An intervention by the UK government at the international criminal court is expected to delay a decision over whether an arrest warrant can be issued against the Israeli prime minister, Benjamin Netanyahu, for alleged war crimes in Gaza.
Judges at the ICC ruled on Thursday they would allow the UK to make legal arguments in the case as they consider whether to approve requests made by the ICC’s chief prosecutor for warrants against Netanyahu and his defence minister, Yoav Gallant.
According to court papers, after the prosecutor made the requests the UK argued that the judges hearing the case must address “outstanding” questions about the ICC’s jurisdiction over Israeli citizens before deciding whether to issue the warrants.
The decision to allow the UK to submit arguments in the case has caused concern among some international law experts that Britain’s intervention is politically motivated and an attempt to reopen legal issues many argue have previously been settled.
In February 2021, a panel of ICC judges issued a ruling confirming the ICC had jurisdiction in the occupied Palestinian territories. The decision cleared the way for the ICC’s previous chief prosecutor to open a criminal investigation into alleged atrocities in Gaza, the West Bank and East Jerusalem.
However, last month the UK government told an ICC pre-trial chamber the 2021 ruling “did not determine” jurisdictional issues relating to the Oslo accords, the interim peace agreements signed between the Palestine Liberation Organisation and Israel in the 1990s.
UK government lawyers argued the judges have to therefore “make an initial determination” over whether the ICC can exercise jurisdiction over Israeli citizens “in circumstances where Palestine cannot exercise criminal jurisdiction over Israeli nationals pursuant to the Oslo accords”.
The arguments advanced by the UK echo claims made by current and former senior Israeli officials interviewed by the Guardian in recent months. One senior Israeli official insisted “the jurisdictional issues are not resolved” as Palestine “doesn’t have the powers to delegate [jurisdiction] to the court”.
Experts said the decision to allow the UK to intervene on this issue could cause delays to the arrest warrants case, though a former ICC official familiar with the 2021 case said the jurisdictional issues had been resolved and, if challenged, would be “dead on arrival”.
According to Mark Kersten, an ICC expert and criminal justice professor at the University of the Fraser Valley in Canada, “it would beggar belief” if the judges decided that Palestine, an ICC member state, “could not ask the court to address atrocities committed on its territories because of a moribund Oslo peace process”.
Danya Chaikel, the International Federation for Human Rights’ representative to the ICC, said the UK’s attempt to challenge ICC jurisdiction using the Oslo accords was “deeply troubling and unjust”.
She said the UK appeared to be “prioritising diplomatic relationships over accountability for international crimes” and that its attempt to challenge the ICC’s jurisdiction also failed “to address Israel’s noncompliance with the Oslo accords, particularly concerning settlement expansions in the West Bank”.
Responding to the decision, Clive Baldwin, a senior legal adviser at Human Rights Watch, said: “The UK should not be leading the charge for double standards in victims’ access to justice. The next government will need to immediately decide if it supports the ICC’s essential role in bringing accountability and defending the rule of law for all.”
A spokesperson for the Foreign Office said: “The UK believes that the court has not yet engaged with the impact and effect of the Oslo accords on jurisdiction in this case and we think it is imperative that they do so at any early stage of proceedings.”
