Could David Cameron be prosecuted for threatening the ICC?

Middle East Eye

a day ago

David Cameron, the former British foreign secretary, may be liable for prosecution under international law and within the UK for his attempts to obstruct the work of the International Criminal Court (ICC), experts have said.
Middle East Eye revealed on Monday that Cameron privately threatened Karim Khan, the British chief prosecutor at the ICC, in April 2024 to defund and withdraw from the ICC if it issued arrest warrants for Israeli leaders.
"A threat against the ICC, direct or indirect, is an obstruction of justice," Francesca Albanese, the UN's special rapporteur on Palestine, told MEE's live show on Tuesday.
"It's incredibly serious that someone in a position of power might have had the audacity to do that."
And Professor Sergey Vasiliev of the Open University of the Netherlands reacted: "If the reports are confirmed, David Cameron did cross the legal line when he threatened the Prosector with all kinds of consequences for applying for the warrants.
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"This is a serious matter that shows Cameron's utter lack of respect for the ICC's judicial and prosecutorial independence."
What did David Cameron do?
Cameron, then foreign secretary in Rishi Sunak's Conservative government, made the threat on 23 April 2024 during a heated phone call with Khan.
Cameron told Khan that the UK would "defund the court and withdraw from the Rome Statute" if the ICC issued warrants for Israeli leaders.
At the time, Khan and his team of lawyers were preparing arrest warrants for Israeli Prime Minister Benjamin Netanyahu and his then-defence minister, Yoav Gallant, as well as for Hamas leaders Yahya Sinwar, Ismail Haniyeh and Mohammed Deif. Khan's office applied for warrants on 20 May, less than a month after the phone call.
'Per the reported dialogue, David Cameron clearly seeks to pressure the ICC Prosecutor's decision regarding whether to pursue warrants for Israeli officials'
- Professor Tom Dannenbaum
Six months later, on 21 November, the warrants were approved by a panel of judges, officially charging Netanyahu and Gallant with war crimes and crimes against humanity committed in Gaza since October 2023.
MEE revealed details of the call based on information from several sources, including former staff in Khan's office familiar with the conversation and who have seen the minutes of the meeting.
Cameron, a former British prime minister who was appointed foreign secretary by Sunak in November 2023, told Khan that applying for warrants for Netanyahu and Gallant would be "like dropping a hydrogen bomb".
He said Khan was "on the brink of making a huge mistake" and that "the world is not ready for this".
The report has drawn condemnation from British MPs who called for an investigation into Cameron's actions.
Cameron has not responded to multiple requests for comment.
Approached by MEE for a response to the exchange with Cameron, Khan said on Monday: "I have no comment to make at this time."
What's the background to David Cameron's demands?
The Conservative government was accused last year of being behind the delay in the ICC's issuance of arrest warrants against Israeli and Hamas officials, after filing a request with the pre-trial chamber to challenge the court's jurisdiction on Israeli nationals.
The request prompted dozens of submissions from other states, but was later dropped by the Labour government, which came to power in July 2024.
The revelations about Cameron came after the administration of US President Donald Trump said last week that it would sanction four ICC judges for investigations into the US and its ally Israel.
In February, Khan was the first ICC official to be the target of US sanctions, carried out under an executive order issued shortly after Trump took office.
The revelations also follow Khan's decision to take a leave of absence pending a UN-led investigation into alleged sexual misconduct, an accusation denied by his lawyers.
What are the legal risks for Cameron?
The ICC, established by the Rome Statute in 2002, is the only permanent international court that prosecutes individuals for war crimes, crimes against humanity and genocide. It has 125 signatories, including the UK and all EU countries, though Hungary has officially begun the withdrawal process.
Leading international law experts have told Middle East Eye that Cameron's behaviour is an attack on judicial independence, and is prohibited under the Rome Statute and British law as an obstruction of justice.
Professor Tom Dannenbaum of the Fletcher School of Law and Diplomacy said that, in general, the UK is entitled to withdraw from the ICC, and, upon exit, would then cease its financial contribution.
Exclusive: David Cameron threatened to withdraw UK from ICC over Israel war crimes probe Read More »
Additionally, as a state party to the Rome Statute, the UK can advocate budget cuts within the Assembly of States Parties, the court's governing body, without having to pull out.
But, he said, the issue here arises before any such withdrawal or defunding.
"The problem here is David Cameron's reported threat to condition possible UK action or inaction in those respects on the decisions of the ICC Prosecutor regarding whom to investigate and prosecute," said Dannenbaum.
"That threat is deeply concerning. The rule of law depends on prosecutors' insulation from political pressure in their identification of individuals for investigation and prosecution,. That is true at the ICC just as it is in domestic systems of criminal justice."
Under what law could Cameron be charged?
The four experts MEE spoke to said the ICC could charge Cameron, given the nature of the phone call with Khan, based on Article 70 of the Rome Statute, which prohibits offences against the administration of justice. These include "impeding, intimidating or corruptly influencing an official of the Court for the purpose of forcing or persuading the official not to perform, or to perform improperly, his or her duties; and retaliating against an official of the Court on account of duties performed by that or another official."
Dannenbaum argued that Cameron's threat to withdraw the UK from the ICC and defund the court may amount to "corruptly influencing an official of the Court for the purpose of … persuading the official not to perform, or to perform improperly, his or her duties".
Although this particular provision has never been litigated before the ICC, Dannenbaum said, the relevant offence of "corruptly influencing a witness" has.
"That case law indicates that 'corruptly influencing' includes 'pressuring' the protected person in a way 'capable of influencing the nature' of their contribution and thereby 'compromising' it, with the term 'corruptly' signifying the aim of 'contaminating' the person's contribution," Dannenbaum explained.
"Per the reported dialogue, David Cameron clearly seeks to pressure the ICC Prosecutor's decision regarding whether to pursue warrants for Israeli officials. It is possible that this pressure would be understood to have been designed to 'contaminate' the Prosecutor's decision, although that concept may be less clear here than it is in the context of witness testimony.
"Considerations regarding state withdrawal and budget cuts are plausibly 'capable' of influencing such decisions, albeit that the Prosecutor appears to have resisted the pressure in the case at hand."
Given the above points, Dannenbaum concluded that Cameron's conduct may be consistent with the prohibited offences against the administration of justice listed under Article 70. The court has jurisdiction over Article 70 offences, irrespective of the nationality or location of the accused.
What penalty could Cameron face?
If successfully charged, Cameron is likely to face an arrest warrant by the court and, if convicted, could be sentenced to up to five years of imprisonment in The Hague or a fine.
However, given the vulnerability of the ICC, with Trump's sanctions and Khan's leave of absence, Vasiliev suggested that Cameron's prosecution in The Hague would be "rather unlikely.
"The ICC could in principle open the investigation into these allegations under Article 70 or request the UK to do so (or the UK could do so on its own). Whether this will in fact be done, is a big question."
Could Cameron be prosecuted in the UK?
Toby Cadman, a British barrister and international law expert, said that if the allegations are substantiated by clear evidence, then Cameron could be investigated at an international and domestic level "provided there's political will".
Francesca Albanese: David Cameron could be criminally liable for threatening ICC Read More »
In the UK, an investigation could be opened for the common law offence of obstruction or perverting the course of justice or the common law offence of misconduct in public offence, he said.
An investigation in the UK can be carried out in accordance with Section 54 of the ICC Act 2001, which is based on Article 70 of the Rome Statute. The attorney general's consent would be required for any prosecution to go ahead.
"It is quite clear that the allegation is serious and if the UK is committed to maintaining a system based on the rule of law with full respect for the state's international treaty obligations it should open an investigation and if the evidence supports it, bring charges," Cadman told MEE.
Could Cameron be prosecuted outside the UK?
But Vasiliev suggested that Cameron's prosecution before the courts of other states would be precluded by his functional immunity - the protection granted to senior officials if an alleged offence was committed during their official duties.
"Cameron has a functional immunity for that act as he uttered those threats in the exercise of his official functions, and there is no exception to such immunity applicable in foreign courts for offences against the integrity of judicial system," Vasiliev argued.
"The prosecution authorities of other states parties therefore will not eagerly pursue such a case."