When Israeli Prime Minister Benjamin Netanyahu visits Hungary, it is virtually certain he will not be detained despite an arrest warrant from the International Criminal Court (ICC) over alleged war crimes in Gaza.
As a signatory to The Hague court, Hungary has an obligation to arrest him, but its domestic legal situation is complicated and has given the government enough wiggle room to welcome him.
Hungarian Prime Minister Viktor Orban publicly extended an invitation to Netanyahu in November shortly after the ICC issued the warrant. The Israeli leader was scheduled to arrive on April 2 for a four-day visit.
"I will guarantee him, if he comes, that the judgment of the ICC will have no effect in Hungary," Orban said.
Meanwhile, diplomatic sources inside Hungary told RFE/RL that the country had decided to withdraw from the ICC, though this could not be immediately confirmed officially.
What Are The Political Reasons?
The politics of all this are clear. Orban has closely aligned himself with Netanyahu and with US President Donald Trump, who has also criticized the court's warrant.
Trump issued sanctions against the ICC last month, criticizing as "baseless" its arrest warrants for Netanyahu and former Israeli Defense Minister Yoav Gallant.
Hungarian Foreign Minister Peter Szijjarto welcomed the decision with a social media post, accusing the ICC of being a "political tool."
The indictment says Netanyahu is "allegedly responsible for the war crimes of starvation as a method of warfare and of intentionally directing an attack against the civilian population; and the crimes against humanity of murder, persecution, and other inhumane acts from at least 8 October 2023 until at least 20 May 2024."
What's The Legal Position?
The legal situation is more complex. The court cannot arrest anyone; rather, it relies on countries who have signed onto the treaty creating the court -- the Rome Statute -- to enforce its warrants.
"It is not for states to unilaterally determine the soundness of the court's legal decisions," court spokesman Fadi El-Abdallah told RFE/RL. He said it was a "legal obligation to the court" to enforce them.
This view was endorsed by two senior lawyers who spoke to RFE/RL.
"If Mr. Netanyahu visits a state party like Hungary or Germany and is not arrested, this state violates its obligations under the Rome Statute of the ICC," said Kai Ambos, professor of criminal and international law at Germany's Goettingen University.
"The nonexecution of ICC arrest warrants undermines the court's legitimacy," said Ambos, who serves as a war crimes judge at the Kosovo Specialist Chambers, an international court set up for crimes committed during the 1990s Kosovo conflict.
Tamas Adany, an associate professor of international law in Hungary, agreed with this but also pointed to a nuance.
"Globally speaking, there are countries where, whenever they ratify an international treaty, it becomes part of the law of the land," he said.
"Most other countries, where the typical language of multilateral treaties is not an official language…rely on a process called promulgation" to make an international obligation part of national law, he said.
Hungary ratified the Rome Statute in 2001 under the first Orban government. But it has never carried out the second step, which basically amounts to incorporating the statute into the country's own national legal code.
"The question is hard because Hungary is under a legal obligation from the perspective of international law to comply with this. But Hungarian national law does not make it possible for the authorities [to do so]," Adany said.
This reasoning has also been used by the Hungarian authorities.
"Thanks to former President Janos Ader, we had the sense to never make it part of domestic law," government spokesman Gergely Gulyas said on March 13.
Yet Adany said the law was not entirely clear on this point, because Netanyahu is accused of crimes that have been considered part of customary international law since the 1940s.
"I'm very positive that those parts of the Rome Statute, which are considered by a majority of states to be customary international law in nature, should be enforced in Hungary even without a formal promulgation," he said.
Is Hungary Alone?
Gulyas pointed to another reason for not arresting Netanyahu. When the court warrant was issued, Germany offered an ambiguous response.
"I find it hard to imagine that we would make arrests on this basis," government spokesman Steffen Hebestreit said, adding that legal questions had to be clarified about the warrant.
Then, in January, Christian Democrat leader Friedrich Merz said he would find "ways and means" to invite Netanyahu to Germany. Merz's party subsequently won federal elections, and he is now preparing to take office as the country's next chancellor.
Gulyas, the Hungarian government spokesman, seized on this.
"Since a country of Germany's size and power thinks that it must disregard its own domestic law because the decision of the International Criminal Court is so absurd, what is the point of the whole thing?" he said.
What Would Be The Consequences?
Merz's comments were hugely controversial in Germany.
Ambos said there could be "sanctions" for not carrying out an arrest warrant, imposed by the ICC's Assembly of State Parties, which is responsible for various court matters, including the election of judges and prosecutors and setting its budget.
"Such a situation just arose with regard to Vladimir Putin's visit and nonarrest in Mongolia," he added, referring to the Russian president's visit there in September.
Putin is wanted for the war crime of abducting children from Russian-occupied Ukraine.
"The consequence for Hungary is that we may possibly lose our voting rights in the Assembly of States Parties," Adany said, adding there could be a "judicial investigation into this conduct of Hungary."
The political fallout might be quite limited.
Hungary is already highly isolated within the European Union, where it has been accused of democratic backsliding and curtailing media freedom. Its pro-Russia positions have also led to diplomatic problems.
"I'm absolutely positive that the arrest is not going to happen," Adany said. "Netanyahu is going to travel home safely."
The Hungarian government did not immediately respond to RFE/RL's questions for this article.
