ICC awaits deluge of legal opinions on arrest warrants for Netanyahu and Gallant
Today is the last day for submitting legal “observations” to the International Criminal Court (ICC) on the validity of warrants for the arrest of Israeli prime minister Binyamin Netanyahu and defence minister Yoav Gallant.
The ICC’s chief prosecutor applied for the warrants in May, accusing Netanyahu and Gallant, along with three Hamas officials, of war crimes and crimes against humanity.
Since then, the court has agreed to consider 60 submissions from states, organisations and individuals (see list). Their arguments will be reviewed in pre-trial hearings before the court decides whether to grant the warrants or reject them.
British meddling
This deluge of opinions for and against the warrants wasn’t really meant to happen and has come about in the wake of meddling by Britain.
Israel and the US denounced the ICC prosecutor’s decision when it was announced in May. In Britain, prime minister Rishi Sunak described it as “deeply unhelpful” and suggested it was attempting to create a moral equivalence between “democratic” Israel and “terrorist” Hamas.
Shortly afterwards the Conservative government began preparing to mount a legal challenge and in June the Foreign Office wrote to the ICC seeking permission to “assist” the court regarding the warrants for Netanyahu and Gallant. Britain’s stated purpose was to “ensure that arrest warrants are not issued without a solid jurisdictional basis” (which is officially the ICC’s task rather than Britain’s).
The Foreign Office justified its request on the grounds that Britain is a long-standing State Party of the court and “support for international criminal justice is a fundamental part of the UK’s foreign policy”. Regardless of that, though, questioning the prosecutor’s decision looked more like support for Messrs Netanyahu and Gallant than for criminal justice. (It’s worth noting in this context that neither the US nor Israel is a ICC State Party, which probably explains why Britain found itself doing the heavy lifting for Israel on this occasion.)
Towards the end of June the ICC agreed to allow Britain’s “observations”, with a couple of provisos: the submission must be no more than 10 pages long and must be delivered within two weeks (though the deadline was later extended to July 26).
Meanwhile, Britain had a general election. Labour came to power and decided not to proceed with the submission.
Unlike Sunak, prime minister Keir Starmer has refrained from commenting on the warrants — on the grounds that it’s a matter for the court, not politicians. As a former practising barrister who also served five years as Director of Public Prosecutions, Starmer clearly sees judicial independence as an important principle.
“The government feels very strongly about the rule of law internationally and domestically, and the separation of powers,” Starmer’s deputy official spokesperson told the Guardian, adding that the court was already “well seized of the arguments”.
Despite Britain’s withdrawal from the legal fray, approval of its request to make a submission opened the door for dozens of additional requests. In giving Britain the go-ahead, the court indicated that it was also willing to consider submissions from others. This “must not be understood as an open call” for amicus curiae submissions, it said — but the opportunity proved too tempting for would-be “friends of the court” to resist.
Lawyers for Israel
Among the non-government organisations opposing the warrants is UK Lawyers for Israel (UKLFI), whose other activities were explored in a series of articles last week. UKLFI is making a submission jointly with the International Legal Forum, B’nai B’rith UK, the Simon Wiesenthal Centre and the Jerusalem Initiative.
According to a post on UKLFI’s website, the submission will include two key arguments that Britain had been expected to make before the change of government:
“That under the Oslo Accords, ‘Palestine’ does not have criminal jurisdiction over Israeli citizens that can be delegated to the ICC.”
“That the prosecutor failed to properly take into account one of the most foundational principles upon which the court is governed, that of complementarity, given that Israel has a widely respected, independent and robust national legal system.”
Either of these arguments, if accepted by the ICC, would lead to the warrants against Netanyahu and Gallant being dropped (while those against the Hamas officials would apparently survive).
UKLFI is also complaining about the ICC’s insistence that all submissions must be no more than 10 pages long. In a comment on the website the organsation’s chief executive, Jonathan Turner, describes it as “a highly unsatisfactory restriction” and says:
“It will seriously curtail our attempt to ensure that the court does not act on the basis of false information. It is a matter of great concern, liable to produce grave injustice, if the court is not willing to examine the detailed evidence we present demonstrating the wholesale inaccuracy of the prosecutor’s allegations against Israel.”
UKLFI is well connected in Britain’s legal establishment. Nine of its 10 patrons are King’s Counsel and six of them are members of the House of Lords. Twice in the last year its staff have given testimony to parliament on legal matters relating to Israel. Among other things, UKLFI claims Israel’s occupation of the West Bank is lawful and Israeli settlements there are legitimate. There are also “good arguments”, it says, that Palestinian East Jerusalem is sovereign Israeli territory.
The most interesting of UKLFI’s partners in the ICC submission is the International Legal Forum (ILF), self-described as “an independent, Israel-based NGO and pro-active global network of over 4,000 lawyers and activists in 40 countries”. It has previously received financial support from the Israeli government to combat BDS (Boycott, Divestment and Sanctions) activity internationally.
Quoted on UKLFI’s website, Arsen Ostrovsky, ILF’s chief executive, describes the warrants against Netanyahu and Gallant as “an egregious and unprecedented violation of every norm of international law”. He continues:
“It not only entirely lacks substance, but also underscores the court’s blatant lack of jurisdiction in the first instance to pursue the Israeli leaders, who have already gone to unprecedented levels to abide by international law in response to the terrorist group Hamas, who committed the massacre of October 7 and continues to hold 120 hostages captive in Gaza.
“Furthermore, the Prosecutor’s attempt to draw moral equivalence between terrorist leader who committed the largest massacre of Jews since the Holocaust and leaders of the democratic State of Israel, was utterly obscene, unconscionable and cannot be permitted to stand.”
List of states, organisations and individuals permitted to make submissions to the ICC:
1. Addameer Prisoner Support and Human Rights Association
2. 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)
3. Al-Quds Human Rights Clinic and Al-Quds University
4. ALMA — Association for the Promotion of International Humanitarian Law
5. Arab Organisation for Human Rights UK (AOHR UK); Assistant Professor Halla Shoaibi and Professor Asem Khalil
6. Association des Juristes pour le Respect du Droit International and Fédération Internationale pour les Droits Humains
7. Avocats pour la Justice au Proche-Orient (AJPO)
8. Canadian Union of Jewish Students (CUJS) and the World Union of Jewish Students (WUJS)
9. Centre for European Legal Studies on Macro-Crime (MACROCRIMES)
10. Centre for Israel and Jewish Affairs
11. Chile and Mexico
12. Czech Republic
13. Dr Robert Heinsch and Dr Giulia Pinzauti; The Hague Initiative for International Cooperation
14. Dr Shahd Hammouri
15. European Centre for Law & Justice
16. Federal Republic of Germany
17. Federative Republic of Brazil
18. Guernica 37 Chambers
19. High Level Military Group
20. Hostages and Missing Families Forum and the Raoul Wallenberg Centre for Human Rights
21. Hungary
22. ICJ Norway and Defend International Law
23. International Association of Jewish Lawyers and Jurists
24. International Centre of Justice for Palestinians and the Centre for Human Rights Law (SOAS University of London)
25. International Commission of Jurists (ICJ)
26. Ireland
27. Israel Bar Association
28. Jerusalem Center for Public Affairs and the Institute for NGO Research
29. Jerusalem Institute of Justice
30. Kingdom of Norway
31. Kingdom of Spain
32. Law for Palestine
33. Lawyers for Palestinian Human Rights
34. League of Arab States
35. Mr and Mrs Serge and Beate Klarsfeld
36. Mr Eli M. Rosenbaum
37. Open Society Justice Initiative, European Center for Constitutional and Human Rights, REDRESS Trust, Human Rights Watch and Amnesty International
38. Organisation of Islamic Cooperation
39. Palestine Independent Commission for Human Rights (ICHR)
40. Professor David Chilstein
41. Professor John Quigley
42. Professor Neve Gordon
43. Professor Richard Falk and Professor Michael Lynk
44. Professor Adil Ahmad Haque
45. Professor Sascha Dominik Dov Bachman, Dr Deborah Mayersen, Professor Gregory Rose and Dr Colin Rubenstein
46. Professor Steven E. Zipperstein
47. Professor William Schabas
48. Professors Yuval Shany and Amichai Cohen
49. Republic of Argentina
50. Republic of Colombia
51. République Démocratique du Congo; Arpit Batra
52. South Africa, Bangladesh, Bolivia, Comoros, and Djibouti.
53. State of Palestine
54. The Palestinian Association for Human Rights (Witness)
55. Touro Institute on Human Rights and the Holocaust
56. UK Lawyers for Israel, B’nai B’rith UK, the International Legal Forum, the Jerusalem Initiative and the Simon Wiesenthal Centre
57. UN Special Rapporteurs and Working Groups
58. United States of America
59. University Network for Human Rights, International Human Rights Clinic, Boston University School of Law, International Human Rights Clinic, Cornell Law School and the Lowenstein Human Rights Project, Yale Law School
60. US Senator Lindsey O. Graham
Source: https://www.icc-cpi.int/sites/default/files/CourtRecords/0902ebd1809006d1.pdf
Originally published at https://al-bab.com.
