The Palestinians have for years tried to convince the International Criminal Court (ICC) to charge Israeli soldiers and politicians with war crimes. The approach to the ICC is part of the desperate effort by Palestinians to find some international body that will force Israel to capitulate to their demands. Nothing the ICC can do, however, will bring the Palestinians one iota closer to statehood. Nevertheless, they cheered the court’s decision on February 5, 2021, claiming jurisdiction in the West Bank, East Jerusalem, and Gaza (Isabel Kershner, “I.C.C. Rules It Has Jurisdiction to Examine Possible Israel War Crimes,” New York Times, February 5, 2021).
Seven states were invited to submit opinions to the court. All seven asserted the “State of Palestine” does not presently satisfy the conditions to be considered a state because the Palestinian Authority (PA) does not control the territories.
The ICC judges voted 2-1 to accept the premise that since the PA joined the Rome Statute, it should be treated as a state. In dissent, Justice Péter Kovács, of Hungary rejected this argument and said the majority’s opinion has “no legal basis in the Rome Statute, and even less so, in public international law” (“The International Criminal Court and the Israeli-Palestinian Conflict,” BICOM, (February 10, 2021).
When the decision was announced, the State Department issued a statement:
As we made clear when the Palestinians purported to join the Rome Statute in 2015, 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.
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.
Similarly, Israel rejected the decision because no sovereign Palestinian state exists. Other countries, including Germany, Hungary, Australia, the Czech Republic, Austria, Brazil, Uganda and Canada also expressed opposition to an ICC probe of Israel (Lahav Harkov, “Germany, Hungary join states opposing ICC probe of Israel,” Jerusalem Post, February 9, 2021). Israel has no right of appeal because it is not a member of the court.
The United States and Israel have consistently said they will not recognize the jurisdiction of the court over their citizens. In 2002, Israel and the United States signed an agreement which said that they would not extradite, transfer or surrender any citizens of the other state to the Court, or to a third country which may surrender them to the Court.
In June 2020, the Trump administration announced sanctions against the ICC and reiterated long-standing policy that Americans are not subject to its jurisdiction. The principal motivation for the decision was anger over the court’s investigation of alleged U.S. war crimes in Afghanistan; however, Secretary of State Mike Pompeo reportedly conferred in advance with Israeli Prime Minister Benjamin Netanyahu about Israel’s concerns about the ICC during a trip to Jerusalem (Barak Ravid, “Trump administration coordinated ICC sanctions with Israel,” Axios, June 12, 2020).
In announcing the sanctions Pompeo said the United States is “also gravely concerned about the threat the court poses to Israel. The ICC is already threatening Israel with an investigation of so-called war crimes committed by its forces and personnel in the West Bank and in the Gaza Strip. Given Israel’s robust civilian and military legal system and strong track record of investigating and prosecuting wrongdoing by military personnel, it’s clear the ICC is only putting Israel in its crosshairs for nakedly political purposes. It’s a mockery of justice” (“Secretary Michael R. Pompeo At a Press Availability with Secretary of Defense Mark Esper, Attorney General William Barr, and National Security Advisor Robert O’Brien,” U.S. Department of State, June 11, 2020).
Pompeo acknowledged receiving letters from a bipartisan group of 69 senators and 262 House members urging him to call on the ICC to halt its “politically motivated” investigations of Israel and the United States. “That’s what the U.S. is dead set on doing, and with good reason,” Pompeo declared. “They’re a trusted and wonderful partner and a buttress of American security. If a rogue court can intimidate our friend or any other ally into abrogating its right to self-defense, that puts Americans at risk as well.”
Netanyahu applauded the U.S. decision, calling the ICC “corrupt,” “biased” and “politicized.” He accused the court of fabricating “outlandish charges,” such as that “Jews living in their historic homeland constitutes a war crime” (Noa Landau, “U.S. Decision to Sanction International Crime Court Was Coordinated With Israel, Source Says,” Haaretz, June 12, 2020).
The court’s decision to claim jurisdiction does not automatically mean that Israelis will be investigated. The prosecutor may begin an investigation, however, the current one behind the push to go after Israel will be replace in June and her successor may choose not to pursue charges.
At worst, the ICC could charge and potentially convict some Israelis of war crimes. It will take some time to identify suspects, however, and the standard for such prosecutions is high. The ICC has only prosecuted 30 cases since the court was created in 2002, winning only nine convictions (International Criminal Court). It is unlikely the court would have better luck finding fault with the democratically elected leaders of Israel or the soldiers of the IDF. Israel would fight any prosecution vigorously and, like the United States, refuse to recognize the court’s jurisdiction over its citizens.
As with other bodies, such as the Human Rights Council, the focus on Israel, a democracy with an independent judiciary that investigates accusations of abuse, represents a double standard. The ICC is not investigating blatant crimes committed by serial human rights abusers such as Turkey, China, and Russia. It has not, for example, charged Syria’s Bashar Assad for his use of chemical weapons against his citizens.
Another implication of the decision is to potentially prevent the Biden administration from restoring aid to the Palestinians. The Consolidated Appropriations Act of 2015 says that no Economic Support Funds can be provided to the if “the Palestinians initiate an International Criminal Court judicially authorized investigation, or actively support such an investigation, that subjects Israeli nationals to an investigation for alleged crimes against Palestinians.”
The Palestinians should also be careful what they wish for because Israel could bring charges against the terrorists in “Palestine,” for whom the evidence of war crimes is overwhelming. Rather than standing at the head of an independent state, Mahmoud Abbas could find himself in the dock facing imprisonment as a war criminal for his responsibility in inciting violence.
First published at Virtual Jewish Library