Netanyahu Has an ICC Arrest Warrant. Poland’s Promise to Ignore It Would Be a “Grave Mistake.”

Allowing Israel’s indicted Prime Minister Benjamin Netanyahu safe passage to a Holocaust memorial service in Poland next Tuesday would “make a mockery” of Europe’s commitment to the International Criminal Court, according to Josep Borrell, the European Union’s foreign affairs chief until last month. 

Netanyahu is wanted by the ICC for alleged war crimes committed during Israel’s 16-month war on Gaza, including using starvation as a method of warfare; deliberately attacking civilians; murder; and persecution. His former Defense Minister Yoav Gallant faces the same charges.

Yet Polish Prime Minister Donald Tusk last week waived his country’s legal obligations as an ICC signatory to arrest Netanyahu, instead offering the Israeli leader unhindered travel to the 80th Auschwitz memorial service on January 27.

“It would be a grave mistake for the Polish EU Presidency to welcome Netanyahu to an official Holocaust memorial ceremony,” Borrell, who stood down as head of the European External Action Service last month, told The Intercept. “This would make a mockery of the EU’s strong commitment to the International Criminal Court, which the EU27 unanimously reaffirmed in June 2023.”

Without mentioning Poland by name, Sven Koopmans, the EU’s Middle East peace envoy, told The Intercept that the ICC was “supported by the entire EU including the institutions and the 27 member states — and that includes all that comes with it.”

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It is unclear whether Netanyahu will attend the Auschwitz service, as he has in the past. Tusk’s offer has proved unpopular in Poland, and lawyers have warned of “immediate and robust legal action” in the Polish courts, if Netanyahu sets foot on Polish soil. 

Israeli press reports suggest that Israel’s Education Minister Yoav Kisch may go in Netanyahu’s place, and the Israeli PM’s spokesperson did not return emails, texts, or calls on the subject.

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The ICC is already coming under attack from the new U.S. administration of Donald Trump, who has long sought to shut the court down. That political crisis could be compounded if Poland bestows impunity on Netanyahu by allowing an unfettered visit, undermining the court from within.

“Treating the Rome Statute like an à la carte menu would not only set a very dangerous precedent for the international criminal justice system it would undermine respect for EU treaty obligations at large,” Borrell said. “If Poland, or any other EU Member State, welcomes an ICC fugitive indicted for crimes against humanity, do we really expect others to take us seriously when we ask them to enforce the arrest warrant against Putin?”

Yet if Netanyahu avoids Poland, it will highlight the extent to which he has become persona non grata in the wake of bloody onslaught on Gaza that has sparked genocide charges in The Hague.

An Outrageous Invitation

The ICC has 120 member states that are obliged to fulfill its arrest warrants. But Italy, France, and Hungary have all said that they would not arrest Netanyahu, with Hungary’s Prime Minister Viktor Orbán going so far as to say he would invite him to Budapest.  

Poland signed on to an EU Council statement in June 2023 backing the ICC system to lead the fight against impunity and “bring justice to victims everywhere.” It also called for the “prompt execution of outstanding arrest warrants.”

Tusk’s office did not respond to requests for comment on how the exemption for Netanyahu was consistent with Poland’s obligations. The Polish prime minister has previously defended the red carpet offer to Netanyahu as a way of “paying tribute to the Jewish nation, millions of whose daughters and sons became victims of the Holocaust.”

Netanyahu, though, is a polarizing figure, who has previously appropriated the issue to compare October 7 to the Holocaust, and Hamas to the Nazis. He has falsely blamed Palestinians for the Holocaust, triggering widespread condemnation.

Two survivors of the Nazi genocide who have spoken out against the killing of over 47,000 Palestinians in Gaza told The Intercept that they were disgusted by Tusk’s planned guest list.

Gabor Maté, 81, who survived the Holocaust as a baby in the care of strangers while much of his family perished, described Tusk’s offer as “a travesty, a betrayal of all humane principles and international law, and a cynical political move to curry favour with the US. Netanyahu does not represent the ‘Jewish nation.’ An increasing number of Jews internationally are appalled by the horrors inflicted in their name by the state he leads.”

Stephen Kapos, 87, is one of them. A Hungarian Jew who survived the Holocaust in a shelter run by a Protestant church, his father was sent to the Bergen-Belsen concentration camp, and many of his relatives were killed. He depicted the reserved seat for Netanyahu at the memorial as “a desecration of the sacred memory of Holocaust victims.”

“Netanyahu is a straightforward war criminal and Poland’s decision to provide him with assistance, a platform and safe passage is an outrage,” he said. “He even made a statement in Yad Vashem” — Israel’s Holocaust memorial — that ‘never again is now,’ linking what they were doing to the Palestinians with the Holocaust. It’s criminal to do that. They’re openly enacting a genocide in Gaza. There’s no other interpretation when 2,000-pound bombs are indiscriminately raining down on civilians.”

“Netanyahu shouldn’t be at an Auschwitz memorial. He deserves to be hauled up for trial in The Hague.”