz from its torment was Soviet. What, then, if Vladimir Putin opts to join world leaders at the event? Poland has many times commended the ICC for indicting Putin, in 2023, for alleged crimes in Ukraine. It can hardly give one indicted leader a pass, while clapping another in irons. All of which is likely to give Warsaw foreign ministry officials a few more sleepless nights.

Chris Stephen is the author of “The Future of War Crimes Justice,” published in 2024 by Melville House (London and New York) and “Judgement Day: The Trial of Slobodan Milosevic” (Atlantic Books, New York, 2005).