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The UK government’s intervention at the International Criminal Court is expected to delay a decision on whether an arrest warrant can be issued against Israeli Prime Minister Benjamin Netanyahu for alleged war crimes in Gaza.
ICC judges decided on Thursday that they will allow the UK to present legal arguments in the case while they consider whether to approve requests made by the Prosecutor General of the ICC for warrants against Netanyahu and his Defense Minister Yoav Galant.
According to court documents, after the prosecutor made the requests, the UK argued that the judges hearing the case should consider “unsettled” questions about the ICC’s jurisdiction over Israeli citizens before deciding whether to issue the warrants.
The decision to allow the UK to present arguments in the case raised concerns among some international law experts that Britain’s intervention was politically motivated and an attempt to reopen legal issues that many say had previously been settled.
In February 2021, a panel of ICC judges issued a decision confirming that the ICC has jurisdiction in the occupied Palestinian territories. The solution cleared the way for the former chief prosecutor of the ICC to launch a criminal investigation into alleged atrocities in Gaza, the West Bank and East Jerusalem.
However, the UK government last month told the pre-trial chamber of the ICC that the 2021 judgment “does not determine” jurisdictional issues related to the Oslo Accords, the interim peace accords signed between the Palestine Liberation Organization and Israel in the 90s.
UK government lawyers have argued that judges must “make an initial determination” whether the ICC can exercise jurisdiction over Israeli nationals “in circumstances where Palestine cannot exercise criminal jurisdiction over Israeli nationals under the Oslo Accords”.
The arguments put forward by the UK echo claims made by current and former senior Israeli officials interviewed by the Guardian in recent months. A senior Israeli official insisted that “jurisdictional issues are not resolved” because Palestine “does not have the authority to delegate [jurisdiction] to the court”.
Experts said the decision to allow the UK to intervene in the matter could delay the arrest warrant case, although a former ICC official familiar with the case from 2021 said jurisdictional issues have been decided and, if challenged, will be “dead on arrival”.
According to Mark Kersten, an expert on the International Criminal Court and professor of criminal justice at the University of the Fraser Valley in Canada, “it would be incredible” if the judges ruled that Palestine, a member state of the International Criminal Court, “cannot ask the court to look into the atrocities committed on its territories due to the stalling Oslo peace process’.
Dania Chaikel, the International Federation of Human Rights’ representative at the ICC, said the UK’s attempt to challenge the ICC’s jurisdiction using the Oslo accords was “deeply disturbing and unfair”.
She said the UK appeared to be “prioritizing diplomatic relations over responsibility for international crimes” and that its attempt to challenge the jurisdiction of the ICC also failed “to deal with Israel’s non-compliance with the Oslo Accords, particularly on enlargement of the West Bank settlements’.
In response to the decision, Clive Baldwin, senior legal adviser at Human Rights Watch, said: “The UK must not lead the charge of double standards in victims’ access to justice. The next government will have to decide immediately whether it supports the ICC’s essential role in ensuring accountability and protecting the rule of law for all.”
The UK Foreign Office has been approached for comment
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