‘There’s a strong evidential basis’ for ICC to grant arrest warrants for Netanyahu, says criminal law expert

The Chief Prosecutor at the International Criminal Court is seeking arrest warrants for the Israeli Prime Minister Benjamin Netanyahu and his defence minister, as well as the Hamas leader in Gaza Yahya Sinwar, and two other leaders, over what he said were crimes against humanity.

We spoke to barrister Toby Cadman, who specialises in international criminal and human rights law.

Krishnan Guru-Murthy: There’s an argument over whether the ICC has jurisdiction here. The Americans, Israelis and Britain are saying they don’t. How does it have jurisdiction when Israel isn’t a signatory and Palestine isn’t a state?

Toby Cadman: First of all, one of the things that we’ve heard is there was the report by the panel of experts, and one of the things that they’ve looked at very carefully is the question of jurisdiction and very clearly declares that Palestine is a state for the purpose of the Rome Statute of the International Criminal Court, and has stated that the the attacks in Gaza, which Karim Khan has referred to as “a complete siege of Gaza”, is part of an international armed conflict. And the attacks by Hamas in Israel are part of a non-international armed conflict.

Krishnan Guru-Murthy: So they can say that even though Palestine isn’t an internationally recognised state, for the purposes of the court, it is. It’s going to sound odd to people.

Toby Cadman: Effectively what they’re saying is they’re confirming that Palestine is a state. Now, if we go back to 2015, when Palestine ratified the Rome Statute, and in 2018 when it referred itself to the International Criminal Court, the prosecutor at that time took the rather extraordinary step of asking a panel of the pre-trial judges to determine whether the office of the prosecutor had jurisdiction over what happened in Palestine. And the panel of judges clearly said that it does.

Krishnan Guru-Murthy: So does this mean that if an arrest warrant is granted, any country that is a signatory to the ICC would have an obligation to arrest Netanyahu if he sets foot in that country?

Toby Cadman: Absolutely, yes. It’s very clearly what it means.

Krishnan Guru-Murthy: So this could massively restrict his ability to act as an international leader.

Toby Cadman: It could and it should, yes.

Krishnan Guru-Murthy: Why wouldn’t that arrest warrant be granted? What would be the argument against it, given the prosecutors applied, saying there’s a case to answer?

Toby Cadman: It’s certainly not going to be a question of jurisdiction, because that question has clearly been answered. And just to be clear, the jurisdictional question, Palestine as a state, so any crimes that are committed on the territory of Palestine, falls within its jurisdiction. And any crimes committed by a Palestinian national in Israel would also fall within its jurisdiction.

So it’s not going to be a question of jurisdiction. It’s an evidential question. And certainly what we’ve seen so far, what has been said by Karim Khan today and what we’ve been seeing for the last few months, very clearly, there is a very strong evidential basis for those arrest warrants to be granted.

Krishnan Guru-Murthy: We have seen in the past arrest warrants not being enforced, by South Africa most recently, so does this end up being any more than grandstanding if nobody arrests him?

Toby Cadman: I wouldn’t say he’s grandstanding. Of course, what Karim Khan has done, and again he has taken the rather extraordinary step of making this public now, which is something he didn’t do with the Putin arrest warrant. But of course he’s hopeful, as we’ve heard from him, that this will have more of a preventative effect, to prevent further crimes from being committed.

We’ve also heard from Netanyahu, and we’ve been listening to Israeli leaders, with this rhetoric over the past few weeks that nothing will stop them. But of course, what it does mean is that the warrants issued by the International Criminal Court, we have seen what happened in South Africa with [former Sudanese President Omar] al-Bashir, I think it’s unlikely that we would see the same. What almost certainly will happen will be European states, predominantly European states, who are members of the ICC, will try to deter Netanyahu and his defence minister from actually travelling to those countries because they would be obligated to arrest.