UK challenges ICC powers
Foreign Office submissions may delay arrest warrants for Israeli leaders
Judges at the International Criminal Court have allowed the United Kingdom 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”.1
The observations will be considered by members of a pre-trial chamber who have been asked by the court’s prosecutor Karim Khan KC to issue arrest warrants for Israel’s prime minister Benjamin Netanyahu and the country’s defence minister Yoav Gallant. Khan accuses them of war crimes and crimes against humanity.
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.
The UK’s application to make observations as a “friend of the court” was filed on 10 June and marked “secret” by the court’s registry.
It seems from the wording of the order issued by three judges yesterday that the UK is questioning the court’s jurisdiction to order the arrest of Israeli citizens. The Foreign Office appears to be 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.
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.
His decision that the International Criminal Court “has jurisdiction over Israeli, Palestinian or other nationals who committed crimes in Gaza or the West Bank” was supported by a panel of international legal experts, including several from the UK.
In 2021, a deeply divided pre-trial chamber concluded that the court’s jurisdiction extended to Gaza. However, says the UK, 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 argues that the chamber must now make an initial decision on jurisdiction to issue arrest warrants “of which the Oslo accords issue necessarily forms part”.
Other states will also be allowed to submit observations by 12 July. Khan is then expected to respond. The court did not disclose any further time limits it may have set on the prosecutor’s reply.
It will take time for the court to reach a decision on the issues raised by the UK. At the very least, the government’s intervention is seen as delaying the court’s decision on whether to issue warrants against members of the Israeli government.
The intervention appears to have no bearing on the prosecutor’s request for the arrest of three Hamas leaders — Yahya Sinwar, Mohammed Deif and Ismail Haniyeh. While bringing them to justice may be challenging, there seems little doubt that the court has jurisdiction to try them.
Applications for arrest warrants are often dealt with in private to avoid alerting suspects. In its request this month, the UK argued that there was no need for its application to be treated as secret or confidential — presumably because Khan had announced in public that he was seeking arrest warrants. The court agreed that the UK’s observations could be published.
Its ruling, which was first reported by the Reuters correspondent in The Hague Stephanie van den Berg, does not appear to have been expected in Israel. Netanyahu reportedly thought that arrest warrants would be issued within the next four weeks.
On 4 July the court extended the deadline to 26 July. The UK had argued that this would not cause any delay, given the time needed to consider any other requests to make observations.