By Andrew Whitley and Lara Bird-Leakey
22 November 2024
Yesterday, 21 Nov 2024, the Pre-Trial Chamber of the International Criminal Court (ICC) at The Hague unanimously confirmed arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Defence Minister Yoav Gallant. In doing so, the judges rejected the applications by Israel which sought to dismiss the investigation on the grounds of the court’s lack of jurisdiction in Israel. An arrest warrant was also issued for a Hamas military commander, Mohammed Diab Al Masri (otherwise known as Deif), whose reported death during the current fighting has not been independently confirmed. The warrants were issued against individuals, not the State of Israel.
In its statement, the ICC found reasonable grounds to believe that Netanyahu and Gallant bear criminal responsibility for the “war crime of starvation” as a method of warfare; and “the crimes against humanity of murder, persecution, and other inhumane acts”. In addition, the chamber found reasonable grounds to believe that Netanyahu and Gallant each bears criminal responsibility as civilian superiors for the war crime of intentionally directing an attack against the Palestinian civilian population in the Gaza Strip. The court found no reasonable grounds to justify the Israeli military’s actions in Gaza under international humanitarian law between October 2023 and May 2024.
After 411 days of relentless bombardment of civilians and civilian infrastructure in Gaza, and the killing of over 44,000 people there, the Balfour Project welcomes this landmark decision. It also congratulates the Starmer Government on its public commitment to “always comply” with the UK’s legal obligations, whether under domestic or international law.
The chair of the Foreign Affairs Committee in Parliament, Labour MP Emily Thornberry, was more specific than Downing Street. She said today that, if Netanyahu came to Britain, it would be “our obligation to arrest him.”
With the weight of both the International Court of Justice (ICJ) and the ICC behind it, Palestine relies on all the 124 State parties to the Rome Statute to fully commit to their legal obligations to protect Palestinians, notably in the Gaza Strip, against possible acts of genocide and to comply with the ICC’s arrest warrants. The ICC does not carry out arrests itself, nor does it try individuals in absentia.
‘States are obliged to act to prevent genocide and end impunity; the ICC and ICJ work in conjunction
While the two courts are separate in their scope, application and jurisdiction, the strength of the ICC and ICJ can be held in conjunction. Yesterday’s statement from the ICC referred to the Pre-Trial Chamber’s finding that Israel’s actions have created the conditions of life calculated to bring about the destruction of part of the civilian population in Gaza. This language exactly mirrors Article II (c) of the Genocide Convention – the source of consideration for the ICJ’s Advisory Opinion.
Under Article 1 of the Genocide Convention there is a positive obligation on states to make continuous assessments in situations of potential genocide and to act accordingly to prevent genocide and end impunity. This is also true under the obligations on states under the Geneva Conventions. In its Advisory Opinion the ICJ cited Common Article 1 of the Geneva Conventions, which stipulates that “all the State parties to the Fourth Geneva Convention have the obligation…to ensure compliance by Israel with international humanitarian law as embodied in that Convention.”
The UK’s criteria for licensing arms requires that no arms are transferred where there is a clear risk that such equipment could be used to commit or facilitate serious violations of international humanitarian law (IHL). In September, the Government agreed to a partial suspension of licences granted to Israel but excluded components for F-35 aircraft within the scope of this suspension. By their own admission, they accepted that there was a real risk of IHL being breached by Israel. A loophole was created whereby no end-user stipulation was placed on UK-made parts for F-35s sold to Israel by the US.
By coincidence, that same day a Danish NGO, Danwatch, confirmed that F-35s had been used by Israel in the attack on a Israeli-designated ‘safe zone’ in the Al-Mawasi region of Gaza, which killed 90 civilians.
On 18 Nov, the Government admitted in the High Court that it had relevant information confirming that Israel is not complying with IHL and that it had waited five weeks to act on its own assessment that UK arms were at risk of being used to commit violations. Brought jointly by the leading Palestinian human rights organisation Al-Haq and the Global Legal Action Network (GLAN), this case exposed serious failures in the UK’s decision-making process over arms exports to Israel.
The Balfour Project will continue to closely scrutinise our Government to ensure that its actions always match its rhetoric over UK respect for international law.
Andrew Whitley is Chair of Trustees of the Balfour Project; Lara Bird-Leakey is a member of the BP’s Executive Committee