DEAR EDITOR
Normally, when a highly controversial political decision is taken, the decision-maker is expected to be able to justify the decision in political terms, and a debate then ensues on the merits of the decision taken. Political decisions, after all, are decisions on issues in respect of which people reasonably disagree.
Where that constructive force of politics often loses its way, and trust in politicians is often eroded, is where – against all the evidence to the contrary – it is pretended that the decision was not political at all. May I suggest that this is exactly what happened last week, when the new Labour Government announced it will not proceed with its Tory predecessors’ proposed legal objection to the ICC Prosecutor’s request for arrest warrants against Benjamin Netanyahu and Yoav Gallant.
The thrust of the proposed UK objection was about jurisdiction – in essence, whether the ICC was able to rule on this case “in circumstances where [under the Oslo Accords] Palestine cannot exercise criminal jurisdiction over Israeli nationals”. This was set out in the 15 pages of well-reasoned legal arguments from the previous UK Government. That government having requested leave from the ICC to submit these observations under Rule 103 of the ICC’s Rule of Evidence and Procedure, the only thing left for the new UK Government to do was to finalise them and press send.
The fact that the new UK Government then decided not to do so could only have been for one of two reasons – legal, or political.
We know that legal reasons weren’t behind the decision. Nothing has come out to suggest that the new Government reconsidered its legal advice and judged that anything in those 15 pages was wrong in purely legal terms. So that leaves just one remaining possibility. And in my view, this is exactly why the Jewish Leadership Council and the Board of Deputies very quickly observed that, short of any other reasons being offered up, this decision was in fact a “significant shift in … [and] reversal of long-term UK foreign policy”.
And yet strangely, there has been a very enthusiastic effort to downplay the claim that this was to do with politics at all. The UK Government said that the matter was simply one “for the court to decide”, that it believes strongly in the separation of powers and the rule of law”, and that “the courts have already received a number of submissions on either side, so they are well seized of the arguments”. Several journalists repeated this line – that it was simply a “belief that international courts should be free to investigate allegations against our allies [who] should be subject to the same legal processes as others”, and “a sign the UK Government recognises the Court’s power to make legal decisions”.
This is unmitigated nonsense. The reason the UK Government is able to submit these observations in the first place is because it is its legal *right* to do so – a right granted directly by the ICC itself in Rule 103. And the right exists so that the ICC has the chance, through third-party interveners, to encounter legal arguments it might not have considered from the parties themselves in their oral or written submissions. Are all of those interveners undermining their belief in the ICC, its independence and the international rule of law by exercising the very right they have been given by that framework? The answer is obvious.
What is so odd about all this is that there is absolutely nothing wrong in and of itself with fronting up and saying this was a political decision, knowing that many will (rightly, in my view) strongly and sincerely disagree with you. That is politics. But unfortunately, it is now all too common for our elected politicians to shy away from justifying in political terms the decisions they occasionally must make on the most controversial and fraught questions of our time, and to confront the political cost. Far easier now, it seems, to pretend it was never political at all.
So, yes, the decision is nakedly political. Yes, it is a significant shift in the UK’s long-term foreign policy, away from Israel – the BoD and JLC were entirely correct to point that out. And it insults our intelligence to suggest that it was ever about anything else.
Naji
London
