By attempting to scuttle the ICC’s efforts to hold Israel accountable, the Biden administration is continuing a bipartisan policy.
BY JOSH RUEBNER FEBRUARY 9, 2021
STATE DEPARTMENT SPOKESPERSON NED PRICE SPEAKING TO REPORTERS ON FEBRUARY 2, 2021. (PHOTO: AP)
Last week, the International Criminal Court (ICC) confirmed that the court has territorial jurisdiction over events which take place in the Israeli-occupied West Bank, including East Jerusalem, and the Gaza Strip.
In January 2019, ICC prosecutor Fatou Bensouda concluded a preliminary examination into Israel’s policies and actions in occupied Palestinian territory and concluded that the criteria were met for proceeding with an investigation.
The next month, Bensouda asked the court for a ruling on the scope of its territorial jurisdiction. The publication of that ruling last week clears the way for Bensouda to investigate and potentially prosecute Israeli military and political officials for war crimes related to Israel’s illegal colonization of Palestinian land in the West Bank and its military operations in the Gaza Strip.
Israel is treating this development seriously. Hundreds of top-ranking Israeli political and military figures are expected to receive intelligence briefings about their potential arrest while abroad.
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And on Sunday, the Foreign Ministry sent an urgent classified cable to its ambassadors asking them to lobby their host governments to issue statements against the ICC ruling and to send a “discreet message to the prosecutor asking her not to move forward with the investigation.”
The Biden administration needed no such prompting. Even before this cable was sent, the State Department released a statement expressing “serious concerns” about the ICC’s ruling.
“We do not believe the Palestinians 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,” said State Department spokesperson Ned Price.
“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,” Price added.
By attempting to scuttle international judicial efforts to hold Israel accountable for its actions, the Biden administration is continuing a bipartisan pattern that stretches back at least to the George W. Bush administration.
Last year, the Trump administration slapped sanctions against individuals taking part in the investigation or prosecution of Israeli or US personnel in the ICC, freezing their US-based property and assets, and denying them visas to the United States. The move came in response to bipartisan, bicameral Dear Colleague letters drafted by AIPAC demanding action.
While Trump’s splenetic sanctions served a symbolic function and played no role in derailing the ICC process, the Obama administration’s vigorous overt and behind-the-scenes diplomatic protection of Israel at the UN did much substantively to prevent the ICC from investigating Israel’s actions.
The Goldstone Report, commissioned by the UN Human Rights Council to investigate Operation Cast Lead, Israel’s attack on the Gaza Strip in December 2008 to January 2009, found that Israel may have committed war crimes and crimes against humanity.
The damning conclusions of the report led the Obama administration to counsel and coordinate with Israel to prevent the report from reaching the ICC. In September 2009, US Ambassador to Israel James Cunnignham warned Israeli Deputy Foreign Minister Danny Ayalon of the “possible difficulties resulting from the Goldstone report and urged that Israel conduct credible investigations of its own, noting that this could help turn aside efforts to engage the ICC.”
The day after the Goldstone Report was released, US Ambassador to the UN Susan Rice met Ayalon on the sidelines of the UN General Assembly and pleaded with him to “help me help you” better “manage” the Goldstone Report by advancing the “peace process.”
Israeli-Palestinian talks would help “deflect and contain” the Goldstone Report, she said, and hinted that the US veto in the Security Council would ensure that the report would not get referred to the ICC.
Also, the Obama administration’s strenuous objections to Palestine’s full membership in the UN were largely motivated by the possibility that Palestine’s participation in international bodies such as the ICC could create an avenue to hold Israel accountable which the United States would be unable to prevent.
Congressional leaders were perturbed by this possibility as well. Former Representative Eliot Engel (D-NY) warned at the time that Palestine’s membership in the UN “would allow them to run around and harass Israeli leaders in the different international courts.” He threatened that “the UN better be careful.”
While the US veto in the Security Council made the rejection of Palestine’s full membership in the UN a foregone conclusion and obviated Engel’s threats, the UN General Assembly voted in 2012 to make Palestine a permanent non-member observer state, paving the way to Palestine’s accession to the Rome Statute of the ICC in 2015.
Prior to the ICC becoming a viable option for holding Israel accountable, the United States also objected to efforts by the International Court of Justice (ICJ) to rule on the legal consequences of Israel’s apartheid wall in the West Bank. In a precedent-setting advisory opinion, the ICJ ruled in 2004 that Israel’s wall and colonization of Palestinian land were illegal, the wall must be dismantled, and compensation paid to Palestinians adversely affected by it.
Despite President George W. Bush famously stating that “it is very difficult to develop confidence between the Palestinians and Israel with a wall snaking through the West Bank,” the Bush administration nevertheless tried to blunt the court proceedings.
In a January 2004 filing with the ICJ, the State Department’s legal adviser referenced the Bush administration’s already flailing “road map” and urged the ICJ “to avoid any steps that would interfere with or make this negotiating process more difficult than it already is.” The State Department also rather directly told the ICJ that “this risk could be avoided altogether if the Court declined to issue an advisory opinion.”
Fortunately, the ICJ ignored this request, instead creating a third party obligation for all states “not to render aid or assistance in maintaining the situation created by such construction” of Israel’s wall. It was the Bush administration’s failure, along with others governments, to act upon this obligation that led to Palestinian civil society’s call for accountability one year later in the form of BDS campaigns.
As long as the United States continues to act in a way that prevents or hinders international judicial accountability for Israel’s crimes, as the Biden administration did last week, it is incumbent upon civil society to continue with its grassroots BDS campaigns to hold Israel accountable as an alternative.