“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.
The PTC in 2021 was well-aware of the Oslo issue (as part of the proceedings, I was a co-author on an amicus filing with the Court highlighting these problems, and several other briefs did the same), but rather than doing the right thing and dismissing the prosecutor’s request at the time to open an investigation, it chose to kick the can down the road, foisting the legal question onto the chamber that in the future would be faced with confirming potential arrest warrants.
It is unknown if Prosecutor Karim Khan revisited the jurisdictional issues in his application for the warrants against Netanyahu and Gallant because these filings are secret. However, it is known that the “Expert Panel” he convened to back up his maneuvers simply glossed over the very real jurisdictional issues.
Enter the UK’s 10th of June request. Rather than allow the PTC to steamroll over these fundamental questions, the UK reminded the chamber of its obligation to carefully consider these issues, and in particular to focus on those “relating to the Oslo Accords.” On the 27th of June, the PTC issued an order that it indeed will now engage in proceedings on jurisdiction.
It is also interesting to note that the Registry of the Court wanted the UK to keep these proceedings secret. The rationale for doing so is not known, but it raises the question as to what other critical developments at the Court are hidden from public scrutiny. Thankfully, in this case, we know about them because the UK demanded that its filing be made public and the PTC agreed that these matters should not be shielded by a veil of secrecy.
These events are reflective more broadly of selective factual and legal narratives, procedural shortcuts, and insufficient due process standards that routinely dominate in international fora when it comes to the Palestinian-Israeli conflict. These issues are often a result of extensive campaigning by UN bodies and anti-Israel NGOs. These activities include the production of copious numbers of reports and lobbying of officials to shape international policies and decisions. These efforts are also aimed at monopolizing the information space to censor unfavored narratives and to block pluralistic discussion.
The importance of the Oslo Accords and its relation to ICC jurisdiction is one such example. The plain reading of the Accords bars the Court from acting against Israelis. For this reason, the role of the Oslo Accords in the governance of the territory beyond the 1949 armistice lines is routinely ignored, deliberately omitted, or falsely maligned as being irrelevant by anti-Israel activists.
The same dynamic of pretending the Oslo Accords do not exist is also pervasive by those who levy the “apartheid” libel or make spurious claims regarding water, health care, and infrastructure in the West Bank and Gaza. Actions to denigrate the clear provisions of the Accords, as has occurred at the ICC, also serve to incentivize the Palestinians to continue their zero-sum stance towards the conflict—prioritizing terrorism and lawfare, rather than engage in a process of negotiation and compromise with Israel.
While the outcome of the PTC deliberations is uncertain, the chamber has allowed other interested parties to now provide submissions on these fundamental jurisdictional issues. It is hoped that other countries and those involved in the Oslo negotiations will take part and support the UK’s effort. Not only is the integrity of the ICC and other international judicial mechanisms at stake, but also the chance to prevent the further emboldening of radicalized actors seeking to perpetuate and expand the conflict.
This is why the new UK Government should follow the work of its predecessor and continue their crucial role of holding the ICC accountable.
