UK clears path to ICC arrest warrants: why pretend it’s anything but political?

In our enlightened political age, when a highly controversial political decision is taken, the decision-maker is normally expected to be able to justify the decision in political terms, both to those whom it benefits and, particularly, those whom it burdens. A debate then usually ensues in wider society about the merits of the decision taken. Politics, after all, is all about decisions taken on issues upon which people reasonably disagree.

Where this is done well, politics can work as a constructive force, where the electorate can still retain trust in a decision-maker’s integrity even if they reasonably disagree with a decision that burdens them.

Where such trust can often become lost, however, is where – against all evidence to the contrary – it is pretended that such a decision was not political at all. 

May I suggest that this is exactly what happened after last week’s announcement from the new UK Labour Government that it will not proceed with a legal objection, proposed by the previous Conservative administration, to the ICC Prosecutor’s request for arrest warrants against Benjamin Netanyahu and Yoav Gallant. 

While the legal objection was not formally lodged due to the (then) upcoming General Election, it represented the official policy position of the (then) UK Government on the matter. It was requested not only for political reasons – a loud and proud commitment by the last UK Government to Israel and to its war efforts against Hamas after October 7 – but for well-founded legal reasons too.

The thrust of the proposed objection was about jurisdiction. Space prevents me from exploring it in the depth it deserves. A pithy summary of the controversy is that Israel is not a party to the ICC’s founding Rome Statute, but that the ICC, in a quest to ensure there was no resulting lack of a pathway to justice for Palestinians, has itself decided to unilaterally recognise a state of Palestine, and to arrogate to itself jurisdiction over acts committed by Israel (again, not a party) on the territories of that deemed state. As a result, the UK requested leave from the ICC to lodge observations on whether the ICC had jurisdiction in this case, “in circumstances where [under the Oslo Accords] Palestine cannot exercise criminal jurisdiction over Israeli nationals.” This argument is but one part of the UK’s request, which ran to 15 pages of well-grounded legal observations.   

Last Friday (26 July), the new Labour Government decided not to proceed with this proposed objection. Broadly, this could only have been for one of two reasons – legal, or indeed, political. 

We know that legal reasons weren’t behind the UK Government’s decision to abandon the request. As far as I can see, no comments on the legal merits of any of those 15 pages of arguments have been forthcoming from ministers. There has been no statement about how, and if so, why, the previous UK Government were wrong in purely legal terms to propose these objections.

So that leaves just one remaining possibility. And this is exactly why, on the day of the announcement, the Jewish Leadership Council and the Board of Deputies observed (entirely correctly) that this decision was in fact a “significant shift in … [and] reversal of long-term UK foreign policy.”

To many, this would have been a statement of the obvious. And yet, puzzlingly, many supporters or observers of the UK Government’s decision have, together with the UK Government itself, been very keen to downplay the claim that this was political at all. Several journalists, including pro-Israel ones, have claimed it was down simply to a “belief that international courts should be free to investigate allegations against our allies“, who “should be subject to the same legal processes as others“. It was not a “judgment on [the] case for or against” Netanyahu, but “a sign the UK Government recognises the Court’s power to make legal decisions.” The UK Government themselves offered up the same reasons – the matter was one “for the court to decide“, the Government believes strongly in the separation of powers and the rule of law, and “the courts have already received a number of submissions on either side, so they are well seized of the arguments.“ 

This is unmitigated nonsense. Withdrawing a planned legal objection for the simple reason that you would otherwise be seen as betraying your “belief” in the rule of law, the separation of powers and the independence of domestic and international courts, is highly implausible. The reason that the UK Government is able to submit these observations in the first place is because it is their legal *right* to do so – a right granted directly by the ICC itself, in Rule 103 of its Rules of Procedure and Evidence. Every other set of intervening submissions from states (including non-states parties to the ICC), from NGOs or from individuals, has been made under the right in Rule 103.

In other words, the very reason the ICC has received a “number of submissions on either side”, as the UK Government correctly, notes, is because it has given those interveners the right to do so. And the right exists so that the ICC is as well-informed on the case as it can be, by being given the chance to encounter arguments it might not have considered from the parties themselves in their oral or written submissions. Are all of those interveners undermining their belief in the ICC, its independence and the international rule of law by exercising the very right they have been given by that framework? The answer is obvious. 

Nor is it any answer to say that because the ICC has already received several of these observations, “they are well seized of the arguments” they need to make their decision. If that is the argument that demonstrates the UK is not doing this for political reasons, I would suggest it needs re-thinking. Not only does the UK have the right to raise these arguments against the ICC’s jurisdiction, it has the opportunity to do it in its own name, and in doing so, to lend those arguments the added weight of having come from a nation with arguably the greatest reputation for upholding liberal democracy, the rule of law and the separation of powers. It is utterly disingenuous to suggest that by raising the question of jurisdiction before the ICC – a question so preliminary and so central that the ICC itself must always consider it before proceeding any further – the UK is somehow reneging on its belief in the ICC and the underlying international law framework as a whole. 

What emerges, then, is a completely flawed attempt at pretending that this was not a political decision. And yet, oddly, there is nothing at all wrong with that per se. There is nothing inherently wrong with the UK Government taking this decision for political reasons, with people choosing either to support it or (in my view, rightly) to strongly and sincerely disagree with it, and with a debate then ensuing, as normal debates in politics do. But unfortunately, it is now all too common for our elected politicians to shy away from justifying in political terms the decisions they occasionally must make on the most controversial and fraught questions of our time, and to confront the political cost. Far easier now, it seems, to pretend it was never political at all.  

So, yes, the decision is nakedly political. Yes, it is a significant shift in the UK’s long-term foreign policy, away from Israel – the Board of Deputies and Jewish Leadership Council were entirely correct to point that out. And it is a huge insult to the intelligence of Jews, Zionists, proud supporters of Israel in the UK, and all others who believe that there are huge problems with the ICC’s involvement in this arena, to suggest it was ever anything else.