Starmer’s Government has no power to arrest Netanyahu
The decision of the International Criminal Court (ICC) to issue an arrest warrant for the Prime Minister of Israel, Benjamin Netanyahu, poses a test for the UK. Will our Government attempt to arrest Prime Minister Netanyahu? Or will it instead follow the law?
The Government’s failure to make clear whether it intends to attempt to enforce the ICC arrest warrant is irresponsible and unjustifiable. The Government has no power under UK law to enforce the warrant and if it did arrest Prime Minister Netanyahu it would place the UK in breach of international law.
Most commentary on the ICC warrant has taken for granted that the British Government has a legal obligation to arrest anyone who is the subject of an ICC warrant. But in fact, as Lord Verdirame KC and I explain in a new Policy Exchange paper, Prime Minister Netanyahu, as the Head of the Government of Israel, enjoys absolute immunity from arrest under our law and under international law. The ICC arrest warrant does not override this immunity.
The International Criminal Court Act 2001 was enacted, under the leadership of the Labour Government, to give effect to the UK’s obligations under the Rome Statute, which established the ICC. The Act makes provision for an ICC arrest warrant to be enforced within the UK.
Section 23 of the Act addresses the important question of state or diplomatic immunity and its relevance to enforcement of an ICC warrant within the UK. What section 23 does, in the first place, is to limit the application of state or diplomatic immunity, so that it does not block the arrest of a person who has immunity by reason of his association with a state that is party to the Rome Statute.
If the President of France were to be targeted by an ICC arrest warrant, for example, the absolute immunity from arrest that he would otherwise enjoy would be qualified, because France is a party to the Rome Statute. But section 23 then goes on to make quite different provision in relation to a state that is not party to the Rome Statute. In relation to such a state, section 23 provides that state or diplomatic immunity will be qualified if, but only if, the ICC has obtained a waiver from that state. It is also possible for state or diplomatic immunity to be qualified if the United Nations Security Council (UNSC) has made a resolution that overrides immunity.
Israel, like the United States, is not a party to the Rome Statute. The ICC has not obtained a waiver from Israel. There is no UNSC resolution. It follows that section 23 does not qualify state or diplomatic immunity, which means that this immunity prevents enforcement of an arrest warrant under the 2001 Act. Parliament made careful provision in 2001 to distinguish between states that were or were not party to the Rome Statute. It did so in order to reflect the terms of the Rome Statute, which require the ICC not to require a state like the UK to act inconsistently with another state’s immunities unless it has first obtained a waiver from the state.
It is true that the ICC has not seemed very interested in respecting this limit. In the notorious case of The Prosecutor v Al-Bashir (2019), the ICC Appeals Chamber ruled that Jordan had acted wrongly in failing to enforce the arrest warrant that had been issued against the President of Sudan, which is not a party to the Rome Statute. The Court asserted, entirely implausibly, that as a matter of customary international law, a Head of State (or Head of Government) does not have immunity from arrest.
The ICC’s 2019 judgment has been trenchantly criticised and for very good reason. Customary international law is made by states, not by judicial fiat, and the law remains that a Head of Government, like Prime Minister Netanyahu, enjoys absolute immunity from arrest. Parliament in 2001 distinguished between states that were party to the Rome Statute, where this immunity is qualified, and states that were not, where the immunity remains intact. The ICC has attempted to subvert the distinction, but it remains binding in UK law and in international law.
Our new Government has made much of its commitment to the rule of law. Its true fealty may instead be to a misguided understanding of international law, which champions expansive ideological interpretations even where they contradict the clear terms agreed by the UK.
In this case, an Act of Parliament gives force in our law to the UK’s long-standing understanding of international law and thus disables the Government from enforcing the ICC warrant. The only honourable course of action for the Government is to admit that it has no power to arrest the Prime Minister of Israel.
Richard Ekins KC is Head of Policy Exchange’s Judicial Power Project and Professor of Law and Constitutional Government in the University of Oxford