US and UK oppose International Criminal Court arrest warrants for Netanyahu and Gallant via BICom

What’s happened: The prosecutor of the International Criminal Court (ICC) yesterday applied for an arrest warrant for Prime Minister Netanyahu and Defense Minister Gallant relating to alleged crimes committed in the prosecution of Israel’s war in Gaza.

• Karim Khan, the British prosecutor, accused the two Israelis of “causing extermination, causing starvation as a method of war including the denial of humanitarian relief supplies, [and] deliberately targeting civilians in conflict.”
• “We submit that the crimes against humanity charged were committed as part of a widespread and systematic attack against the Palestinian civilian population pursuant to State policy. These crimes, in our assessment, continue to this day.”
• Khan also issued warrants for Hamas’s two most senior Gazan leaders, Yahya Sinwar and Mohammed Deif, and its foreign leader Ismail Haniyeh. The three are sought for overseeing extermination, murder, hostage-taking, rape, and sexual assault.
• “We submit that the crimes against humanity charged were part of a widespread and systematic attack against the civilian population of Israel by Hamas and other armed groups pursuant to organisational policies,” Khan said.
• Reaction from across the Israeli political spectrum was near-uniformly angry and incredulous.
• Netanyahu said: “The absurd and mendacious order by the prosecutor in The Hague isn’t directed only against the Israeli prime minister and the defence minister. It is directed against the State of Israel in its entirety... With what insolence do you dare to compare Hamas’s monsters with the soldiers of the IDF, the most moral army in the world?”
• War Cabinet Minister Gantz called Khan’s request “a crime of historic proportions.” “The State of Israel,” he said, “is waging one of the just wars fought in modern history following a reprehensible massacre perpetrated by terrorist Hamas on the 7th of October.”
• “While Israel fights with one of the strictest moral codes in history, while complying with international law and boasting a robust independent judiciary, drawing parallels between the leaders of a democratic country determined to defend itself from despicable terror to leaders of a bloodthirsty terror organisation is a deep distortion of justice and blatant moral bankruptcy.”
• Opposition Leader Lapid also condemned the decision, saying “it is not possible to issue arrest warrants against Netanyahu, Sinwar and Deif. There is no such comparison, we cannot accept it and it is unforgivable,” he said, before calling the decision “a terrible political failure.”
• President Herzog said, "the announcement of the prosecutor at the ICC is beyond outrageous, and shows the extent to which the international judicial system is in danger of collapsing.”
• “Taken in bad faith, this one-sided move represents a unilateral political step that emboldens terrorists around the world, and violates all the basic rules of the court according to the principle of complementarity and other legal norms.”
• President Biden also responded angrily. “The ICC prosecutor’s application for arrest warrants against Israeli leaders is outrageous,” he said. “And let me be clear: whatever this prosecutor might imply, there is no equivalence—none—between Israel and Hamas. We will always stand with Israel against threats to its security.”
• Secretary of State Blinken, similarly, said “we reject the prosecutor’s equivalence of Israel with Hamas. It is shameful. Hamas is a brutal terrorist organisation that carried out the worst massacre of Jews since the Holocaust and is still holding dozens of innocent people hostage, including Americans.”
• Blinken added there were “deeply troubling process questions” surrounding the announcement. “Despite not being a member of the court, Israel was prepared to cooperate with the prosecutor. In fact, the prosecutor himself was scheduled to visit Israel as early as next week to discuss the investigation and hear from the Israeli government. The prosecutor’s staff was supposed to land in Israel today to coordinate the visit."
• “Israel was informed that they did not board their flight around the same time that the prosecutor went on cable television to announce the charges. These and other circumstances call into question the legitimacy and credibility of this investigation.”
• Prime Minister Sunak’s office criticised the deicsion, while the Foreign, Commonwealth and Development Office also hit out at the warrants, saying “we don't believe that seeking warrants will help get hostages out, get aid in, or deliver a sustainable ceasefire. This remains the UK’s priority… As we have said from the outset, we do not think the ICC has jurisdiction in this case."
• Deputy foreign minister Andrew Mitchell told Parliament that “the fact that the prosecutor has applied for arrest warrants to be issued does not directly impact, for example, on UK licensing decisions, but we will continue to monitor developments.”
• The German and Czech governments also spoke out against the warrant requests.

Context: Israeli officials have never before been issued with warrants from the ICC. Similarly, experts noted that this was the first time in its 21 years that the Court has sought to indict “Western” leaders.

• Israel is not among the 124 state signatories to the Rome Statute, which outlines the ICC’s jurisdiction, and therefore its writ and jurisdiction do not run to Israel itself.
• Nor can Netanyahu or Gallant face arrest when travelling in other countries not subject to the writ of the ICC, such as the US. Many of Israel’s European allies, however, including the UK, are subject to the court’s authority, meaning that they could face arrest if travelling there.
• The UK has joined the US in rejecting the jurisdiction of the court to consider Israeli conduct in the war due to its not being a member.
• In his remarks, Blinken also argued that the move was premature, with the court supposed to intervene only when domestic courts have failed to do so. “The ICC was established by its state parties as a court of limited jurisdiction,” he said. “Those limits are rooted in principles of complementarity, which do not appear to have been applied here amid the prosecutor’s rush to seek these arrest warrants rather than allowing the Israeli legal system a full and timely opportunity to proceed.”
• “In other situations, the prosecutor deferred to national investigations and worked with states to allow them time to investigate. The prosecutor did not afford the same opportunity to Israel, which has ongoing investigations into allegations against its personnel.”
• One of the arguments made against last year’s government programme of judicial reform was that the strength of the Israeli system’s independence represented an important bulwark against the intervention of international courts.
• From Khan’s remarks when announcing the warrant applications, it seems that the alleged denial or hampering of humanitarian aid to Gaza would form a cornerstone of any case. He called on Israel to “immediately allow access to humanitarian aid in Gaza at scale.”
• Israel has long denied that it is a blockage to sufficient aid reaching Gaza, and that Hamas looting and international failure are the true cause of privation.
• Prior to his appointment as ICC prosecutor, Khan served as a defence attorney, representing clients including Liberian dictator Charles Taylor and the son of Libyan dictator Muammar Gaddafi.
• Khan reportedly relied here upon expert advice from a panel of international legal experts, including American-Israeli scholar Theodor Meron, a Holocaust survivor who once served as legal counsel to Israel’s Foreign Ministry and as Israeli ambassador to Canada. The panel is said to have agreed with Khan’s view unanimously.
• Prior to October 7^th and the launching of Israel’s response in Gaza, the ICC was already investigating the conduct of both sides in 2014’s Israel-Hamas war (Operation Protective Edge).

Looking ahead: Khan’s warrants will now be considered by a three-judge ICC panel in ICC Pre-Trial Chamber I: Presiding Judge Iulia Motoc (Romania); Reine Alapini-Gansou (Benin) and Socorro Flores Liera (Mexico).

• It is rare for this pre-trial process to reverse the recommendation of the prosecutor. In only two of the 31 cases currently before the court has it failed to confirm warrants.
• In response to the announcement, the senior leadership of the National Security Council, the Justice Ministry, the chief military prosecutor and the Foreign Ministry all began deliberations on its impact and how to respond. Israeli officials will now decide whether or not to cooperate with the process.

via BICom