Article published in The Spectator, 31 August 2024. © Richard Kemp

The actions of the International Criminal Court’s Chief Prosecutor, Karim Khan, will deprive Israel of its sovereignty and undermine the West’s defence against terrorists and despots. The US must put a stop to it.

In a submission to the ICC last week, Khan doubled down on his demands to arrest Israeli Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant. He was responding to a multitude of submissions made to the Pre-Trial Chamber contesting the arrest warrants he demands. Most of these submissions questioned the ICC’s jurisdiction over Israel.

Israel, like the US and many other countries, is not a state party to the ICC. Before 2015, that placed Jerusalem outside the scope of the ICC’s legal powers, much as the court might have wished otherwise. That year, ‘Palestine’ became a member of the ICC, even though it is not a full member state of the UN. In order to secure jurisdiction over Palestine, and by extension over Israel too, the court unilaterally and without any legal authority decided on its boundaries: ‘the West Bank’, east Jerusalem, and Gaza. Of course borders can only be agreed by direct negotiation between Israel and the Palestinian Authority, which has not been achieved. That though is an inconvenient detail to be ignored by an ICC that wants Israelis in the dock at the Hague.

One of the main issues raised by those challenging Khan’s application, including the previous UK government, is that ICC jurisdiction over Israel violates the Oslo Accords. No matter, says the Prosecutor: the Rome Statute, which founded the ICC, overrides even that legally-binding bilateral treaty.

Khan objects to the restricted legal powers granted to the Palestinian Authority under the Oslo Accords, which effectively nullify ICC jurisdiction over Israelis in PA-controlled territory including Gaza. According to him, that can’t be so because it is not up to Israel as an ‘occupying power’ to impose legal restrictions on a sovereign people. He of course rejects the reality, so hotly debated for so many years, that ‘Palestine’ is not in fact a sovereign state and Israel cannot be an occupier of territory over which, since 1948, only (more…)