The International Criminal Court has zero credibility left. It cannot survive

The International Criminal Court (ICC) lost any vestige of legitimacy it may have had by issuing its recent arrest warrant for Israeli Prime Minister Benjamin Netanyahu. As France and other countries have since made clear, the arrest warrant is improper, extra-jurisdictional and illegitimate. The warrant is not only entirely without merit on the evidence, but the very issuance of it was an abasement of the court itself.

The ICC cannot survive this episode. It is a ship that has deliberately set a course for the rocks and it is now holed below the waterline. It should be allowed to sink without a trace.

It looks like the Trump administration will deliver a fatal blow to the ICC, and in my view they would be right to do so. Rather like the League of Nations after World War One, there is no point funding an institution that doesn’t work.

As a former Attorney General I take the view that there are several reasons for this. First, any country which is not a member of the court is simply not bound by it. Israel and the US have never ratified it, ironically largely because they feared bias. But by issuing this warrant the court has chosen to ignore that inconvenient fact as far as Israel is concerned and has usurped authority to itself.

It’s like being forced to follow the dress code of a nightclub when you have no intention of going inside. What next? The UK being bound by a treaty it too hasn’t signed? Perhaps someone will next want to compel the UK to adhere to the North America Free Trade Agreement even though we haven’t signed it.

But let’s set aside that little inconvenient truth, after all the ICC did. The second problem for the ICC is that even a country which has signed up to the Court can only be pursued by the ICC if that country is unable or unwilling to deal with any credible allegations itself.

Israel has a robust and fair legal system, their courts regularly strike down their own government’s decisions. An Arab Israeli Supreme Court judge has even sat in judgment on the country’s Jewish prime minister. But the ICC have refused to accept this inconvenient truth as well.

There is then a third problem the ICC has ignored. It is merely the small point about a Head of Government like Prime Minister Netanyahu having diplomatic immunity. It’s a principle that has been in existence in British statute law since 1709 but the concept was known in antiquity; Herodotus wrote of it. But the ICC just ignores that too.

There are of course plenty of people who are unconvinced with these ‘legal process’ arguments, (although I always found at the criminal bar that ‘process’ arguments were universally admired by those who benefited). The problem that even fierce partisans cannot surmount is that the ICC simply doesn’t have evidence to justify its action. Even if one chooses to ignore the jurisdiction issues surely the evidence has to be considered. In the case of the Netanyahu warrant however, the ICC’s ‘analysis’ wouldn’t stand up to the scrutiny of a sixth form student on their lunch break.

This is because the truth is that the Israelis have conducted their defensive military actions to a precision that far exceeds anything seen before, as Professor John Spencer, Chair of Urban Warfare Studies at West Point Military Academy has pointed out. Their actions have been of greater precision than even the UK and US in recent conflicts.

Issuing an arrest warrant against Netanyahu without jurisdiction or evidence has defiled the court. There are many individuals, in Iran and Syria for example, who deserve the attentions of international law, but a democratically-elected Israeli Prime Minister defending his country from consistent attack from multiple quarters is not one of them.

The incumbent Biden Administration in the US and the incoming Trump administration, despite their considerable differences, are both outraged. As well they might be- because US leaders could be next. Other Western leaders are equally appalled by this action. No doubt they recognise it as a form of “lawfare”, which is what it is.

This Labour government meanwhile are happy to blindly follow anything any international body tells them. But they need to start to examine these international bodies and their operations much more closely.

In the UK we are rightly used to accepting without question the orders of our own courts, because we have known for centuries that we can trust our legal process and our judiciary.

The same does not invariably apply to international “courts”. Labour blindly kow-towing to an advisory body to hand over sovereignty of the Chagos Islands to Mauritius is another example of this absurdity. Many of these international bodies fall well below acceptable standards in their operations, judgments and competence.

Nowadays we hear a great deal about The Rule of Law. But the Rule of Law doesn’t mean blindly following the edicts of bodies who may be possessed of as much legal standing as a Gilbert and Sullivan operetta.

And anyway, the rule of law works both ways. Yes, countries are expected to adhere to basic principles of fairness and justice, but so are the institutions that seek to administer that justice. If those institutions are not going to follow their own rules and procedures then they cannot expect to be allowed to hold others to account.

Sir Michael Ellis served as Attorney General for England and Wales