Israeli Prime Minister Benjamin Netanyahu and former Defence Minister Yoav Gallant would be set to face arrest if they stepped foot in Britain following the International Criminal Court decision to issue warrants against them for alleged war crimes in Gaza.
Unlike the USA or Israel, Britain is one of the 124 states that are members of the court and, according to the International Criminal Court Act of 2001, has agreed to act on the court’s decisions.
A British court would have formally to approve anyone arrested here on an ICC warrant being handed over to the Hague-based court – but there does not seem much room for discretion.
The previous Conservative government had been willing to challenge the ICC’s jurisdiction over events in Gaza after the court’s chief prosecutor declared his intention to bring charges against Israeli leaders.
But the Attorney-General of the new Labour administration, Lord Richard Hermer, has previously stated that the government was “determined not to do anything that undermines the work of the ICC”.
Anthony Metzer KC, a leading human rights barrister, said, “The new UK government is saying this is not a political decision, but a purely legal question indicating that they will not intercede as a government.”
In theory, Israel could still send lawyers to challenge the court’s right to hear the case – although having issued the arrest warrants, the court has already signalled it has made up its mind.
Metzer said the best way to describe the warrants was as “a sort of international ‘house arrest’ for the many countries that recognise the jurisdiction of the ICC under the Rome statute.
“Although Netanyahu doesn’t do that much international travel outside America, the ramifications are quite substantial in terms of where they could now safely travel without fear of arrest.”
The ICC’s decision was condemned by the Board of Deputies as “counterproductive” and sending “a terrible message. The court has minimalised how Hamas fights – deliberately from within civilian infrastructure and cruelly using Palestinian civilians as human shields, tragically leading to many casualties.
“Democratic governments, and people around the world, should consider how they would have responded to an October 7 perpetrated against their country, involving mass murder, rape and hostage taking.”
The Board added: “We should all be focused on defeating the Hamas terrorists, liberating the hostages, ensuring that civilians in Gaza receive all necessary aid and working towards a sustainable peace for Israelis and Palestinians to prevent these horrible conflicts in the future.”
Speaking on Sky News, Home Secretary Yyvette Cooper said that while the UK government respects the “independence” of the ICC and the “role” is has to play, “it wouldn’t be appropriate for me to comment on individual cases in a speculative way.
“In the overwhelming majority of International Criminal Court investigations, they never become a matter for either the British legal and law enforcement processes, or for the British government,” Cooper said. She added that in the case where they do, “there are proper processes that need to be followed”, and declined to comment further.
Sources from Whitehall told the Telegraph that a Cabinet minister — possibly Cooper or the Justice Secretary, Shabana Mahmood — would need to seek a UK arrest warrant from the courts in order for the government to enforce the ICC’s decision, but no move has been taken yet to order one.
The UK position is also different to other countries, because of the ICC Act 2001, which means that there is a domestic legal process in UK courts that has the power to accept or reject the warrant.
In the past, countries have flouted an ICC arrest warrant. In September, President Putin travelled to Mongolia — a country that has signed the Rome Statute — despite the ICC having issued an arrest warrant for the Russian president last year for war crimes, crimes against humanity and genocide.
The impact of the warrants is likely to be limited, since Israel and the USA, the country’s biggest ally, are not members of the ICC. Neither is Russia. But the “Palestinian territories” were admitted as a member state in 2015.
Jerusalem has previously argued that the ICC does not have jurisdiction to rule on its military campaign in the occupied Palestinian territories. But on Thursday, The Hague ruled that Israel’s acceptance of the court’s jurisdiction is “not required”.
“The Court can exercise its jurisdiction on the basis of territorial jurisdiction of Palestine, as determined by Pre-Trial Chamber I in a previous composition,” the ICC said in a statement.
The USA issued a statement “fundamentally” rejecting the court’s decision.
“The United States has been clear that the ICC does not have jurisdiction over this matter. In coordination with partners, including Israel, we are discussing next steps,” the USA national security council said.
US President Joe Biden called the move “outrageous”.
He said: “Let me be clear once again: whatever the ICC might imply, there is no equivalence — none — between Israel and Hamas. We will always stand with Israel against threats to its security.”
“You can expect a strong response to the antisemitic bias of the ICC & UN come January,” tweeted Mike Waltz, who is Donald Trump’s pick for national security advisor in the upcoming USA administration.
Meanwhile, the EU foreign policy chief, Josep Borrell, said the arrest warrants were binding for all EU member states.
Italy’s defence minister Guido Crosetto said Netanyahu would be arrested if he came to the country, as did Dutch foreign minister, Caspar Veldkamp, who said: “When it comes to arrest warrants, it is clear: we execute an arrest warrant.” The Netherlands has declared readiness to act and a trip to Israel next week has been cancelled. Ireland’s Prime Minister Simon Harris also confirmed its respect for the ICC’s decision.
A spokesperson for France’s foreign ministry said it supports “the action of the prosecutor of the court, which acts fully independently,” and government officials from Canada and Jordan said they’d abide by the ruling.
The court on Thursday issued arrest warrants for Netanyahu and Gallant for alleged war crimes relating to the war in Gaza.
“Each bears criminal responsibility for the following crimes as co-perpetrators for committing the acts jointly with others: the war crime of starvation as a method of warfare; and the crimes against humanity of murder, persecution, and other inhumane acts,” the ICC said.
“The Chamber also found reasonable grounds to believe that Mr Netanyahu and Mr Gallant each bear criminal responsibility as civilian superiors for the war crime of intentionally directing an attack against the civilian population.”
Netanyahu’s office condemned the ruling as an “antisemitic decision” and said that “Israel “utterly rejects the false and absurd charges”, while Israeli president Isaac Herzog said the court had “chosen the side of terror and evil over democracy and freedom”.
The decision was welcomed by Hamas, who called it an “important step toward justice”, as well as Palestinian Islamic Jihad and citizens in Gaza, according to Reuters.
The ICC also issued an arrest warrant for Hamas leader Mohammed Diab Ibrahim al Masri, popularly known as Mohammed Deif, who is thought to have masterminded the 7 October attack.
The IDF claimed to have killed the military commander in an air strike in August, however.