In June, shortly after the chief prosecutor of the International Criminal Court (ICC) applied for arrest warrants against Israeli prime minister Binyamin Netanyahu and defence minister Yoav Gallant, the British government offered to “assist” the court. 

In a letter to the ICC, the Foreign Office explained that the purpose of Britain’s offer was to “ensure that arrest warrants are not issued without a solid jurisdictional basis”. It was a cheeky move, because Britain had no legal standing in the case and, anyway, ensuring that ICC warrants are properly issued is the ICC’s job, not Britain’s.

To put it bluntly, this was the start of an attempt at political meddling. The prosecutor wanted to charge Netanyahu and Gallant (plus three senior Hamas figures) with war crimes and crimes against humanity — and Britain’s Conservative government didn’t like it. Prime minister Rishi Sunak, in a break with the convention of not commenting about ongoing court cases, denounced the proposed warrants as “deeply unhelpful” and decried them as an attempt to create a moral equivalence between “democratic” Israel and “terrorist” Hamas.

Britain intended to challenge the warrants by submitting legal “observations” that would question the ICC’s jurisdiction over crimes committed by Israelis in the Palestinian territories, but in order to do so it first had to be accepted by the ICC as amicus curiae — a “friend of the court”.

In its letter, the Foreign Office highlighted Britain’s ICC-friendly credentials as a long-standing State Party of the court and stressed that “support for international criminal justice is a fundamental part of the UK’s foreign policy”. On this occasion, though, challenging the ICC’s jurisdiction looked more like support for war crimes than for criminal justice. 

Britain appears to have temporarily found itself at the forefront of efforts to shield Netanyahu and Gallant because although Israel and the US have made similar claims that the court lacks jurisdiction neither of them is a State Party to the ICC.

Towards the end of June the ICC agreed to let Britain submit “observations”, with a couple of provisos: the submission must be no more than 10 pages long and must be delivered within two weeks (a deadline that was later extended to July 26).

Withdrawing from the legal fray

However, the deadline came and went with no sign of the “observations”. In the meantime, Britain had held a general election. The Labour party swept to power and decided not to proceed with the submission.

Unlike Sunak, new prime minister Keir Starmer has refrained from commenting on the warrants — on the principle that it’s a matter for the court, not politicians. As a former practising barrister who also served five years as Director of Public Prosecutions, Starmer clearly sees judicial independence as important.

“The government feels very strongly about the rule of law internationally and domestically, and the separation of powers,” a Starmer spokesperson told the Guardian, adding that the court was already “well seized of the arguments”.

A deluge of other submissions

Despite Britain’s withdrawal from the legal fray, approval of its request to make a submission opened the door for dozens of additional requests. In giving Britain the go-ahead, the court indicated that it was also willing to consider submissions from others. This “must not be understood as an open call” for amicus curiae submissions, it said — but the opportunity proved too tempting for would-be “friends of the court” to resist.

Eventually the ICC agreed to consider more than 60 ten-page submissions from states, organisations and individuals. The deadline was last Tuesday and most of the submissions can now be viewed on the ICC’s website (see list).

'Misuse' of the system

Various law experts have since complained about this chain of events. “The procedure initiated by the United Kingdom constitutes a clear misuse of the provisions of the Rome Statute,” according to the Fédération Internationale pour les Droits Humains (FIDH) and the Association des Juristes pour le Respect du Droit International (JURDI). The Rome Statute is the treaty that established the ICC and, in a joint amicus submission, the two organisations note that while Article 19 allows the prosecutor, defendants and states with certain kinds of legal involvement to challenge the court’s jurisdiction Britain does not meet any of the criteria.

FIDH and JURDI go on to warn that this could set a precedent “encouraging any state, or even any organisation or person, to repeat such an approach in the future — a situation that would threaten the court’s ability to fulfil its function and impede the proper administration of justice”.

Sergey Vasiliev, Professor of International Law at the Open University in the Netherlands, questions whether Britain should have been granted amicus status. In a blog post for the European Journal of International Law he cites established jurisprudence which allows amicus observations “only on an exceptional basis, when it is of the view that such observations providing specific expertise are needed on particular topics”.

Vasiliev’s main objection is to the “backdoor” way the question of jurisdiction was raised. Although he doesn’t find Britain’s argument about jurisdiction compelling and describes it as a “red herring”, he suggests it could have been addressed more properly at a later stage in the process.

He also accuses the ICC of showing “excessive deference” to Britain and “setting a bad precedent that could come back to bite it in other situations.

Awaiting the prosecutor's response

The ICC now finds itself with some 600 pages of amicus submissions to scrutinise. Initially there was concern that this could seriously delay progress of the case but the pre-trial court seems determined not to let that happen. 

On Friday, in an apparent move to minimise delays, it instructed the prosecutor to provide a “consolidated response” to the submissions in no more than 53 pages by August 26. That shouldn’t be particularly difficult because the submissions — on both sides of the divide — are largely repetitive and probably won’t make much difference to the eventual outcome.

There’s no obvious reason why the court would need such a broad consultation process in order to reach a legally sound conclusion. The ICC has its own expertise, it’s already familiar with the arguments and its work would be disrupted if large-scale consultations of this kind became the norm.

However, in view of the political background, including reported attempts to intimidate court officials (here and here), allowing interested parties to have their say now could add legitimacy to the court’s final decision on the warrants. Even so, there’s a whiff of exceptionalism about the way the case is being conducted. Despite an abundance of evidence against Netanyahu and Gallant, the court has been more accommodating — and is treading more warily — than it would in most other situations.

The question of jurisdiction

The purpose of the ICC is to complement national legal systems by taking up cases where national authorities are unable or unwilling to prosecute. This is known as the “complementarity” principle.

When a country accedes to the Rome Statute (as Palestine did in 2015) it accepts the ICC’s jurisdiction over crimes “of concern to the international community as a whole” committed on its territory: genocide, crimes against humanity, war crimes and the crime of aggression. This applies regardless of the nationality of the suspects, so on a plain reading of the statute Israelis can be prosecuted for crimes of that kind committed in the West Bank, Gaza and East Jerusalem.

The specific question regarding Palestine is whether the Rome Statute (an international treaty) can be overridden by the Oslo Accords, a pair of interim agreements between Israel and the PLO signed in 1993 and 1995 in which Israel, as the occupying power, transferred some responsibilities to the Palestinian Authority pending a final settlement.

In a submission to the ICC, the United Sates invokes the legal maxim “nemo dat quod non habet” — that you can’t give away something that you don’t already have. It says:

“The Palestinian Authority (PA) could not delegate to the Court criminal jurisdiction over Israeli nationals that the PA never had. The Palestinians have only ever exercised those powers transferred to the institutions of the PA by agreement with Israel, which at the time of the Accords had been continuously administering the territory since 1967. Jurisdiction with respect to Israeli nationals for alleged criminal acts has never been obtained by any Palestinian governance authority.”

Britain’s Foreign Office letter makes a similar point, saying the question is “whether Palestine could delegate criminal jurisdiction over Israeli nationals to the court, in circumstances where the Oslo Accords themselves make it clear that Palestine itself does not have criminal jurisdiction over Israeli nationals”.

One issue here concerns the word “delegate”, which doesn’t appear anywhere in the Rome Statute. Countries joining the treaty are merely required to “accept” the ICC’s jurisdiction in the type of crimes the statute refers to. In other words, they are not giving anything away but agreeing to let the ICC get on with its business.

Among other countries making amicus submissions, the Czech Republic says Palestine’s ability to “delegate” to the ICC is “severely limited” by the Oslo Accords and the court should take that into consideration. Hungary also questions the court’s jurisdiction but overall there’s little support for the American position. Bangladesh, Bolivia, Brazil, Chile, Colombia, Comoros, Djibouti, Ireland, Mexico, Palestine, South Africa and Spain all say the Oslo Accords are no bar to issuing the warrants.

Germany’s submission is interesting because it hints at a fall-back plan to kick the case into the long grass if the Oslo Accords ploy fails. The complementarity principle, Germany points out, makes the ICC a “court of last resort” — so why not give Israel a chance to prosecute Netanyahu and Gallant itself?

One answer to that can be found in the submission from Neve Gordon, an Israeli who is Professor of International Law and Human Rights at Queen Mary University of London:

“A whole archive of empirical evidence gathered by United Nations agencies and human rights organisations reveals that for over five decades Israel has failed to render accountable actors who carry out egregious violations, including alleged war crimes and crimes against humanity, against Palestinians … A staggering 98% of complaints regarding soldiers’ offences against Palestinians have concluded without any indictment.”

Moreover, since the Oslo Accords were signed, Gordon says, “not a single high-ranking Israeli officer or politician with executive powers has ever been indicted and imprisoned for carrying out war crimes and crimes against humanity against Palestinians, even as UN agencies and the most prominent human rights organisations have continuously documented such crimes.”

UPDATE: The prosecutor provided his “consolidated response” to the submissions on August 23.