Prosecutors at war

Former DPP raises concerns about processes at the International Criminal Court

There were two unexpected developments at the weekend in the long-running attempt to have the Israeli prime minister and his defence minister arrested and brought before the International Criminal Court. They followed concerns raised last week by a former director of public prosecutions about actions taken by the court’s prosecutor, Karim Khan KC.

Iran

A report by the Guardian’s diplomatic editor said this:

Downing Street fears it is to be asked to support the issue of an international criminal court arrest warrant for the Israeli leader, Benjamin Netanyahu.

Such support would have to be given at a time when it has not proscribed Iran’s Islamic Revolutionary Guards Corps in the UK. There are concerns among some Foreign Office officials whether the position is politically sustainable.

No 10 is said to have been on alert for more than a week about an imminent statement from the ICC that its pre-trial chamber judges have accepted the request of the ICC prosecutor, Karim Khan, to issue arrest warrants for war crimes committed in Gaza.

I am sure that Patrick Wintour has accurately reported what he has been told. But his report is surprising for a number of reasons.

First, Wintour appears to be writing about political support for the proposed arrest warrants. But if the court is going to approve the prosecutor’s request then it will do so regardless of whether its decision has the UK government’s explicit support.

Secondly, the UK will be bound to enforce any warrants issued by the court if it is able to do so. Netanyahu and his defence minister Yoav Gallant know this and will simply avoid visiting the UK.

That, of course, will give the government less influence over events in the Middle East. But ministers knew that when they decided, shortly after the general election, that they would not go ahead with a submission that the previous government was planning to make. The Conservatives would have argued that the judges had no jurisdiction over Israeli nationals.

Thirdly, the government has known from the outset that Iran is behind the multi-front war against Israel launched almost a year ago by Iran’s proxies in the region. Why have its concerns come to the fore only now?

This is what Wintour has been told:

The concern in diplomatic circles is that the large anti-Iranian lobby inside parliament will complain that the UK is showing the wrong priorities if it backs seeking the arrest of the leader of a democratic state at a time when the Islamic Revolutionary Guards Corps (IRGC) remains unproscribed.

The UK has said it is reviewing the IRGC’s status in the UK in the context of a wider review of laws governing state-sponsored terrorism. The British domestic intelligence service MI5 has also said Iran’s backers have been responsible for as many as 15 attacks on British soil.

The Foreign Office has imposed heavy sanctions on IRGC members but opposed IRGC proscription partly because it fears Iran might then cut off diplomatic relations with the UK, leaving the UK without an ambassador in Tehran.

Israel

The second development is a statement from Israel’s Ministry of Foreign Affairs, issued last Friday. It said:

The State of Israel submitted today its official challenge to the ICC’s jurisdiction, as well as the legality of the prosecutor's requests for arrest warrants against Israel's prime minister and minister of defence.

Israel submitted two separate legal briefs. In one brief, Israel outlined the ICC's manifest lack of jurisdiction in the present case. And in another brief Israel detailed the ICC prosecutor’s wrongful breach of the court’s statute and the principle of complementarity, in failing to provide Israel with the opportunity to exercise its right to investigate by itself the claims raised by the prosecutor before proceeding.

As the foreign ministry says, “a variety of leading states (including ICC state parties), organisations, and legal experts from around the world share the positions presented by Israel in these matters”.

Its statement concludes:

No other democracy with an independent and respected legal system like that which exists in Israel has been treated in this prejudicial manner by the prosecutor.

Nevertheless, Israel remains steadfast in its commitment to the rule of law and justice, and will continue to protect its citizens against the ongoing attacks and atrocities by Hamas and other Iranian-backed terrorist proxies in the region.

This was unexpected for two reasons.

First, as Israel says, similar arguments have already been put to the court by a number of states and organisations. Indeed, the arguments over jurisdiction were first raised in June by the former UK government.

Secondly, the submissions were delivered nearly two months after a deadline set by the court. So the move may be seen as an attempt to delay an announcement until after Netanyahu’s planned address to the UN General Assembly at the end of this week.

Complementarity

The principle of complementarity was reaffirmed in a policy statement issued by the prosecutor in April. This says the ICC’s founding Rome statute “provides a clear framework for the court to cooperate with and provide assistance to a state conducting an investigation or trial in respect of conduct which constitutes a crime within the jurisdiction of the court or a serious crime under national law”. A footnote makes it clear that this applies both to states parties and to states that are not parties to the court’s statute, such as Israel.

Although its submissions to the court have not been published, Israel is likely to have argued that it either has — or will — examine the allegations that the prosecutor has made against its political leaders; and therefore that arrests warrants would be premature. That argument was endorsed by a former director of public prosecutions at a seminar last week organised by the think tank Policy Exchange. You can watch the entire event online.

L-R: Lord Macdonald of River Glaven KC, Todd Buchwald, Lord Burnett of Maldon, Dr Emanuela-Chiara Gillard, Professor Lord Verdirame KC

Lord Macdonald of River Glaven KC, whose contribution begins at 28:28, said he had no problem with the idea of an international criminal court to try the gravest international crimes. But the principle of complementarity had to be paramount — which meant “its jurisdiction should only be invoked where sovereign states are unwilling or unable to bring proceedings for such grave crimes in the face of credible evidence”.

Macdonald strongly deprecated various comments made by the Israeli prime minister. But it was not at all clear to the former prosecutor that Israel had demonstrated itself incapable of investigating Khan’s allegations against him.

He continued:

I have had dealings with Israeli public prosecutors and know them to be competent, professional independent and very tough...

In the past they have brought charges against senior government ministers who have been imprisoned as a result of those charges and they have the present prime minister under charges that threaten his political survival.

No greater tribute could be paid to the toughness and independence of Israeli prosecutors than that pro-Palestinian campaigners are seriously alleging that prime minister Netanyahu is continuing this war in order to protect himself from these very charges…

This behaviour on their part is more than can be said for the record of many other prosecutors in democratic countries.

Furthermore, the Israeli courts, and the Supreme Court in particular, are famously independent of the executive. And, as we have seen recently, that independence and its constitutional underpinnings have the most enormous public support in Israel.

So, for my part, I would be very far from concluding that the Israeli state is unwilling to investigate allegations such as these… still less incapable of doing so. I would say that Mr Khan’s action looks, at the very least, to be premature.

Khan worked for the Crown Prosecution Service in central London from 1992 to 1996, first as a crown prosecutor and then as a senior crown prosecutor. Macdonald ran the Crown Prosecution Service from 2003 to 2008. In his remarks at Policy Exchange, the former director expressed concerns at some of the processes followed by his fellow King’s Counsel, particularly in respect of an expert panel whose opinion Kahn had commissioned before deciding to seek arrest warrants.

The panel had been asked whether there were “reasonable grounds to conclude that the persons named in the warrants have committed crimes within the jurisdiction of the court”.

It was not unusual in serious cases for prosecutors to seek the opinion of a barrister in independent practice on whether the evidential test had been satisfied, Macdonald said. In his first year at the Crown Prosecution Service, he had sent a case to a new Queen’s Counsel called Keir Starmer. But prosecutors were never bound by the views of outside lawyers in any circumstances, he explained:

As it happens, I agreed with Keir’s view. But I could easily have disagreed with it; and, in that case, I would have followed my own judgement without difficulty and put his to one side…

But what was really going on in this case? And what was the real status of the expert panel? Can anyone doubt, in all the sensitive circumstances of this case, that Karim Khan was bound to accept its conclusions…

Imagine Karim Khan’s position if he hadn’t followed their conclusions. Imagine him trying to justify publicly that he had sent this work to such an eminent group but that, now he’d seen their opinion, he didn’t agree with it and he was going to reject it — particularly if it recommended charges against senior Israelis. There would have been absolute uproar.

So this means one of two things: either he was commissioning an expert panel to rubber-stamp his already concluded view — which can’t be the case, since the panel was independent and they would have refused to accept such an instruction. Or he was, in effect and in reality, handing over the power to make the decisive call to these outside experts, knowing that he would have no choice other than to accept their conclusion, whatever it might be…

And if that’s what he was doing, then I find the process objectionable because it is an abrogation of the role of the prosecutor, who is accountable to the international community for his decisions. The experts he commissioned, with very great respect to them, are in this context no different from private citizens accountable to nobody.

There is a further point. If Mr Khan was, in fact, granting the members of the expert panel the power to determine the course he would take in such a sensitive and politically significant case, the process of selecting the panel took on enormous significance.

It should have been as transparent as possible and absolutely directed towards independence both from his office — an important point — and obviously from the politics of the situation under consideration. Otherwise there was no point to it.

Macdonald stressed his respect for each member of the panel. They were all people of the highest integrity. But two of them were already serving as his special advisers.

Presumably, therefore, he was already well acquainted with their views and may have been able to predict with a degree of confidence what their conclusions might be. This is surprising to me.

And two panel members had previously expressed clear views in public about the situation in Gaza and the behaviour of the Israeli government there, in terms quite hostile to it. Again, this surprises me.

Following publication of their report, all the members of the panel signed an opinion piece in the Financial Times, strongly critical both of Hamas and the Israeli government and expressing the hope that further cases would be brought.

Again I express my enormous professional and personal respect and regard for these people. But I am a little surprised that they did that — and, in particular, before any application to the court has been made. All in all, this whole process seems to have been unsatisfactory.

There has been no word from the court’s pre-trial chamber on whether it will hold an oral hearing or when it will announce its decision.