Congress enables Israeli impunity at ICC
Palestinian farmers from Kafr Laqif village protest against Israel’s
expropriation of their land in the occupied West Bank to build
settlements, December 2019. Colonizing occupied territory is a war
crime.
ActiveStills
-15 May 2020
Earlier this week, a bipartisan grouping of 69 United States senators sent Secretary of State Mike Pompeo a letter encouraging
him to continue his “vigorous support of Israel as it faces the growing
possibility of investigations and prosecutions by the International
Criminal Court.”
The letter was spearheaded by senators Rob Portman, a Republican from Ohio, and Ben Cardin, a Democrat from Maryland.
This duo also teamed up to introduce the blatantly unconstitutional Israel Anti-Boycott Act during the previous Congress.
That legislation, which was defeated by a combination of Palestine
solidarity groups and the American Civil Liberties Union, proposed criminalizing individuals acting
on behalf of nonprofit organizations or companies to further a boycott
for Palestinian rights in coordination with an international
organization, such as the UN or European Union.
Metadata on the PDF copy of
the letter linked from Portman’s website lists the document’s “author”
as Ester Kurz, the legislative director of the powerful Israel lobby
group AIPAC.
AIPAC backed a similar letter in the House, which also criticized the ICC for investigating US war crimes in Afghanistan.
Duplicitous claims
With their latest letter, Portman and Cardin have collaborated again to
shield Israel from the consequences of its illegal actions.
The senators correctly note that the International Criminal Court’s
“actions currently underway could lead to the prosecution of Israeli
nationals,” but conclude incorrectly that “the ICC does not enjoy
legitimate jurisdiction in this case.”
As the senators state later in their letter, ICC chief prosecutor Fatou Bensouda requested in
December 2019 a ruling from the ICC’s pre-trial chamber confirming the
extent of the court’s jurisdiction over cases emanating from the
Israeli-occupied West Bank and Gaza Strip.
There is good reason to believe that the ICC does have jurisdiction over
Israeli actions in the West Bank, including East Jerusalem, and the
Gaza Strip.
In November 2012, the UN General Assembly voted to
confer non-member observer status on the State of Palestine, enabling
it to join international bodies and sign international conventions.
In January 2015, Palestine acceded to
the Rome Statute, thereby becoming a member of the ICC and accepting
its jurisdiction, and depositing a complaint with the court against
Israeli actions in the West Bank and Gaza Strip.
The senators’ claim that the ICC does not have “legitimate jurisdiction”
over Israeli actions against Palestinians is duplicitous.
One of the primary objections of the Obama administration and pro-Israel
members of Congress to Palestine becoming either a full member or
observer state at the UN was precisely this scenario: Palestine joining
the ICC and holding Israel accountable in a venue beyond US reach.
In the 2016 consolidated appropriations bill,
passed in December 2015, Congress itself recognized the implications of
Palestinians seeking to hold Israel accountable in the ICC and
attempted to leverage US aid to kill any such investigation.
The bill would cut off all US economic aid to the Palestinian Authority
should “the Palestinians initiate an International Criminal Court (ICC)
judicially authorized investigation, or actively support such an
investigation, that subjects Israeli nationals to an investigation for
alleged crimes against Palestinians.”
In addition, the senators’ letter is replete with spurious legal terms
and mendacious claims against the ICC, all of which are designed to
bolster Israeli impunity.
They repeatedly refer to occupied Palestinian territores as “disputed territories,” a legally baseless term of Israeli hasbara –
propaganda – used to obfuscate Israel’s Fourth Geneva Conventions
responsibilities toward Palestinians under military occupation.
The senators also falsely characterize the ICC investigation as a
“dangerous politicization of the court” which “unfairly targets Israel.”
They further claim, contrary to all evidence,
that Israel has a “robust judicial system willing and able to prosecute
war crimes of its personnel.” All of these assertions recycle old
canards against any effort to hold Israel accountable for its actions.
The senators also seek to downplay the gravity of the charges leveled
against Israel in the ICC complaint. They state that the ICC is
relegated to the “prosecution of the most serious international crimes,”
implicitly discounting Palestinian claims.
However, the Rome Statute,
defines as a war crime, “the transfer, directly or indirectly, by the
Occupying Power of parts of its own civilian population into the
territory it occupies, or the deportation or transfer of all or parts of
the population of the occupied territory within or outside this
territory.”
Israel’s colonization of Palestinian land and dispossession of
Palestinians in the West Bank is a crucial component of Palestine’s ICC
complaint, and war crimes are undoubtedly among “the most serious
international crimes.”
Grandstanding
Most embarrassingly, the senators demonstrate their ignorance of
international law by confusing ICC legal jurisdiction over occupied
Palestinian territories with potential future bilateral negotiations
between Israel and the Palestine Liberation Organization to determine
borders in a two-state resolution.
They argue that ICC jurisdiction in this case would constitute a
“political judgment” which would “determine whether the relevant
territories are part of the State of Israel or occupied Palestinian
lands.”
However, the Palestinian complaint and ICC investigation have nothing
whatsoever to do with the delineation of borders; rather, they seek to
determine Israel’s potential war crimes within areas firmly fixed under
international law and UN resolutions as occupied territory.
It is unclear exactly what the senators hope to achieve with this letter
other than grandstanding, since the United States is already implacably
opposed to the ICC holding Israel accountable.
Perhaps by signing this letter, the senators are virtue signaling their
intentions to pursue even more punitive sanctions against Palestinians
should the ICC investigation go to trial.
