The cause of international justice was dealt a severe blow on Thursday with arrest warrants issued for Israel’s Prime Minister, Benjamin Netanyahu, and its former Defence Minister, Yoav Gallant.
The International Criminal Court took this brazen political move in circumstances where it has no jurisdiction, in breach of its own rules and on the basis of false information.
Jurisdiction is what separates international legal institutions from political ones. The ICC’s jurisdiction is derived from its member states and from other states that accept its jurisdiction over their nationals and their territory. However, Israel did not join the ICC, and the Palestinian Authority is not a state, so neither has delegated any jurisdiction to the ICC.
Further still, the international agreements that created the Palestinian Authority (the Oslo Accords) explicitly said that Israel would have sole criminal jurisdiction over Israelis. So even if the Palestinian Authority could delegate any jurisdiction to the ICC, it had no criminal jurisdiction over Israelis to delegate.
The rules of the ICC have been thrown out of the window. A founding principle of the Court is “complementarity”: the ICC is a complement to national legal systems; it does not replace them.
Where a nation is willing and able to investigate credible allegations, it must be left to do so. Israel has a robust legal system and a history of successful prosecutions of its top leaders. Even if that were not the case, the timing of this application, made during an ongoing war, on the very day that the ICC Prosecutor’s staff were scheduled to meet Israeli officials to organise a visit to Israel to discuss his “concerns”, is a clear indication that the complementarity rule has been completely disregarded.
Perhaps even more concerning than the “legal technicalities” of a lack of jurisdiction and abandonment of the Court’s rules is the incorrect ground the warrants have been based upon. The Prosecutor’s public summary of his application, endorsed by some celebrity “experts”, contained only false material.
Every phrase of every sentence was untrue. How could the Prosecutor have got this so wrong, when publicly available information puts the lie to the allegation of starvation and when Israel’s conduct in this conflict has been unparalleled in protecting civilians from harm, a far higher standard that the UK or US acknowledge they could meet? Even more concerning was the Prosecutor’s response to being called out by multiple organisations writing as amicus curiae (“friends of the Court”). “Nothing to see here” was the reply.
The unprecedently public nature of Khan’s application and the subsequent granting of these warrants is a further give-away of the political game that is being played. “Real” arrest warrants for genuine suspects are issued in secret without press conferences and media interviews. But here the anti-Israel optics are the main objective.
Who are the winners of this dastardly enterprise? The internationally proscribed terror group Hamas publicly thanked the Court for its interventions on its behalf. But the message that is sent by this disgraceful development is one of encouragement to terror organisations the world over. It is an unconscionable attack on the inherent right of self-defence that other democratic states may well seek to exercise against similar fundamentalist terrorist organisations in the future.
The incoming US administration has plainly recognised this as an attack on law, liberty and liberal values. It understands the dangerous consequences that this decision has for other states, members and non-members alike, now that the Court has departed from the requirement of jurisdiction.
Keir Starmer’s equivocation indicates he is not entirely ignorant of the political game being played. One can only hope he will find the fortitude to stand up to the Israel-haters in his party and act in the UK’s national interest by calling out the politicisation of international legal institutions.Â