The war against Israel in the courts is a danger to Britain’s Armed Forces, too

Sir Michael Ellis
·5-min read
Israeli Defence Minister Yoav Gallant and Prime Minister Benjamin Netanyahu
Israeli Defence Minister Yoav Gallant and Prime Minister Benjamin Netanyahu - ABIR SULTAN/AFP

The Chief Prosecutor of the International Criminal Court, Karim Khan KC, announced last week that he is seeking arrest warrants for Israel’s prime minister and defence minister. This is an extraordinary moment – potentially the first ever arrest warrant to be issued against the leader of a democratic Western nation.

The charge of crimes against humanity is exceptionally grave. It is one which the ICC has failed to apply even to Vladimir Putin (he faces the “lesser” charge of war crimes) despite Putin’s appalling invasion of Ukraine and the well-documented butchery committed by his brutal armed forces.

At precisely the same time Mr Khan made his announcement regarding Israel, he also said he intends to secure warrants for the leaders of the Hamas terrorist group. It is appalling that a moral equivalence has been drawn between a democratic nation fighting a defensive war against terrorists openly avowed to destroy it and a proscribed terrorist organisation. World leaders were quick in their condemnation of this manifestly unhelpful decision and the UK was right to join the criticism.

In the perverse otherworld view of the ICC, it is Israel’s leaders who are seeking “extermination”, “intentionally directing attacks against a civilian population” and “starving” civilians. No impartial observer could reasonably conclude that Israeli leaders are committing such heinous crimes. On the contrary, Israel has made extensive efforts to facilitate humanitarian aid to Gaza’s civilian population, totalling more than 550,000 tonnes since October 7. It has also repaired water pipes, power lines and humanitarian aid crossings which were deliberately destroyed by Hamas on that dark day.

What other country is expected to support and sustain those trying to destroy it? But Israel rightly does all this despite the knowledge that Hamas misappropriates much of this aid and despite the presence of terrorists within UN aid facilities in Gaza.

Israel’s military has made exhaustive efforts to avoid civilian casualties. The UN’s numbers indicate that the ratio of civilians to combatants killed in Gaza is close to 1:1 – almost unprecedented in urban warfare, far lower than the international average and lower than US and British operations in Afghanistan and Iraq. Hamas’s deliberate strategy of embedding itself within urban areas means that civilians will be killed and civilian infrastructure destroyed.

Many women and children have tragically been caught up in the fighting, though it is worth noting that the UN has now halved the number of identified civilians killed in Gaza. Of course, Hamas’s casualty figures were always fictional; a terror group seeking to win a PR war was inevitably going to propagandise casualty figures. The UK Statistics Authority has warned people in public life to be cautious.

The lower rate of civilian casualties that Professor John Spencer from West Point Academy has referred to is because protection of innocent life is at the forefront of the Israel Defence Forces’ operating guidelines. Independent legal advisors within the IDF issue advice on the legality of every airstrike. Israel routinely aborts strikes when it is identified that civilians are present and continues to make every effort possible to evacuate Gaza’s civilian population from combat areas.

Make no mistake, this arrest warrant is an accelerant to the bloodshed in Israel and Gaza. Hamas will be emboldened. Hostage negotiations will become more complicated. Fighting will intensify. The hope for a two-state solution is pushed further back as it is likely to entrench the Palestinian Authority’s unwillingness to engage in direct peace talks. The ICC’s move also represents a direct attack on the judicial independence of a democratic ally. The foundation stone of the ICC’s existence is the principle of complementarity. The ICC exists to intervene only in the presence of a legal vacuum where a state is unwilling or unable to conduct legal investigations.

Israel, however, is a country with an internationally respected Supreme Court, which vociferously upholds the rule of law and has a long history of deciding cases against the government, the military and even prime ministers – as it is currently in the process of doing. Israel’s judiciary is also actively pursuing investigations into cases of suspected misconduct by Israeli soldiers, as befitting a nation upholding international law. Not only does the ICC lack jurisdiction because Israel is not a party to the Rome Statute and Palestine is not a sovereign nation, but Israel has the means and motivation to uphold the law. The ICC is therefore prohibited by its Founding Treaty from taking this step – something its pre-trial chamber must now decide.

It would be foolish, however, to think that the reverberations of this decision will not spread beyond the region. The ICC’s move is a grotesque overreach. It will have profound implications for the UK and other democratic nations in an increasingly dangerous world. Lawfare and the politicisation of armed conflict puts our own Armed Forces at great risk. An attempt by the ICC to pursue the US and the UK over the war in Afghanistan elicited strong rebuke from Western nations, but this is now the direction of travel.

Terrorist groups and their sympathisers – in tandem with disruptive state actors – are exploiting the very international bodies set up to counter them. South Africa’s vexatious case at the International Court of Justice is another alarming example. The ICJ’s latest order relating to Israel and its military operation in Rafah has been widely misinterpreted given how heavily conditioned it is but that is beside the point. South Africa is exploiting an international body with its deeply politicised case. Frankly, it defies logic since Rafah is the location of Hamas’s four remaining battalions and where dozens of Israeli hostages are still being cruelly detained.

Meanwhile, the ICC move is illegitimate, immoral and outwith its competence. It violates the Court’s charter and integrity. Sadly, we in the West will all be dealing with its consequences for years to come.

Sir Michael Ellis is a former attorney general

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