U.S. Objects to ICC Probe, 'Opposes Actions That Seek to Target Israel Unfairly'

U.S. State Department says that the Palestinians are not a sovereign state and are not qualified for ICC membership after court decides to probe alleged Israeli and Hamas war crimes

Ben Samuels
Judy Maltz
Noa Landau
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ICC Chief Prosecutor Fatou Bensouda during the trial of Malian Islamist militant Al-Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, The Hague, Netherlands, July 8, 2019.
ICC Chief Prosecutor Fatou Bensouda during a trial at The Hague, July 8, 2019.Credit: Eva Plevier / Reuters
Ben Samuels
Judy Maltz
Noa Landau

WASHINGTON - The U.S. Department of State said Friday night that it objects to the International Criminal Court in The Hague's decision earlier that day to open legal proceedings against Israel and Hamas on suspicion of committing war crimes in the West Bank, East Jerusalem and the Gaza Strip.

LISTEN: Protests, pandemics and Netanyahu's day of reckoningCredit: Haaretz

State Department Spokesperson Ned Price tweeted that "The United States objects to today’s [ICC] decision regarding the Palestinian situation. Israel is not a State Party to the Rome Statute," adding that "We will continue to uphold President Biden’s strong commitment to Israel and its security, including opposing actions that seek to target Israel unfairly."

A State Department press release said that the court “issued a decision claiming jurisdiction in the West Bank, East Jerusalem, and Gaza, while expressly recognizing the serious legal and factual questions that surround its ability to do so.”

The statement reiterated the department’s position, as expressed in 2015 when “the Palestinians purported to join the Rome Statute,” that it does not believe the Palestinian territories “qualify as a sovereign state, and therefore are not qualified to obtain membership as a state, or participate as a state in international organizations, entities, or conferences, including the ICC.”

It added, “We have serious concerns about the ICC’s attempts to exercise its jurisdiction over Israeli personnel. The United States has always taken the position that the court’s jurisdiction should be reserved for countries that consent to it, or that are referred by the UN Security Council.”

The court approved on Friday evening Prosecutor Fatou Bensouda’s request to open the legal proceedings after accepting the findings of Bensouda’s preliminary investigation from December of 2019, which found that there is a basis for investigating the matter further. It ruled that the court does have jurisdiction in the Palestinian territories, rejecting Israel's argument that it lacks such authority. The ruling passed with a 2-1 vote, with Presiding Judge Peter Kovacs of Hungary issuing a dissenting opinion.

The court noted that it is “not constitutionally competent to determine matters of statehood that would bind the international community,” explaining that its ruling on jurisdiction is “neither adjudicating a border dispute… nor prejudging the question of any future borders.”

The decision was harshly criticized by Prime Minister Benjamin Netanyahu: "Today, the court proved once again that it is a political body and not a judicial institution," he said.

"The court ignores real war crimes, and instead persecutes Israel, a country with a stable democratic regime that holds up the rule of law and is not a member of the court. With this decision, the court harmed democratic nations' right to defend themselves from terrorism and played into the hands of elements that undermine efforts to expand the circle of peace." Netanyahu added, "We will continue to protect our citizens and our soldiers in every way from legal persecution."

The prosecutor announced in late 2019, after issuing a number of warnings, that there was a basis for launching a probe against Israel and Hamas on suspicion of war crimes in the territories since 2014, in the wake of a petition by the Palestinian Authority.

Smoke and fire rise over Gaza City during the 2014 war with Israel.Credit: Hatem Moussa,AP

Bensouda initially asked of the court to rule on the question of its territorial jurisdiction in the West Bank and Gaza. She did so because Israel argues that only countries with sovereignty can give the court criminal jurisdiction and that the matter is a political dispute.

Bensouda wrote in 2019 that "Based on the available information, there is a reason to believe that war crimes were committed in the context of the 2014 hostilities in Gaza," referring to Operation Protective Edge. She also wrote that available information shows that "The Israel Defense Forces intentionally launched disproportionate attacks in relation to at least three incidents which the ICC has focused [on],” which intentionally lead to killings and a significant number of injuries.

"There is a reasonable basis to believe that… members of the Israeli authorities have committed war crimes by transferring Israeli civilians into the West Bank," Bensouda said, adding that "Despite the clear and enduring calls that Israel cease activities in the Palestinian Territories [that have been] deemed contrary to international law, there is no indication that they will end. To the contrary, there are indications that they may not only continue, but that Israel may seek to annex these territories."

She then cited Netanyahu's campaign promise in August and September 2019 to annex the Jordan Valley should he win reelection. Annexation was effectively taken off the table as part of the Abraham Accords normalization deal between Israel and the United Arab Emirates.

In relation to Gaza, she wrote: “The Prosecution further considers that the scope of the situation could encompass an investigation into crimes allegedly committed in relation to the use by members of the IDF of non-lethal and lethal means against persons participating in demonstrations beginning in March 2018 near the border fence between the Gaza Strip and Israel, which reportedly resulted in the killing of over 200 individuals, including over 40 children, and the wounding of thousands of others.”

The prosecutor added that there is "A reasonable basis to believe that members of Hamas and Palestinian armed groups committed the war crimes” during Operation Protective Edge, including “Intentionally directing attacks against civilians and civilian objects, using protected persons as shields” and torture.

In July, U.S. President Donald Trump, in coordination with Israel, ordered the levying of sanctions on individuals and groups involved in the ICC investigation of suspected U.S. war crimes in Afghanistan. Senior administration officials said a number of times that they would also see the decision to investigate Israel as a “political” decision that may provoke a further American response. The U.S. decision triggered a wave of opposition by dozens of countries, which this week affirmed their support for the international court.

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