Netanyahu arrest warrant: Nowhere left to hide for Starmer and Lammy
Israel stands on the international stage accused of plausible genocide by the International Court of Justice (ICJ), with its prime minister and former defence minister accused of war crimes and crimes against humanity by the International Criminal Court (ICC).
With the weight of both the ICJ and the ICC behind it, Palestine now relies on the governments of states parties to the Rome Statute, such as the UK, to fully and convincingly commit to their obligations to prevent and protect against genocide, as well as now to comply with the ICCs arrest warrants.
The law has provided the tools. It's time for the international political community to use them.
On Thursday, the Pre-Trial Chamber of ICC unanimously confirmed the arrest warrants for Benjamin Netanyahu and Yoav Gallant. In doing so, it rejected the applications by Israel brought under Articles 18 and 19 of the Rome Statute which sought to dismiss the investigation on the grounds of the court's jurisdiction in Israel.
In its statement, the ICC found reasonable grounds to believe that Netanyahu and Gallant each 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".
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In addition, the chamber also found reasonable grounds to believe that Netanyahu and Gallant each bear criminal responsibility as civilian superiors for the war crime of intentionally directing an attack against the civilian population.
Furthermore, 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.
A disappointing response
After 411 days of relentless bombardment of civilians and civilian infrastructure in Gaza, and the killing of over 44,000 people, this is a welcomed decision by the ICC.
Despair at what appeared to be the crippled inability of the court to bring perpetrators of war crimes to account has been somewhat quelled. However, the progression by the ICC is somewhat negated by the disappointing response from the British government.
In place of what should have been an instant declaration of support for the ICC, as we saw from Ireland, The Netherlands, Canada and others, in a statement issued following the ICC move, the UK initially took the decision to use the arrest warrant of Netanyahu to reconfirm its commitment to Israel's right to self-defence.
It said: “We respect the independence of the International Criminal Court which is the primary international institution for investigating and prosecuting the most serious crimes of international concern," but added that "Israel has a right to defend itself, in accordance with international law. There is no moral equivalence between Israel, a democracy, and Hamas and Lebanese Hezbollah, which are terrorist organisations.”
Crucially, as the government knows, self-defence must be necessary and proportionate. Fourteen months of plausible genocide, war crimes, and crimes against humanity are neither. The British government must not be so flippant with language that undermines the horrors which Israel has inflicted on Palestinian civilians.
An updated statement on Friday from Downing Street is clearly intended to pacify the outcry at the government’s failure to support the ICC. The statement said the UK would fulfil its obligations under the International Criminal Court Act 2001, which states that it must, on receipt of a request for arrest from the ICC, “transmit the request and the documents accompanying it to an appropriate judicial officer".
Earlier on Friday, with neither the prime minister nor the foreign secretary appearing to make a public comment, it was the home secretary, Yvette Cooper, who was sent out to defend the government's legally and morally ambiguous position.
As home secretary, Cooper is in charge of the police and arrests in the UK. Yet, when asked whether she would act in this capacity and direct the police to arrest a wanted war criminal in the UK, she claimed it would be inappropriate for her to answer.
The tone of the Downing Street statement is draped in resentment at the need to confirm the UK's compliance with international law
Her evasion speaks volumes about the Labour government's discomfort in accepting the obligations now placed on them. We can likely expect impressive political gymnastics from the government in the following days and weeks, in an attempt to negate its clear legal duties within its continuing stance of genocide denial.
The tone of the Downing Street statement is draped in resentment at the need to confirm the UK's compliance with international law. Yet, doubts about Labour's commitment to international obligations did not happen by accident. The government has consistently placed its support of Netanyahu above its duties to comply with the courts.
The failure of the UK government to explicitly confirm its commitment to the ICC warrants is a clear indication that it is more concerned with its relationship with the US and Israel than with the lives of Palestinians and of upholding international law.
It cannot be overlooked that the ICC's confirmation of the arrest warrants came the day after the US vetoed a UN Security Council resolution seeking an immediate ceasefire in Gaza. The vote at the Security Council concluded 14-1, with the UK voting in favour.
The US has, unsurprisingly, already confirmed that it rejects the ICC decision and, while it is rare for the UK to deviate from the US at the Security Council, this was a positive indication of the UK's break from dependency on the US for political direction.
In the face of what is is arguably one of the most crucial international decisions regarding international humanitarian law, the UK government has hidden its lack of categorial declaration that it would arrest Netanyahu amid generalised rhetoric about compliance with international law.
Months of choosing to continue to defend Israel and failing to accept Netanyahu as a war criminal cannot be overlooked by the UK's statement today
The fact that it has had to be so blatantly pushed to declare its support for the ICC will surely confirm the UK government as one of very few outliers, along with the US, in its continued efforts to provide Netanyahu with shields of impunity.
Months of choosing to continue to defend Israel and failing to accept Netanyahu as a war criminal cannot be overlooked by the UK's statement today, though hopefully this is the start of a different political direction.
Moreover, the void of inaction in protecting Palestinians from a genocide, and the UK's 14-month failure to condemn Israel's war crimes, can be seen in the Labour government's disregard for international law in other contexts.
Shielding Netanyahu
In June this year, while in opposition, Labour's foreign spokesperson David Lammy confirmed with no uncertainty that Labour would seek to implement an arrest warrant against Netanyahu once one was issued by the ICC.
Yet Lammy’s recent comments in the Commons sought to disregard the Genocide Convention definition of genocide by placing an arbitrary and legally unfounded numerical requirement on the number of fatalities. This had the effect of undermining both his credibility as a lawyer and his commitment to the accountability of Israel and protection of innocent Palestinian civilians.
This statement wasn’t indicative of a change in government policy, but it is telling of the ambiguity with which the British government interprets the obligations imposed by international law.
The ICC does not carry out arrests itself, nor does it try individuals in absentia. Therefore, it is entirely reliant on the compliance and political will of the 124 states parties to the Rome Statute to enforce their decision.
While the two courts are separate in their scope, application, jurisdiction and process, the strength of the ICC and ICJ can be held in conjunction in many ways.
For example, the ICC statement referred to the Pre-Trial Chambers 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, which has resulted in the death of civilians.
The language of this finding exactly mirrors Article II (c) of the Genocide Convention – the source of consideration for the ICJs Advisory Opinion.
Feigned ignorance
What the UK has so far failed to accept is that under Article II 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. Particularly, the ICJ in its advisory opinion 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 government cannot hide behind a veil of feigned ignorance as to its international legal obligations.
The outcome of both courts' decisions this year overlap in certain contexts. The UKs own domestic 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.
In September, the UK government agreed to a partial suspension of licenses granted to Israel but failed to include F-35 components within the scope of this suspension.
By its own admission, it accepted that there was a real risk of international humanitarian law being breached by Israel, and yet created a loophole whereby it refused to place an end user stipulation on their contribution of F-35 parts to the US – which continues to provide them directly to Israel.
The painful irony of the government's statement in September was that it came on the same day that Danish NGO, Danwatch, confirmed that F-35s had been used by Israel in the attack of a designated "safe zone" in Al-Mawasi, which killed 90 civilians.
On 18 November, the UK government admitted in the High Court that it had information confirming Israel’s violations of international humanitarian law and that they waited five weeks to act on its own assessment that UK arms were at risk of being used to commit breaches against civilians.
The case, brought by Al-Haq and Global Legal Action Network, has exposed serious failures in the UK's decision-making over arms exports to Israel.
The UK government must make it clear whether it will comply with its obligations as per the ICC and ICJ, or not. It cannot continue to say one thing and do another, especially as it has confirmed it is aware that there was a risk that Israel was in breach of international humanitarian law, and that it knew this as early as December 2023.
The UK government must place respect for its own international legal obligations above pandering to the US and allowing for the impunity of a wanted war criminal.
There is nowhere left for the government, Starmer and Lammy to hide.
The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Eye.
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