Yesterday, the International Criminal Court announced that it was issuing arrest warrants against Israeli prime minister Benjamin Netanyahu and his former defence minister Yoav Gallant on charges of crimes against humanity and war crimes. There is little likelihood of the arrest warrants being enforced, but the ICC’s credibility has taken a hit, perhaps a fatal one.
The arrest warrants came about as the result of a flawed process. The ICC’s chief prosecutor, the beleaguered British lawyer Karim A.A. Khan KC, who is currently being investigated by his own court for alleged sexual misconduct (he denies the allegations) set the tone when he convened a hand-picked “panel of experts” to advise him on whether to issue the warrants.
As Lord Macdonald of River Glaven KC, the former Director of Public Prosecutions, put it at a Policy Exchange panel on the ICC in September, either the Prosecutor was seeking a rubber-stamp for his decision to ask for arrest warrants, or he had outsourced his prosecutorial discretion to outsiders, several of whom, he said, were on record beforehand as accusing Israel of various international crimes. Neither scenario reflects well on the ICC as an institution.
The ICC has bypassed Israel’s own prosecutors, despite them having a good track record and fierce independence
In issuing the arrest warrants, the ICC also bypassed Israel’s own prosecutors who, under the Court’s own founding principles, should have the first shot at investigating and, if necessary, prosecuting such crimes. Israeli prosecutors have a good track record of investigating the powerful. Indeed, Mr Netanyahu is currently on trial on charges of corruption, which perfectly illustrates their fierce independence.
There was also the inescapable problem that the ICC simply lacked jurisdiction over Israeli officials. International courts do not have jurisdiction over states unless the latter have agreed to it. As was its right, Israel chose to not become a member of the International Criminal Court, and so has never agreed on the Court having jurisdiction over Israeli citizens.
The ICC can also have jurisdiction if the acts were committed on the territory of a member state. But while it claims that the State of Palestine is a member of the Court, neither Israel nor many Western countries, including the United Kingdom, recognise Palestine as a state. Given that only states can accept the ICC’s jurisdiction, this represents another fatal flaw in the Court’s decision.
Leaving aside questions of pure legality, the ICC's decision to issue arrest warrants is also a setback for efforts to bring about peace in Gaza. Almost everyone agrees that the only way to secure a lasting peace in the region is through a negotiated settlement of some sort.
But arrest warrants, the most inflexible of legal instruments, make it much harder to achieve a negotiated peace settlement, not least by rallying the always fractious Israeli society around Mr Netanyahu.
As Sir Daniel Bethlehem KC, the Foreign Office’s former chief legal advisor, pointed out at the Policy Exchange event, there does not appear to be a way for ICC arrest warrants to be withdrawn once they are issued, which stands in contrast to English practice, whereby prosecutors can do so if it is in the interests of justice.
With the arrest warrants hanging over him, not only will Mr Netanyahu not engage with the ICC, but his successors won’t either. There is also every prospect that the next American administration sanctions the ICC and possibly any state that seeks to enforce the arrest warrants, thus putting the Court on a very precarious course over which it has little control.
The ICC’s decision to issue arrest warrants will not bring the Middle East any closer to peace. It may, however, have signed the warrant of its own demise.
Dr Yuan Yi Zhu is a senior fellow at Policy Exchange and an assistant professor of international relations and international law at Leiden University.
