Has the U.K. changed its stance on ICC arrest warrants? | Explained

Britain shifts policy on ICC arrest warrants for Israeli leaders, potentially leading to Netanyahu's indictment and international repercussions

The story so far: On July 26, Britain abandoned its intent to challenge the prosecutor’s application for arrest warrants before the International Criminal Court (ICC) against Israel’s Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant. The latest move signals a second policy shift by the Labour government, from the previous Conservative government, after it restored funding for the UNRWA, the UN agency for Palestinian refugees.

The chief prosecutor of the Hague Court, Karim Khan, on May 20, applied to the pre-trial chamber to serve arrest warrants against Hamas leaders Ismail Haniyeh and Mohammed Deif (since killed) and Yahya Sinwar, as well as Mr. Netanyahu and Mr. Gallant. The move was consequent to the brutal fallout from Hamas’s Operation al-Aqsa flood on October 7, 2023, and Israel’s Operation Iron Swords in retaliation. The prosecutor asserted that there were reasonable grounds to believe that all of them bore criminal responsibility for war crimes and crimes against humanity. One pointed reference in Mr. Khan’s application was to Tel Aviv’s alleged intentional starvation of civilians as a method of warfare, a war crime under the 1949 Geneva Conventions.

The Conservative government opposed the ICC’s application for arrest warrants on Israeli leaders. The former prime minister Rishi Sunak called the move “deeply unhelpful.” U.K. lawyers maintained that the question of the Court’s jurisdiction over Israeli citizens had to be ascertained before arrest warrants could be served to Mr. Netanyahu and Mr. Gallant. This was necessary, they argued, given that the state of Palestine was not allowed to exercise criminal jurisdiction over Israeli citizens under the 1993 Oslo Accords, which has been superseded by the 1998 Rome Statute.

In 2019, then chief prosecutor Fatou Bensouda deemed it fit to seek further confirmation regarding the ICC’s jurisdiction in Palestine since it was an occupied territory rather than a sovereign state. On February 5, 2021, the Hague Court ruled that it could exercise criminal jurisdiction in occupied Palestinian territories, and that its reach extended to Gaza and the West Bank, including East Jerusalem. The Court also made it categorical that its jurisdiction covered crimes committed by nationals of states-parties and by nationals of non-states-parties on the territory of a country. Thus, Israel’s refusal to ratify the Rome Statute is not directly relevant since the ICC prosecutes individuals and not countries, including citizens from states that are not signatories to the treaty.

Weeks after the February 2021 ruling, the ICC launched investigations into alleged war crimes in Palestinian territory, including the 2014 Gaza war and the illegal construction of settlements in the occupied territory.

In the wake of the removal of Britain’s objections to the prosecutor’s actions, it may be a matter of time before the ICC issues arrest warrants against the five leaders. In that event, Prime Minister Netanyahu would earn the dubious distinction of becoming the first head of government backed by western countries to be indicted by the ICC. Such a scenario would expose Israel’s allies, especially the U.S., to immense domestic opposition against the supply of arms to that country. Tel Aviv already faces charges of genocide in the International Court of Justice and would face further isolation around the world. A potential indictment would severely restrict Mr. Netanyahu’s travels, with the imminent risk of being detained by any of the 124 signatory states to the ICC. Conversely, the Hague Court, already under attack for its narrow focus on investigating impunities among African countries, faces the risk of undermining its relevance should the judges decide not to proceed against Israel.

The writer is Director, Strategic Initiatives, AgnoShin Technologies.