British foreign secretary says he has 'obligation' to comply with ICC’s request to arrest Netanyahu

The UK’s Foreign Secretary David Lammy says he has a legal “obligation” to refer the International Criminal Court’s request for arrest warrants to a British court, should Israeli prime minister Benjamin Netanyahu visit the UK.

Speaking before the parliamentary foreign affairs select committee on Wednesday, Lammy said that he had no choice in the matter:

“Under section two of the ICC legislation, there is an obligation on me to transmit to the courts should those named seek to come into our country.

“That doesn’t allow me any discretion,” he continued. “I will issue that to the courts and then the courts will make their determination under our law, recognising that we are signatories for the Statute of Rome.”

Britain’s position now appears to differ from that of its key G7 allies, Germany and France. On Wednesday, the French foreign ministry made it clear that it would not arrest Netanyahu, saying the Israeli prime minister was covered by diplomatic immunity.

Last week, a German government spokesman indicated that the country would also not enforce the ICC decision to approve arrest warrants for Netanyahu and former Israeli Defense Minister Yoav Gallant due to Germany's Nazi past and responsibility for the Holocaust.

Legal opposition to the ICC diktat from within the United Kingdom is growing by the day. 

According to the UK’s shadow attorney general and two of Britain’s leading lawyers, arresting Netanyahu would actually be “unlawful,” the Daily Telegraph reported.

Lord Wolfson KC, the opposition Conservative party’s attorney general, has written to Lord Hermer KC, his Government counterpart, to ask whether he does or does not agree with customary international law to grant immunity to heads of state, the rule France has now decided to follow. 

The UK’s International Criminal Court Act 2001 made clear that an ICC arrest warrant should not be enforced by a domestic court against the Israeli leader, Lord Wolfson reportedly said in his letter. 

“The Government has no power under UK law to enforce the warrant,” wrote Professor Richard Ekins KC in the Telegraph. “And if it did arrest Prime Minister Netanyahu it would put the UK in breach of international law.”

Ekins, who is a professor of law and constitutional government at Oxford University, and Lord Verdirame KC, a specialist in public international law, have co-written a Policy Exchange paper explaining that Netanyahu, as a head of state, “enjoys absolute immunity from arrest under our law and under international law.” 

The lawyers add that “the ICC arrest warrant does not override this immunity,” by any reading of Section 23 of the UK’s International Criminal Court Act, a law which ratified the UK’s membership of the Rome Statute, and therefore the ICC, unlike Israel and the US.

This opinion is backed up by Jonathan Turner KC, chief executive of UK Lawyers for Israel. He told ALL ISRAEL NEWS on Sunday that “the UK should treat the arrest warrants as nullities because the International Criminal Court has no jurisdiction.”

“Furthermore,” Turner added, “ICC arrest warrants do not override diplomatic immunity of nationals of States, such as Israel, which are not parties to the Rome Statute which constituted the ICC.”

The Telegraph reported that Lammy did in fact appear to suggest to the committee that the courts may not enforce the arrest warrant, due to Britain’s obligation to provide immunity.

“UK Foreign Secretary David Lammy is incorrect in saying under British law he has ‘obligation’ to have Netanyahu arrested,” wrote British war veteran, Colonel Richard Kemp, on X. 

“But he does have an obligation to examine the allegations of the ICC & their claimed jurisdiction before deciding whether to execute. He can’t have done so.” 

The ICC judges said last week that there were “reasonable grounds” to believe that Netanyahu, Gallant and Hamas terrorist mastermind, Muhammed Deif, bore “criminal responsibility” for actions during the war between Israel and Hamas.

U.S. President Joe Biden said the ICC arrest warrant was “outrageous.” He added: “Whatever the ICC might imply, there is no equivalence – none – between Israel and Hamas. We will always stand with Israel against threats to its security.”