The New UK Government Should Continue Holding the ICC Accountable

Jul 10, 2024 by

By Anne Herzberg, European Conservative.

“You have given us a clear mandate, and we will use it to deliver change.” These words were spoken by the new UK Prime Minister Keir Starmer just hours after leading Labour to a historic landslide election victory at the end of last week.

While ‘change’ is the mantra of the new government, there are many policies especially in the area of foreign policy, where change will be detrimental.

One of the new Foreign Secretary David Lammy’s immediate tests of change will be a request his predecessors set in motion just a few weeks ago—seeking to hold the International Criminal Court (ICC) accountable in the pending arrest warrant requests relating to Israeli officials.

Just when it looked like the ICC would perfunctorily confirm such arrest warrants against Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant, the UK threw a much required spanner in the works. On the 10th of June, the British government filed a request with the Pre-Trial Chamber (PTC) calling on the Court to carry out a required re-assessment of whether the ICC actually has jurisdiction over Israelis.

In 2021, the PTC controversially issued a decision accepting jurisdiction and authorizing the Prosecutor to open an investigation in the “Situation in Palestine.” Yet, the PTC caveated that its finding of jurisdiction in the case only applied to the prosecutor’s investigatory phase. Should cases proceed to applications for arrest warrants, the question of jurisdiction would have to be revisited.

The issue of jurisdiction is central to the ability of the ICC Prosecutor to proceed against Israelis. Israel is not a member of the Court and the Palestinian Authority is not a state, meaning it cannot join the ICC, the egregious fudging in 2021 by the PTC of this critical requirement notwithstanding. Consequently, if one were following the clear and actual rules of the Rome Statute, the Court’s governing document, there is no jurisdiction over Netanyahu or Gallant.

Another central issue barring ICC jurisdiction is the Oslo Accords. These agreements, mutually negotiated by Israel and the PLO between 1993-1995, and witnessed by the international community, created the Palestinian Authority and specify the governance of the West Bank and Gaza. The Accords also crucially mandated that the PA has no criminal jurisdiction over Israelis, nor can it delegate such power to other bodies. In other words, even if the ICC bent the rules to allow the PA to join the ICC, the Court would still not have the authority to prosecute Israelis.

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