Would Bibi face arrest?

Two leading academics have challenged the government to say whether it believes Benjamin “Bibi” Netanyahu could be lawfully arrested under a warrant issued last November by the International Criminal Court (ICC) if the Israeli prime minister were to visit the United Kingdom.

In a paper for the think tank Policy Exchange published this morning, Professor Lord Verdirame KC and Professor Richard Ekins KC (hon) reiterate their earlier view that the government would be breaking international law and acting beyond the scope of its powers under the International Criminal Court Act 2001 if it attempted to enforce the ICC arrest warrant against Netanyahu, who announced overnight that an agreement had been reached for the return of hostages held by Hamas since 7 October 2023.

In a foreword to today’s paper, the former director of public prosecutions Lord Macdonald of River Glaven KC — who has spoken to Policy Exchange on the issue before — says that Verdirame and Ekins make

a compelling case for the proposition that, in issuing these warrants against Israeli citizens when Israel is not a state party to the ICC, the court is inviting state parties, including the United Kingdom, to breach international law by enforcing the arrest warrants.

Macdonald adds:

It would be ironic if, in seeking to advance the cause of international law, the court encourages — indeed requires — its breach.

This is a timely and important contribution to an important subject, and it deserves a considered response from ministers.

The government’s senior law officer was asked by the Commons justice committee on Wednesday whether the ICC arrest warrant would be enforced if Netanyahu visited the UK. Click the ► symbol below to hear why Lord Hermer KC, the attorney general, felt he could not answer the question:

Error of law

“The government’s assertion that the secretary of state has no choice but to transmit an ICC arrest warrant to an appropriate judicial officer is an error of law,” Verdirame and Ekins say today. “The 2001 act clearly does not impose any such duty when enforcing an ICC arrest warrant would be incompatible with state or diplomatic immunity attaching to a person by reason of a connection with a state that is not party to the ICC statute.”

That’s based on a provision in the International Criminal Court Act that allows the secretary of state a discretion not to allow proceedings to continue against an arrested person, which presumably includes not allowing proceedings to begin.

There are three principled and strategic reasons why the government should state its position on the International Criminal Court Act 2001 and customary international law clearly, Verdirame and Ekins now say:

1. This is what a genuine commitment to the rule of law requires. The terms of the ICC act are clear and so is customary international law on the matter. The government cannot responsibly assert that this is a matter to be left to the courts; and if the government were to transfer an ICC arrest warrant to a judicial officer for endorsement, when the warrant relates to a person who enjoys state or diplomatic immunity arising out of a connection to a non-state party to the ICC statute, it would be acting unlawfully.

2. By remaining silent, the UK is encouraging confusion about customary international law. With the issue of immunities under international law being so intensely debated, not least by the International Law Commission, the government’s silence is irresponsible. It may be taken as supporting positions on immunity which are not only wrong as a matter of law but also recklessly put the UK at odds with close allies.

3. The US, our closest ally, has always objected to the position that its officials would have no immunity before the ICC. The ICC’s assault on the immunities of non-state parties has resulted in an all-too-predictable confrontation. It is striking that some in the US are now considering adopting sanctions against the ICC, as the legislation currently before congress would provide. The government should consider it a matter of priority to seek to defuse this confrontation with the US, and other non-state parties, by reiterating the basic principle that their immunities are unaffected by the ICC statute.

Back to the future?

My column for today’s Law Society Gazette looks at the reviews of sentencing and criminal justice being conducted for the Ministry of Justice by David Gauke and Sir Brian Leveson. I conclude that best way in which the government can meet its stated aim of bringing sentencing up to date — while modernising the criminal justice system — involves retuning to ideas of the past.

Leveson’s terms of reference and the address for submissions can be found here. You can read my column by clicking here and then clicking anywhere on the left-hand page.