Britain challenges ICC’s jurisdiction over Israel, delaying arrest warrant decision
UK files amicus brief contesting the ICC’s 2021 decision asserting jurisdiction over Israeli actions in Palestinian territories; potential moves against Netanyahu, Gallant delayed
The International Court of Justice has allowed the United Kingdom to file an amicus brief challenging the court’s jurisdiction over Israeli nationals in the investigation by The Hague tribunal into alleged Israeli war crimes and crimes against humanity.
The court’s Pre Trial Chamber I decided on Thursday to give the UK until July 12 to submit its brief, meaning that the decision-making process on whether or not to issue arrest warrants against Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant will be suspended until a decision can be made on the UK’s challenge.
According to court documents published on Thursday, the UK made its request on June 10, where it cited a decision by the same chamber from 2021 when it ruled that, despite the State of Palestine not being a sovereign state the ICC did have jurisdiction over any alleged violations of the Rome Statute, the ICC’s foundational charter, in the West Bank, East Jerusalem, and Gaza.
The UK’s brief noted that the court at the time ruled that it would need to make a final decision on Israel’s claim that the Palestinian Authority’s request to join the ICC violates the Oslo Accords if and when an ICC prosecutor requests arrest warrants against Israeli nationals.
The UK’s argument is that the Palestinian authorities cannot have jurisdiction over Israeli nationals under the terms of the Oslo Accords, and so it cannot transfer that jurisdiction over to the ICC to prosecute Israelis.
“The United Kingdom submits that the Chamber, pursuant to Article 19(1) of the Rome Statute, ‘is required to make an initial determination of jurisdiction in resolving the application for arrest warrants’ of which ‘[t]he Oslo Accords issue necessarily forms part,’” the court noted.
The court said that other member states of the ICC could file similar briefs if they so wished by the July 12 deadline.
Dr. Tal Mimran, a lecturer in law and technology at the Hebrew University of Jerusalem and a program director at the Tachlith Institute, said he did not expect the decision to delay the ICC’s decision-making process on the arrest warrants for Netanyahu and Gallant for very long.
Anne Herzberg, a legal adviser to NGO Monitor, said however that the move was however significant since it would force the Pre Trial Chamber to deal with the issue.
She also noted that the ICC had sought to keep the filing secret but that it acceded to the UK’s request to make the amicus brief public.
Herzberg said that in February 2021, the Pre Trial Chamber had allowed the Prosecutor to move forward with an investigation of Israel but that it had “ignored that the Oslo Accords fully barred the Palestinians from delegating criminal jurisdiction over Israelis to the ICC.”
Continued Herzberg “The UK filing, which the ICC tried to keep secret, forces the Pre Trial Chamber to address this issue, which if the Court actually applies the law, will require the rejection of the Prosecutor’s request for warrants against Netanyahu and Gallant.”
She said she hoped that now the hearing is public, “additional countries of conscience will step in and demand the Court end the Prosecutor’s egregious jurisdictional overreach.”
ICC Chief Prosecutor Karim Khan announced in May that he was seeking arrest warrants for Netanyahu and Gallant due to suspected crimes of “causing extermination, causing starvation as a method of war including the denial of humanitarian relief supplies, deliberately targeting civilians in conflict.”
The decision was fiercely criticized by Israel, the US and others, arguing among other claims that Israel’s independent judiciary and legal system was capable of investigating any criminal wrongdoing during the ongoing Gaza war, and that the prosecutor had not allowed enough time to Israel to exercise that power.
Critics also argued that Khan had not engaged with Israel to understand what steps it might have taken or was currently carrying out to investigate any possible criminal actions during the war, unlike his attitude in other investigations such as against Caracas where he has engaged with the dictatorial regime of Nicolas Maduro.
