Bepi Pezzulli
International counsel & foreign policy adviser

UK on the rocks: The flaws in Lammy’s ICC stance

Official Portrait of David Lammy (UK Parliament - CC BY 3.0)

So much for Sir Keir Starmer having changed Labour’s stance on anti-Zionism for good. It took less than 48 hours for the new British government to take its first governmental actions against Israel.

The Guardian, a daily newspaper close to the Labour Party, broke the news that Downing Street is now expected to abandon efforts to delay the International Criminal Court’s (ICC) decision on issuing an arrest warrant for Israeli Prime Minister Benjamin Netanyahu over alleged war crimes in Gaza. By contrast, under the previous government, the UK had filed an amicus brief contesting the ICC’s 2021 decision asserting jurisdiction over Israeli actions in Palestinian territories

This development follows Sir Keir’s phone conversation on Sunday with Palestinian Authority President Mahmoud Abbas. Starmer affirmed the Palestinians’ undeniable “right to a state” and discussed the “ongoing suffering and devastating loss of life” in Gaza. In an earlier call to Netanyahu, the prime minister had emphasized the “clear and urgent need for a ceasefire” in Gaza, alongside an increase in humanitarian aid reaching Gazans.

Starmer’s stance is not improvised; rather, it seems to align with a developing position that Labour has cultivated in the lead-up to the general election. Shortly before polling day on July 4, in a contentious interview with Fareed Zakaria on CNN, the newly-appointed Foreign Secretary David Lammy had announced Labour’s controversial commitment to complying with any arrest warrant issued by the ICC against Netanyahu. Lammy made it clear that a Labour government would uphold the ICC’s directives, stating, “The architecture that was created after the Second World War, the rules-based order that we believe so much in, the international legal structure – one of the big architects of that was [Sir Winston] Churchill in our country.” He added, “We believe in the ICC and the ICJ (…) We believe in international law. We also believe in the separation of powers.”

Lammy’s legalistic stance is flawed, however. The foreign secretary overlooks critical legal limitations and could have significant negative consequences for the UK.

Firstly, Lammy’s position is based on a misunderstanding of the ICC’s jurisdiction. The ICC cannot order the arrest of Israeli citizens because the Palestinian authorities, under the Oslo Accords, have no jurisdiction over Israeli nationals. Therefore, Palestinians cannot transfer their jurisdiction over to the ICC. This legal position has been consistently maintained by successive HM governments thus far. This fundamental legal constraint makes Lammy’s commitment legally unenforceable and diplomatically reckless.

Moreover, pursuing this stance could severely damage the UK’s diplomatic relations with Israel, a key ally in the Middle East. It could also strain relations with the United States, which is not a signatory to the ICC statute and has historically opposed ICC actions against its allies. By aligning with the ICC on such a contentious issue, the UK risks isolating itself from its two key international partners.

Furthermore, this position could destabilize ongoing peace processes in the Middle East. Arresting a sitting Israeli prime minister would likely escalate tensions, undermine dialogue, and potentially incite further conflict. The delicate balance of negotiations and peace efforts could be disrupted, leading to greater instability in the region.

There is also a rather alarming contextual misunderstanding. Lammy’s assertion that Europe would uniformly comply with any ICC warrants is overly simplistic at best and diplomatically naive at worst. This blanket commitment fails to account for the varied and often conflicting interests of European nations in Middle Eastern affairs.

Domestically, Lammy’s stance may alienate voters who are concerned about national security and international relations. It portrays a lack of pragmatic foreign policy and could be perceived as prioritizing international legalism over national interest and security.

Ultimately, Lammy’s position on ICC compliance is legally flawed and diplomatically risky. It disregards the ICC’s jurisdictional limitations and could lead to significant negative consequences for the UK’s international relationships and regional stability in the Middle East.

Lammy’s lack of experience and ideological overzeal pave a risky road where principles may falter and alliances fray. Britons may have voted for change, but perhaps not quite this variety.

About the Author
Giuseppe Levi Pezzulli ("Bepi") is a Solicitor specialised in International financial law and a foreign policy scholar. His research interest is economic statecraft. In 2018, he published "An alternative view of Brexit" (Milano Finanza Books), which investigates the economic and geopolitical implications of Brexit. In 2023, "Brave bucks" (Armando Publishing House), which highlights the role of private capital in the industrial policy mix. Formerly an Editor-in-Chief of La Voce Repubblicana; is a columnist for the Italian daily financial newspaper Milano Finanza; a pundit for the int'l financial TV channel CNBC; and a Middle East analyst for Longitude magazine. He received degrees at Luiss Guido Carli in Rome (LLB), New York University (LLM), and Columbia University (JD), and stood for a seat in the UK Parliament at the general election 2024.
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