[20 September 2021] – In February 2021, the International Criminal Court (ICC) determined that it possessed territorial jurisdiction in relation to the situation in Palestine, paving the way for a formal investigation into alleged war crimes committed by all parties to the conflict since 2014. Immediately following this decision, Israeli media outlets reported that:
"Senior [Israeli] security officials said a number of ICC member states have agreed to give advance warning to Israel of any intent to arrest Israelis on their arrival in those countries or if a request for an arrest warrant is issued against them. At the same time, Israel might ask those on the list to refrain entirely from travelling abroad, to avoid arrest or trial."
If true, the provision of advance warning of legal action by ICC member states to just one side in a conflict diminishes the standing of the Court and undermines confidence and faith in a genuine "rules-based order". Based on these concerns, the following written question
was addressed to the UK government on 3 September 2021:
"To ask the Secretary of State for Foreign, Commonwealth and Development Affairs, with reference to the decision by the International Criminal Court of 5 February 2021 to extend its jurisdiction to the territories occupied by Israel in 1967, whether the Government has agreed to give advance warning to the Israeli Government (a) of any plans to arrest Israelis on their arrival in the UK and (b) in the event that a request for an arrest warrant is issued against an Israeli citizen.
The UK government responded
on 13 September 2021 in the following terms:
"The UK is a strong supporter of the International Criminal Court (ICC) and we respect the independence of the Court. In this instance, we do not consider that the ICC has jurisdiction as the UK does not currently recognise Palestinian statehood."
The UK government's response is noteworthy for at least two reasons:
First, the Minister chose to ignore the question he was asked, namely, whether the UK government has provided assurances to the Israeli government to provide advance notice of pending legal action at the ICC. This gives rise to a rebuttable presumption that the UK government has indeed provided such assurances.
Secondly, as a key architect of the "rules-based order", currently still a permanent member of the UN Security Council, and a founding member of the ICC, the UK has consistently expressed the legal opinion
that the Fourth Geneva Convention applies in full to the Israeli/Palestinian conflict, and as such, all Israeli settlement construction is illegal, as is the forcible transfer
of Palestinian detainees from the West Bank to prisons located inside Israel. UK ministers have also expressed the view
that "illegal annexation" and the transfer of prisoners out of occupied territory jeopardizes "the international rules-based system" and are violations deserving of targeted sanctions - at least when these activities are perpetrated by Russia, a strategic adversary, in the Crimea.
However, with regards to the Israeli/Palestinian conflict, the UK government appears to have adopted a policy of blocking legal accountability in favour of a strategic partner - for example: in 2011 the UK amended
its domestic law limiting the ability of individuals to invoke universal jurisdiction following lawful attempts to obtain arrest warrants for, but not limited to, Israelis suspected of war crimes arriving in the UK; and in 2021, with the announcement that the government now rejects the ICC's jurisdiction over the Israeli/Palestinian conflict in circumstances where the UK declined an invitation to make submissions to the Court on this issue prior to judgment.
The reason behind this selective application of "the rules-based order" was perhaps best explained by a UK government minister when responding
recently to another parliamentary written question:
"The UK’s position on settlements is clear. They are illegal under international law, present an obstacle to peace, and threaten the physical viability of a two-state solution. The UK and Israel have a strong and important trading relationship and we are firmly opposed to boycotts or sanctions. But we do not recognise the Occupied Palestinian Territories, including the settlements, as part of Israel. We urge Israel to halt settlement expansion immediately."
In other words, although the UK accepts that Israel is in clear violation of international law amounting to war crimes
, accountability, in whatever form it may take, will be blocked due to "a strong and important trading relationship". Whilst this position is understandable in an interests-based system, it has no connection with a genuine rules-based order and undermines the latter’s credibility, and possibly, long-term viability if member states pick-and-choose which court rulings they will accept.
The potential risk associated with dressing up an interests-based system to resemble a rules-based order is that it devalues Western statements regarding human rights, the rule-of law and accountability - principles that if genuinely adopted in good faith, provide the West with an unassailable advantage in an increasingly autocratic world.
It should also be noted that Israeli media reports suggest that the UK is not the only ICC member state
to have provided assurances to Israel to give advance warning of pending legal action.