Should Benjamin Netanyahu be prosecuted? The Sunak government tried to stop it happening, but now the Starmer administration must decide where it stands.
Back in May, the prosecutor of the international criminal court applied for an arrest warrant against Netanyahu for war crimes involving the indiscriminate bombing of civilians – more than 15,000 children have been killed so far – and the starvation of citizens in Gaza.
It is down to the court to decide whether the evidence is sufficient to put him on trial. But Sunak’s government, on behalf of the UK, has quietly tried to stop the court by announcing its intention to argue that Israel has impunity in Gaza, and can commit any war crime there that it chooses. This was a disgraceful initiative, but the ICC has now given Starmer’s government the opportunity to decide whether or not it wishes to continue this intervention. If it does, this will be its first big moral mistake.
Palestine was accepted as a member state of the ICC in 2015, and in 2021 the court ruled that it had jurisdiction (that is, the legal power) to investigate and punish Israeli war crimes in Palestine. Some other member states objected, although Britain was not among them. But now Britain is attempting to derail the prosecution by claiming that an obscure agreement in 1995 prevents Israelis (but not anyone else, including the Hamas leaders against whom arrest warrants have also been sought) being prosecuted for crimes in Gaza.
The UK application was made in May. But last week the Foreign Office woke up to the fact that there was an election and its case might not sit well with a new government. It begged for an extension of time to present its argument and this was granted, until the end of July. By that time the foreign secretary must decide whether it will go ahead with what amounts to a claim that Israel is entitled to impunity in Gaza.
The argument, first propounded by Israel, is that the Oslo accords between Yasir Arafat and Ehud Barak in 1993-1995, reached with the help of Norwegian mediators, preclude Palestine from prosecuting Israelis. The ICC decided in the 2021 case that this was “not pertinent” to its right to punish crimes in Gaza as Palestine was a member state, so any war crime on its territory fell within the ICC’s remit.
Of course, this question could be raised by Netanyahu himself during the case, if it was to go ahead. Why Britain has decided to raise it now is a mystery: David Cameron gave no explanation, and there are suggestions that it has been filed at the behest of the White House. The US is not a member of the ICC, and expects the UK to look after its interests there. Joe Biden denounced its prosecutor for bringing the case against Netanyahu – although, of course, he was full of praise when he sought a warrant for Vladimir Putin.
The obvious reason why the foreign secretary should drop this benighted initiative is that it is a legal nonsense. The Oslo accords are a dead letter. They were an early attempt at a two-state solution that ended a few years later with the failure of Bill Clinton at Camp David. Both sides have breached these accords – Israel, most notably, by encouraging illegal settlements. The ICC was not even in existence in 1995 (it was not established until 2002), and the idea that a provisional clause in a moribund negotiation 30 years ago can prevent it from acting over breaches of international criminal law now is preposterous.
Israel’s argument, adopted (so far) by the UK, is that Palestine is precluded from prosecuting Israelis and this means it cannot “delegate” such prosecutions to the ICC. This is wrong because the ICC prosecutor is in no sense a delegate of Palestine. Karim Khan KC is an independent prosecutor who has collected evidence that he will bring to the court to ask it to issue an arrest warrant. He has no connection with Palestinian authorities.
Meanwhile, the ICC operates on the level of international law and takes no account of domestic law with its amnesties and immunities and limits on prosecutions. The fact that authorities in Gaza have not prosecuted Israelis does not prevent the ICC doing so in the sphere of international criminal law. If the argument adopted by the UK is correct, there would be nothing to stop the Israel Defense Forces lining up Palestinian children and executing them point-blank. There would be no accountability for any crime against humanity they might commit.
That is why the argument is wrong and an explanation is needed as to why the UK told the court last month that it intended to advance it. Presumably the UK legal submission, which was due this week but has now been postponed for two weeks, has already been drawn up and public money will have been spent on retaining expensive KCs to draft it. It must be urgently reviewed by the new attorney general (a sound international lawyer) and the foreign secretary, David Lammy – and then withdrawn.
Last week, the Foreign Office told the Guardian it had acted because it was “imperative” for the court to consider the Oslo accords. It is not – unless Netanyahu raises them in his defence or another member state intervenes to take this bad point. Why should the UK waste its time and money, and worsen its image in the human rights world, by making this mistaken and advancing pettifogging argument that there should be no international justice for crimes against humanity in Gaza if committed by Israelis?
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Geoffrey Robertson KC is former president of the UN’s war crimes court in Sierra Leone. His latest book is The Trial of Vladimir Putin
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