Palestine cannot prosecute Israelis, so the ICC cannot either, UK argues in previously secret filing

People gather around an impact crater in the aftermath of Israeli bombardment in the Sabra neighbourhood in the south of Gaza City on 27 June 2024 amid the ongoing conflict in the Palestinian territory between Israel and Hamas. (Omar Al-Qattaa/ AFP)

• The UK has been given until 12 July to tell the ICC why it cannot touch Israeli citizens such as Benjamin Netanyahu and Yoav Gallant.
• The ICC on Thursday made public a UK application on its jurisdiction around war crimes in Palestine.
• Because the PLO signed away criminal jurisdiction over Israelis in Palestine in the 1990s, it cannot grant the ICC authority to prosecute, the UK argues.

The UK believes the International Criminal Court (ICC) does not have jurisdiction over Israeli citizens accused of war crimes in Palestine and will now get to make that argument formally.

If it succeeds, that could prevent the issue of arrest warrants for Israeli Prime Minister Benjamin Netanyahu and his defence minister, Yoav Gallant. 

On Thursday, the ICC’s Pre-Trail Chamber I granted the UK the opportunity to give it written argument on the issue as a friend of the court. 

ICC prosecutor Karim Khan has asked the court to issue arrest warrants for people on both sides of the Hamas-Israel war, saying the court had jurisdiction on both sides of the border and both Hamas and the Israeli military had committed clear crimes against humanity.

In 2021, the ICC pushed out a decision on whether it has jurisdiction over Palestine as defined by the 1967 borders, which covers East Jerusalem, the West Bank, and Gaza.

At the time, it noted there was an argument the ICC did not have jurisdiction in any of those areas because of the 1990s-era Oslo Accords between Israel and the Palestine Liberation Organisation.

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A final call on the issue could be made when a prosecutor asked for arrest warrants, the court said at the time.

It has now been asked to sign off on just such warrants, for Hamas officials Yahya Sinwar, Mohammed Diab Ibrahim Al-Masri, and Ismail Haniyah as well as Netanyahu and Gallant.

The Oslo II Accord and an associated Protocol Concerning Legal Affairs “make it clear that Palestine itself does not have criminal jurisdiction over Israeli nationals”, the UK said in its filing.

That means Palestine cannot delegate its authority to the ICC, which leaves the ICC unable to arrest Israeli nationals for crimes against humanity committed in Gaza and the West Bank.

The UK’s application to be able to argue the ICC’s lack of jurisdiction was filed as secret on 10 June, under ICC rules of evidence that deal with sensitive matters with a default to secrecy.

The UK simultaneously applied for its submissions to be made public, on the basis there was no need for secrecy because the details of the arrest warrants sought had already been made public. 

The UK said it would be arguing only legal issues and would not touch on the substantive evidence, so even though the full ICC case against Netanyahu and Gallant remains secret, the UK’s arguments need not be. 

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On Thursday, the ICC agreed, effectively unsealing the records.

The UK has until 12 July to file no more than 10 pages of argument with the ICC.

The court said while it was not making “an open call” for other submissions, it acknowledged other parties might also want to get involved in the jurisdiction argument.

They too may now file arguments by 12 July.