ICC powers remain undecided
Court will consider other submissions on arrest warrants if UK remains silent
The UK government’s reported decision not to make submissions to the International Criminal Court on the legality of issuing arrest warrants against Israeli leaders is not expected to make any difference to the final outcome.
As I reported a month ago, judges at one of the court’s pre-trial chambers had allowed the UK two weeks to file short written observations on “whether the court can exercise jurisdiction over Israeli nationals in circumstances where Palestine cannot exercise criminal jurisdiction over Israeli nationals under the Oslo accords”.
The new government asked for more time and the deadline was extended until today. Reports say the UK will not be filing submissions.
In the meantime, a number of states and organisations have requested permission to file written arguments as “friends of the court”.
On Monday, the judges allowed a large number of them1 to do so. Each submission must be limited to 10 pages and lodged by 6 August.
The judges added that legal representatives of potential victims should not have applied to make representations as friends of the court. Instead, they should have used the special procedures for victims. Accordingly, the lawyers lodged a 10-page submission on Wednesday.
Once all submissions have been received, they must be sent to the prosecutor’s office for his observations.
The court will then have to consider the submissions and the prosecutor’s response. There will presumably need to be an oral hearing.
Given the imminent holiday period and the need to analyse an unprecedented number of submissions, it may be some months before the pre-trial chamber can decide whether or not to grant the prosecutor’s request for arrest warrants for Israel’s prime minister Benjamin Netanyahu and the country’s defence minister Yoav Gallant. Karim Khan KC accuses them of war crimes and crimes against humanity.
From the wording of the order issued by the pre-trial chamber in June, it appeared that the UK’s initial submission questioned the court’s jurisdiction to order the arrest of Israeli citizens. The former government was apparently arguing that as the Palestinian authorities have no jurisdiction over Israeli nationals under the Oslo accords they cannot transfer any jurisdiction to the International Criminal Court — a principle referred to by the court in an earlier ruling as nemo dat quod non habet.
The Oslo accords, signed in 1993 and 1995, were part of an intended peace process that led to the establishment of the Palestinian Authority. They allow for a measure of autonomy in security matters.
Israel has not signed the court’s founding statute but the prosecutor argues that he has jurisdiction over crimes committed by nationals of non-state parties in the territory of a party.
In 2021, a deeply divided pre-trial chamber concluded that the court’s jurisdiction extended to Gaza. However, as the UK pointed out last month, the ruling did not decide jurisdictional issues relating to the Oslo accords at that time. Two judges explained their unwillingness to address these issues in paragraphs 124-129 of the majority ruling.
The UK argued that the chamber had to make an initial decision on its jurisdiction to issue arrest warrants “of which the Oslo accords issue necessarily forms part”.
However, lawyers for the victims argue that the court’s jurisdiction does not rely on the delegation by states parties of their own criminal jurisdiction; international law does not allow a state to renounce the rights of protected persons and the Oslo accords cannot be interpreted as having such an effect; and that the the court’s Rome statute applies to states parties that do not have full or even any effective control over their territory.
Even if the UK will no longer be offering its legal expertise to the court, we can be confident that any points the government might have expressed will be fully argued — and challenged — by others.
Mr Eli M. Rosenbaum; Professor David Chilstein; Professor John Quigley; High Level Military Group; European Centre for Law & Justice; Professor Steven E. Zipperstein; Mr and Mrs Serge and Beate Klarsfeld; Professors Yuval Shany and Amichai Cohen; the State of Palestine; Professor William Schabas; the Jerusalem Center for Public Affairs and the Institute for NGO Research; the Kingdom of Norway; the Organisation of Islamic Cooperation; Hungary; Republic of Argentina; the Touro Institute on Human Rights and the Holocaust; Canadian Union of Jewish Students (CUJS) and the World Union of Jewish Students (WUJS); Arab Organisation for Human Rights UK (AOHR UK); Assistant Professor Halla Shoaibi and Professor Asem Khalil; Centre for Israel and Jewish Affairs; the Palestine Independent Commission for Human Rights (ICHR); Law for Palestine; Professor Sascha Dominik Dov Bachman, Dr Deborah Mayersen, Professor Gregory Rose and Dr Colin Rubenstein; US Senator Lindsey O. Graham; Lawyers for Palestinian Human Rights; Israel Bar Association; Czech Republic; International Centre of Justice for Palestinians and the Centre for Human Rights Law (SOAS University of London); Jerusalem Institute of Justice; Chile and Mexico; Centre for European Legal Studies on Macro-Crime (MACROCRIMES); Dr Robert Heinsch and Dr Giulia Pinzauti; The Hague Initiative for International Cooperation; ICJ Norway and Defend International Law; UN Special Rapporteurs and Working Groups; the United States of America; Professor Neve Gordon; Al-Quds Human Rights Clinic and Al-Quds University; the League of Arab States; L’association des Juristes pour le respect du droit international and la Fédération internationale pour les droits humains; University Network for Human Rights, the International Human Rights Clinic, Boston University School of Law, the International Human Rights Clinic, Cornell Law School and the Lowenstein Human Rights Project, Yale Law School; Professor Richard Falk and Professor Michael Lynk; Professor Adil Ahmad Haque; Open Society Justice Initiative, European Center for Constitutional and Human Rights, REDRESS Trust, Human Rights Watch and Amnesty International; Republic of Colombia; Hostages and Missing Families Forum and the Raoul Wallenberg Centre for Human Rights; Addameer Prisoner Support and Human Rights Association; International Association of Jewish Lawyers and Jurists; Kingdom of Spain; UK Lawyers for Israel, B’nai B’rith UK, the International Legal Forum, the Jerusalem Initiative and the Simon Wiesenthal Centre; International Commission of Jurists (ICJ); The Palestinian Association for Human Rights (Witness); Guernica 37 Chambers; the Federative Republic of Brazil; ALMA – Association for the Promotion of International Humanitarian Law; Ireland; Avocats pour la Justice au Proche-Orient (AJPO); Federal Republic of Germany; Dr Shahd Hammouri; Al-Haq Law in the Service of Mankind (Al-Haq), Al-Mezan Center for Human Rights (Al-Mezan) and the Palestinian Center for Human Rights (PCHR); République Démocratique du Congo; Arpit Batra; South Africa, Bangladesh, Bolivia, Comoros, and Djibouti.