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Netanyahu can avoid ICC war crime charge by fighting for peace in Middle East

Benjamin Netanyahu restarted ceasefire negotiations with Hamas on Thursday as it emerged the Israeli prime minister could avoid war crimes charges if he were to pursue a wider peace in the region.

At a briefing organized by the Israeli embassy in London on Thursday, Prof Yuval Shany, co-director of the Center for Transnational Legal Studies, at King’s College London, and chair in public international law, at the Hebrew University of Jerusalem, said an “ amnesty” could be declared for Netanyahu and others facing charges if it served the wider interests of justice.

On Monday, the ICC chief prosecutor announced he is seeking arrest warrants against Mr Netanyahu and Yoav Gallant, his defense minister, alongside three Hamas leaders for war crimes and crimes against humanity. The court rarely turns down such requests and the formal warrants are likely to be issued in a matter of days or weeks, said Prof Shany.

Although the Israeli leaders are highly unlikely to surrender themselves to the court at the Hague or be arrested at home, the warrants would have profound implications for the men themselves and Israel diplomatically.

Once issued, they would face arrest and detention if they traveled to or through any of the 124 states within the ICC’s jurisdiction, including the UK.

On Tuesday, Israeli opposition leader Yair Lapid said Mr Netanyahu should pursue the US plan for a regional peace as a means of avoiding the ICC’s charges. This involves a ceasefire in Gaza and “normalisation” of relations with Saudi Arabia as part of a “credible pathway” to a future Palestinian state.

‘Historic peace process’

“In The Hague they will not prosecute a prime minister who is in the middle of an historic peace process,” said Mr Lapid.

According to Prof Shany, there are two possible “escape clauses” and legal precedents for each.

The first is where the ICC prosecutor is persuaded that the “interest of justice” is best served by dropping proceedings.

“This is often alluded to as the peace versus justice dilemma; where you have a situation where the only way to facilitate political transition is to recognize some amnesty,” said Prof Shany.

The UN Security Council itself also has the ability to intervene and suspend proceedings under Article 16 of the Rome Statute if to do so promotes international peace and security.

“If you have a grand deal and the Security Council endorses that deal, part of the deal could imply suspension of proceedings,” he said.

Prof Shany said neither mechanism was “likely” but the Security Council route was more probable and had been used on a number of occasions in the past in regard to investigations relating to peacekeeping forces.

However, all seven security council members, including Russia, have a veto, he added.

Late on Wednesday, Israel’s war cabinet instructed its negotiators to resume indirect talks with Hamas over a ceasefire and hostage releases.

Talks between Hamas and Israel have been on hold after they broke down over Israel’s move into Rafah in southern Gaza two weeks ago.

A video released by the hostage families forum shows Liri Albag, Karina Ariev, Agam Berger, Daniela Gilboa and Naama Levy at the Nahal Oz base on Oct 7

But a partial US arms however, proceedings at the ICC and the recovery of the bodies of five hostages from Gaza have all placed pressure on Mr Netanyahu to progress the talks – or at least be seen to be doing so.

The hosting and missing families forum released a harrowing video on Wednesday showing the moment five Israeli female conscripts were taken hostage by Hamas in Nahal Oz on Oct 7. The video was intended to further pressure Mr Netanyahu and the war cabinet to summarize talks.

“The uproar the video created illustrated the urgency to release these women. Netanyahu asked the negotiation team to come up with a framework for a deal and to go back to negotiating. But in any deal, Hamas must let the women go first,” an official told The Telegraph.

On Friday, the separate International Court of Justice in the Hague will give its judgment on a South African motion which calls for Israel to stop fighting in Gaza.

Israeli officials fear that the court, which did not order Israel to cease combat operations at the initial hearing over charges of genocide in January, may take a tougher stance this time – potentially exposing it to international sanctions.

South Africa cited alleged indiscriminate killing of civilians in Gaza and a humanitarian crisis including famine for the action.

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