Yuan Yi Zhu – The International Criminal Court (ICC) has issued arrest warrants against Israeli prime minister Benjamin Netanyahu and his former defence minister Yoav Gallant for alleged war crimes and crimes against humanity (a third warrant was issued against a Hamas commander, believed to be dead). In so doing, the ICC has undermined – perhaps fatally – its own credibility, as well as prospects for a peace settlement in Gaza.
The process which led to the warrants was compromised from the very beginning, when the ICC’s Prosecutor, Karim Ahmad Khan KC, (above) who is currently being investigated for alleged sexual misconduct (he denies the allegations), convened a ‘Panel of Experts in International Law’ to provide support for his decision to seek the warrants.
More troubling is the fact that the Court had no jurisdiction at all to issue these warrants
The panel’s entire membership was selected by Khan, which raised concerns about its impartiality.
As Lord Macdonald, the former Director of Public Prosecutions, pointed out in a September 2024 panel discussion at Policy Exchange, at least two of the Panel’s members had publicly accused Israel of international crimes beforehand, while at least two others had personal links to the Prosecutor.
The charges themselves are legally problematic. To take but one example, Netanyahu and Gallant are accused of using starvation as a method of warfare, which would be a war crime. Yet as Dr Emanuela-Chiara Gillard, a leading expert in the law concerning civilian protection, pointed out at the Policy Exchange event, the mere existence of food insecurity in a warzone does not mean that a crime has been committed.
Many of the issues with aid delivery in Gaza are caused by self-imposed limitations by aid agencies and the United Nations, the activities of Hamas, and others. Are they liable to be prosecuted on the same charge? As Gillard points out, the war crime of starvation has never been prosecuted before, and for good reason.
To guard against procedural improprieties, the Prosecutor can only apply for arrest warrants from the Court, which should have refused to issue them for very good legal reasons. For one thing, the ICC’s jurisdiction is based on ‘complementarity’, meaning that it only steps in when national authorities are unable or unwilling to investigate and prosecute. But Israel’s fiercely independent prosecutors were not allowed the opportunity to investigate the claims of international crimes themselves before the ICC issued these warrants.
Even more troubling is the fact that the Court had no jurisdiction at all to issue these warrants. A fundamental principle of international law is that a state is not bound to the jurisdiction of an international court unless it has agreed to do so. But Israel, like three of the United Nations’s five permanent members, has chosen to not join the ICC, as is its sovereign prerogative, so the ICC does not have jurisdiction over its nationals on that basis.
Although the Palestinian Authority has purported to join the ICC, which would give the Court jurisdiction over Israeli nationals who committed acts on Palestinian territory, Palestine is not recognised as a state by Israel and many countries, including the United Kingdom. Its alleged membership of a Court whose membership is only open to sovereign states is highly dubious.
Moreover, as part of the historic Oslo Peace Accords of 1993, the Palestinian Authority agreed to not exercise criminal jurisdiction over Israeli nationals, a promise which its purported accession to the ICC was clearly calculated to circumvent. The previous British government, mindful of the importance of the Oslo Accords, had planned to make submissions to the ICC on this point.
But the new Attorney General, Lord Hermer KC, whose dogmatic adherence to a maximalist vision of international law I have profiled in these pages, decided to withdraw these submissions before they were even presented.
The Oslo Accords issue raises an even more fundamental objection to the arrest warrants. Almost everyone accepts that the only way to end the war in Gaza and to implement a lasting peace is through a negotiated settlement. But the ICC’s warrants may well make such an outcome impossible.
Already, Israeli public opinion has understandably rallied around Netanyahu and against the Court, making a settlement of any sort less likely. What’s more, once issued, an ICC warrant cannot be withdrawn. This is in contrast with English procedure, where prosecutors have the right to discontinue proceedings if it is in the interests of justice to do so. By seemingly cornering Mr Netanyahu, the ICC gives him no other choice than to double down.
Meanwhile, the next American administration may well impose sanctions against the ICC as a result of the warrants, which would cripple its operations, so that the warrants’ supporters may only achieve a Pyrrhic victory. As Professor Richard Ekins KC of the University of Oxford writes, the lawfare against Israel only damages the credibility of the institutions that engage in it.
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Dr Yuan Yi Zhu is a senior fellow at Policy Exchange and an assistant professor of international relations and international law at Leiden University. This article was first published by The Spectator.
