Published in the Jerusalem Post, 8 July 2024:
It was on May 20, 2024 that Karim Khan KC, a British jurist and chief prosecutor of the International Criminal Court (ICC), applied to the court to issue international arrest warrants against three Hamas leaders and also against Israel’s prime minister Benjamin Netanyahu and defense minister Yoav Gallant.
On June 10, Britain’s then-Conservative government, acting as a so-called "amicus curiae” (or friend of the court), asked to submit some observations to the ICC regarding prosecutor Khan’s request for arrest warrants against Netanyahu and Gallant.
On June 27 the ICC authorized the UK to submit written observations regarding the Court’s jurisdiction over Israeli nationals within the context of the Oslo Accords. Other interested parties could also submit observations until July 12, 2024.
Since that ICC order, a general election in the UK has swept the Conservatives from power, and the nation is now ruled by a Labour government with an overwhelming majority. The question must arise as to whether Britain will continue to press its previously held legal opinions on the ICC.
Shortly after Kahn had applied for his arrest warrants, Andrew Mitchell, deputy foreign secretary in the UK’s previous administration, told members of parliament: “As we have said from the outset, we do not think that the ICC has jurisdiction in this case. The UK has not recognized Palestine as a state, and Israel is not a state party to the Rome statute.”
At the time Labour neither endorsed nor rejected this position, but on June 23 David Lammy, now Britain's foreign minister, said: “Labour would comply with an ICC arrest order for Netanyahu” should one be issued.
This report could possibly be the precursor to a decision by the new Labour government to withdraw the legal objections the UK intended to lodge with the ICC concerning the issue of international arrest warrants against Israel’s prime minister and defense minister.
What is the legal case the UK wished to submit to the ICC?
It specifically aims to address “whether the Court can exercise jurisdiction over Israeli nationals in circumstances where Palestine cannot exercise criminal jurisdiction over Israeli nationals pursuant to the Oslo Accords.”
In its submission, the UK intended to refer to a 2021 decision by the ICC’s Pre-Trial Chamber which specifically left open this particular point, stating that it would consider it, should it ever arise in the future.
The Guardian says that a former ICC official familiar with the 2021 case has said the jurisdictional issues had been resolved and, if challenged, would be “dead on arrival”. It quotes one legal expert who claims “it would beggar belief” if the judges decided that Palestine, an ICC member state, “could not ask the court to address atrocities committed on its territories because of a moribund Oslo peace process”. Another believes the UK’s attempt to challenge ICC jurisdiction using the Oslo accords was “deeply troubling and unjust”.
More to the point, perhaps, was the comment by Clive Baldwin, a senior legal adviser at Human Rights Watch:
The application to be placed before the ICC by Britain turns on a rather abstruse legal issue. It has nothing to say about the grounds quoted by the ICC’s chief prosecutor for applying for arrest warrants against Netanyahu and Gallant in the first place. If the ICC judges eventually determine that they have the jurisdiction to do so, the validity of Kahn’s application will also have to be determined.
Kahn’s warrant application, with its implication of an equivalence between the crimes of Hamas and Israel’s defensive response, and the supporting arguments for the application in respect of Netanyahu and Gallant, raised instant objections across the world including from US president Joe Biden.
“The ICC prosecutor’s application for arrest warrants against Israeli leaders is outrageous,” he said. There was “no equivalence — none — between Israel and Hamas”.
It was the Hamas-inspired term “collective punishment” that Khan used in his application, stating as a fact that Israel indulged in “collective punishment of the civilian population”. This is an unproven subjective conclusion, emanating from Hamas’s anti-Israel publicity office, and assiduously disseminated to the world’s media. Khan substantiates it by accusing Israel of “deliberately” starving the Gaza population, “wilfully” causing them great suffering, serious injury and death, and “intentionally” directing attacks against them, murdering and persecuting them.
Khan simply makes these assertions without offering any proof that the actions he lists were deliberately, wilfully or intentionally directed against Gazan civilians by Israel – mainly because there is none. There is, on the other hand, considerable evidence that they were nothing of the sort, and that Israel took extensive steps to mitigate and minimize the effect on civilians of its anti-Hamas actions. Kahn sidesteps the fact that the reason civilians were in the crossfire was because Hamas – not Israel – put them there, embedding its fighters, its weaponry, and its command centers in the heart of the civilian population, both above and below ground. Hamas had ensured that Israel could not possibly attack it without incurring highly regrettable civilian casualties and deaths. But pursue, attack and punish the perpetrators of the horrific pogrom of October 7 it was the bounden duty of Israel to do in defence of its citizens.
Khan accuses Israel of starving Gaza’s civilians, of attacking those queuing for food and of obstructing delivery of humanitarian aid. He says Israel has imposed a total siege over Gaza that involved "completely closing the three border crossing points… for extended periods”. There has been no “total siege”. Since the beginning of the war, according to Israeli statistics, well over 18,000 trucks have crossed from Israel into Gaza carrying, inter alia, some 400,000 tons of food and over 23,000 tons of medical supplies.
In fact it is Hamas that has been obstructing the delivery of aid and stealing civilian supplies for its own use or selling them on the black market at inflated prices. According to an analyst at the Washington Institute, Hamas is estimated to have made some $500 million from this. When Israel has opened fire around the aid trucks, it has been against Hamas terrorists trying to steal their cargo.
Whether or not the new UK government pursues the legal argument initiated by its predecessor, the ICC judges will have to consider the validity of Khan’s case against Netanyahu and Gallant. It is only to be hoped that on this occasion non-politicised commonsense will prevail.
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