Former UK director of public prosecutions condemns Israeli PM comments about ICC

Ken Macdonald said Benjamin Netanyahu's accusations against ICC Prosecutor Khan were 'shameful'

ICC Prosecutor Karim Khan in Kyiv last month. AFP

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A leading British lawyer has hit out against Prime Minister Benjamin Netanyahu’s comparison of the International Criminal Court in The Hague to the Nazi courts of the 1930s, while questioning the Prosecutor’s decision to seek a warrant for the Israeli premier’s arrest.

Mr Netanyahu made the comments after ICC Prosecutor Karim Khan issued the request in May, describing Mr Khan as “the leading anti-Semite of modern times”.

Lord Ken Macdonald KC, a former director of public prosecutions in the UK, said Mr Netanyahu’s comments about the court were “recklessly offensive”. He believed they would not have been made had its Prosecutor Karim Khan not been a Muslim.

“I want to make clear how strongly I personally deprecate Prime Minister Netanyahu’s recklessly offensive comparison between the ICC and the Nazi People’s Court of the 1930s, and I equally deprecate his reckless characterisation of Karim Khan,” Lord Macdonald told the Policy Exchange think tank on Wednesday.

“This was an offensive and, in my view, a shameful thing for the Prime Minister to say in the absence of evidence and perhaps wouldn't have been made had Mr Karim not been a Muslim.” .

Mr Khan has faced enormous pressure over his decision to seek the arrest warrants of Mr Netanyahu, Israeli Defence Minister Yoav Gallant, alongside three Hamas leaders. This month, Mr Khan hit out against “threat and harassment” after a group of British lawyers advocating for Israel filed a complaint about him to the Bar Standards Board, a British regulatory body.

The UK's former Conservative government sought to derail the proceedings by filing an intervention, which the new Labour government then dropped in July. The court is reviewing Mr Khan’s applications, as well as dozens of interventions from member states and NGOs that came in support or against them.

One of the main arguments against issuing arrest warrants for Israeli leaders is based on a founding principle of the ICC, known as complimentarity. According to this, the court should not step in unless a state is “unwilling of unable to genuinely carry out” a prosecution – and critics say that Israel’s “robust” and “independent” courts are capable of investigating the Israeli officials in question.

Lord Macdonald agreed with this criticism, describing Israeli courts and the Supreme Court as “famously independent of the executive".

“As we've seen recently, that independence and its constitutional underpinnings have the most enormous public support in Israel. So to my part, I would be very far from concluding the Israeli state is unwilling to investigate allegations such as these,” he said.

He also questioned Mr Khan’s use of an expert panel to guide his decision making on the case. While it was common for prosecutors to seek advice from other lawyers, Mr Khan had been “handing over the power to make the decisive call to these outside experts”.

“Imagine Karim Khan's position if he hadn't followed their conclusion, trying to justify publicly that he'd sent this work to such an eminent group, but that now that he'd seen their opinion, he didn't agree with it, there would have been absolute uproar,” Lord Macdonald said.