Israel given new hope of blocking ICC arrest warrants

War crimes prosecutor in The Hague is seeking detention of Prime Minister Benjamin Netanyahu

Israeli Prime Minister Benjamin Netanyahu is the subject of an ICC arrest warrant over alleged war crimes in Gaza. AFP

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Israel was on Thursday given new hope of blocking arrest warrants issued by a war crimes court in The Hague against Prime Minister Benjamin Netanyahu and former defence minister Yoav Gallant.

Judges at the International Criminal Court say Israel can challenge its jurisdiction to try the allegations, with Mr Netanyahu's government arguing it has no right to take the case. "The court has no jurisdiction over Israel," Foreign Minister Gideon Saar said after the decision.

ICC prosecutor Karim Khan applied last May for arrest warrants against Mr Netanyahu, Mr Gallant and three senior Hamas figures who are all now dead. He alleges that the Israeli leadership used "starvation as a method of warfare" as part of the offensive in Gaza.

Pro-Israel lawyers have told the court that the country has "sole criminal jurisdiction" over its citizens in Palestine under the terms of the 1990s Oslo Accords. Others say that is irrelevant and that Palestine's membership in the ICC means judges can hear the case relating to Gaza.

ICC judges granted the warrants in November and dismissed Israel's appeal on jurisdiction. However, an appeals chamber ruled on Thursday that this was an "error of law", which "failed to sufficiently address Israel's argument" concerning the court's rules.

Judges at the International Criminal Court will reconsider whether allegations against the Israeli leadership can be heard in The Hague. EPA

The appeal judges "remanded the matter to the pre-trial chamber for a new ruling on the substance of Israel’s challenge to the jurisdiction", a statement from the court said.

"On this topic, there is only one correct answer – the Court has no jurisdiction over Israel. The warrants were issued unlawfully. They are null and void," Mr Saar said.

Israel denies committing war crimes during its offensive in Gaza. Mr Netanyahu has avoided arrest by travelling to friendly countries such as Hungary and the US, which are not members of the court. Debate has raged in other nations such as Britain and Germany, torn between their sympathies with Israel and their commitments to upholding international law.

The ICC was set up in 2002 as the world's first permanent war crimes court, meant to replace one-off tribunals such as those that tried Nazi officials and Serb commanders during the Yugoslav wars. It has only ever convicted 11 people, none of them from western countries or their allies.