The United States' Apprehensions to the International Criminal Court over Palestine: Context & Case

Updated: Aug 5

Vasu Sharma, Junior Research Member, Internationalism

Akash Manwani, Research Intern, Internationalism


The Israel Palestinian Conflict


The intractable conflict between Israel and Palestine spans to about half a century. The territory of both the states was distinctly demarcated in 1947 with an end to British rule over the States. Soon after bifurcation, Palestine declared war against Israel which was successfully suppressed by Israel. Thereafter, from 1947 onwards to date, several peace treaties were signed and major conflicts took place. Israel was successful in seizing most of the territory which had been conferred to Palestine by the 1947 Agreement. The result of conflicts and wars over the years has led to clustered population site settlements from both sides throughout a disputed area known as West Bank which is one of the reasons why Palestine’s yearning for territorial sovereignty cannot materialize easily. It could not be said that Palestine has secured a distinguishable subcontinent as even today, a major part of Israel seems like two opposing nations woven into one. This conglomeration of divergent population, concentrated closely around each other, serves as an important background for the analysis of claims of statehood, sovereignty, and compensation for war crimes.

Palestine, several NGOs, and legal representatives of victims have levelled severe allegations of war crimes against Israel before the International Criminal Court (ICC). Although the state of Israel has an international personality, it had withdrawn itself from the Rome statute in the year 2002 and discarded the actions of the ICC as being politically motivated. The recognition of statehood of Palestine, on the other hand, is a sine qua non for proceedings to take place before the ICC and whether or not it is recognized as a state, is only dependent on the nature of material put forth before the ICC. Palestine has been rigorously vouching for its statehood and in one such attempt; it declared the ICC to have jurisdiction over issues of war crimes that had taken place in Gaza. The arguments put forth by Palestine, in favour of statehood, inter alia are that Palestine has been a sovereign state since its Declaration of Independence, that Israel never claimed sovereignty over Palestine occupied territories, that Israel had itself recognized Palestine as a State as per the Oslo Accords which was signed with the efforts of USA and that no formal or express recognition is required as an implicit recognition of statehood is a fulfilment of requisites[1].


Presently, the USA is vehemently opposing the ICC’s jurisdiction over allegations of war crimes against Israel, on the grounds of Israel not being party to the Rome statute and the lack of statehood of Palestine.

The USA has a vested interest to interfere in the matter, as similar allegations of war crimes in Afghanistan have been levelled against it before the ICC[2]. The chief prosecutor of the ICC, Fatou Bensouda, has filed reasons for initiation of prosecution in the Pre-trial chambers at the ICC, whose final decision on the statehood of Palestine is awaited[3]. It would be highly complicated for the ICC to render its decision on the statehood of Palestine when it possesses the inadequate authority to determine territories of a state, which is an essential component of statehood.

Further, Palestine’s case for statehood can be proved by merging little trickles of instances that have taken place over the past years. For instance, in 2008, the United Nations had submitted to the International Court of Justice, to give an advisory opinion on legal consequences of the construction of a separation wall in occupied Palestinian territory, wherein even Palestine was invited to present its opinion as a State[4]. Palestine is also accorded a status of Non-member observer state' by the General Assembly of the United Nations. In 2012, Palestine informed the Secretary-General that it must be referred to as the "State of Palestine" for all documentary purposes and nameplates of its representatives.


Probe into War Crimes in West Bank, Gaza Strip & East Jerusalem


On December 20, 2019, the ICC announces that there is reasonable evidence to believe that war crimes have been committed in Gaza Strip, West Bank, and East Jerusalem. According to Fatou Bensouda's examination (the Chief Prosecutor for this case), charges can be filed against Israeli Defence Forces, Hamas and Palestine Armed Groups.[5]


Although recognition of Palestine as a sovereign state is a debatable and global issue, it is part of the Rome Statute since 2015, but Israel is not. Hence this became an obstacle to initiate any investigation for war crimes in the region. In February 2020, Palestine along with seven other nations, 33 International Organizations, several International Law scholars submitted Amicus Curie, that 'The State of Palestine can transfer its criminal jurisdiction.' Furthermore, OIC (Organization of Islamic Countries) and the Arab League is already known Hungary (all members who ratified Rome Statute) submitted official documents, presented their reservations over jurisdiction on Palestine. Also, nations who recognized Palestine as a country on pre – 1967 lines argue the validity of ICC's jurisdiction over the region.


Hence on April 30, Fatou Bensouda submitted a sixty pages document at Hague, which could pave way further for investigation. According to Bensouda, this document was not meant to recapitulate statehood of Palestine but argues whether Palestine can transfer criminal jurisdiction to ICC or not. It was submitted to a three judges bench who would decide on the issue.[6]


The ICC's probe in Afghanistan


On March 5, 2020, the International Criminal Court sanctioned an investigation into war crimes committed in Afghanistan. Fatou Bensouda, the chief prosecutor of the investigation, believed her preliminary examination contains 'reasonable grounds' that provide evidence, that war crimes have been committed in Afghanistan, a country which ratified the Rome Statute. These proofs include mass killings by the Taliban as well as torture of prisoners by the CIA (Central Intelligence Agency). Other parties which can be charged for investigation are:

  1. United States armed forces present in Afghanistan

  2. Haqqani Network

  3. Afghanistan state-backed forces and fighters

This decision came within less than a week, post US – Taliban peace deal signed in Doha, February 29, 2020. However, since the deal has been signed there were airstrikes conducted by the US in retaliation to deadly attacks on West backed Afghan forces. Furthermore, there have been conflicts between Ashraf Ghani, President of Afghanistan, and Taliban over 5,000 prisoners, whose freedom/release Ashraf Ghani denied or refused. Washington believed to carry forward the peace process, violent frictions between both sides would be a major obstacle. Moreover, according to the United States, intra – Afghan negotiations would be pivotal for 'peace'.[7]


Washington's Reaction


When Fatou Bensouda signalled her intent for the case in 2019, her visa was revoked by the USA. On March 16, 2019, Mike Pompeo, US Secretary of State announced policy of Visa restrictions for employees of ICC involved in an investigation of US personnel. This announcement also included that Washington was responsible to protect American and allied military personnel and civilians from being prosecuted for deeds they had done to protect and defend their great nation. US would also discourage efforts of ICC to prosecute or pursue allied military personnel, including Israeli’s without consent of Allies. Pompeo as well indicated and promised steps of ‘economic sanctions’ against ICC.[8]


An infuriated Israel and the USA


According to Benjamin Netanyahu, the events taking place at Hague are a strategic threat to Israel and IDF (Israel Defence Forces). Furthermore, in a cabinet meeting on May 16, he announced that declaring efforts to prevent any such probe would be the top priority of his government[9] According to Israeli Minister, Yuval Steinitz, Bensouda's actions was the expression of an anti-Israel stand of hers and she was influenced by OIC as well. Moreover, the Palestine Liberation Organization has welcomed her stand and events at Hague as well.[10]


On the other hand, letters were signed by Senators as well as US House Representatives urged Mike Pompeo to protect Israelis from ICC's prosecution. These letters were proved to have strong backing by the American Israel Public Affairs Committee[11] A press statement by the US Department of State on May 15, titled ‘The International Criminal Court’s Illegitimate Prosecutions’[12] stated:

  1. The United States has a policy of not recognizing Palestine as a 'Sovereign State'. Hence it believes that Palestine does not qualify to acquire membership at International Organizations, Multilateral forums, International Institutions, etc

  2. ICC as a political body and not a judicial institution since it exercised its power beyond its jurisdiction

  3. ICC through these events has made a mockery of Law

  4. ICC will have to ‘exact consequences’

These decisions of the US can also be triggered due to its position during ICC's probe into war crimes in the investigation in Afghanistan, that it would protect allied military personnel from any prosecution.


Conclusions


Renewal of Israel – Palestine conflict

Due to ongoing conflicts and proxy wars in West Asia, subtly the Israel – Palestine could be seen getting overshadowed. However, the current events occurring in Hague indicate that there has been a fresh renewal of the conflict. Furthermore, ICC probing into Palestine would mark new chapters in International Order, as an International Judicial body would recognize Palestine as 'sovereign state' and conduct investigations in Palestine.


What US and Israel don’t concur

Both United States and Israel are not part of Rome statute and are being observed to retaliate against ICC quite vocally. Both of them are seen not be able to understand the fact that probe will be against both the sides:

Investigation will be against US armed forces, CIA, US-backed armed forces as well as Taliban and Haqqani network in Afghanistan
The probe would be against Israel Defence Forces as well as Hamas and Palestinian Armed Groups

Hence US and Israel are being seen unable to concur with the fact that both sides would be under probe and investigation by ICC, hence it could not prove to be a threat to their interests solely.


Washington’s rift with International Bodies

In April, Trump Administration decided to freeze funding of the World Health Organization and was quite vocal about the same. Within a month, it can be seen vocally retaliating decisions of an independent international judicial body. ICC has been viewed by Washington through hostility and as an entity that infringes its sovereignty. In 2018, the then National Security Advisor of the US, John Bolton, denounced ICC as 'illegitimate'.[13] With revoking of visas of ICC employees and threatening any International Body the US can be seen as manipulating and influencing an independent judicial body. Trump administration was seen distancing from the World Health Organization by freezing it's funding and can be seen punishing the International Criminal Court of justice through revoking the visa of Hague based court's employees. These events in 2020 indicate Washington's increasing rifts with international bodies and multilateralism.


Challenging US authority

In April 2019, the case by Fatou Bensouda to probe into Afghanistan for war crimes was rejected by ICC regarding the fact that Washington won't cooperate. However, decisions taken by ICC since February 2020 can be seen challenging US authority and hegemony in the International Order. Back in 1945, during Nuremberg Trials, concrete actions were not taken against Allied Forces for war crimes they conducted. Since then, actions of US-led alliances, or even US Armed forces, have gone unchecked. International Criminal Court, an independent judicial body, which adjudicates individuals accused of genocide, war crimes, and crimes against humanity, probing into war crimes in Afghanistan and Palestine depicts that inhumane actions during conflicts, death of civilians due to collateral damage won't go unchecked and ignored. Hence, Fatou Bensouda can be seen as challenging US authority in the International Order.


References

[1] Daniel Benoliel & Ronen Perry, Israel Palestine & the ICC, Michigan Journal of International Law Vol 32:73, 2010, available at: http://ssrn.com/abstract=1391963 [2] Pompeo warns ICC of consequences for potential war crimes probe of Israel, The Times of Israel, 16th May 2020, available at https://www.timesofisrael.com/pompeo-warns-icc-against-potential-illegitimate-war-crimes-probe-of-israel/ [3] International Criminal Court, Office of Prosecution, Pre-trial Chamber 1, ICC-01/18, 30th April 2020, available at https://www.icc-cpi.int/CourtRecords/CR2020_01746.PDF [4] Int’l Comm’n of Jurists, Legal, Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Request for an Advisory Position, 2004, available at: https://www.icj-cij.org/en/case/131 [5] Belen Fernandez, Israel Is Finally Being Investigated for War Crimes, Jacobin, April 30, 2020: https://jacobinmag.com/2019/12/israel-palestine-international-criminal-court-crimes [6] Raphel Ahren, Chief prosecutor insists ICC has jurisdiction to probe war crimes in ‘Palestine’, Times of Israel, April 30, 2020: https://www.timesofisrael.com/chief-prosecutor-insists-icc-has-jurisdiction-to-probe-war-crimes-in-palestine/ [7] ICC authorises investigation into alleged Afghanistan war crimes, AL Jazeera, March 5, 2020: https://www.aljazeera.com/news/2020/03/icc-authorises-investigation-alleged-afghanistan-war-crimes-200305101406253.html [8] US bars entry to ICC members probing 'war crimes' in Afghanistan, Al Jazeera, March 16, 2019: https://www.aljazeera.com/news/2019/03/bars-entry-icc-members-probing-war-crimes-afghanistan-190315191933901.html?utm_source=website&utm_medium=article_page&utm_campaign=read_more_links [9] Raphel Ahren, Netanyahu: Fighting ICC war crimes probe among government’s key objectives, Times of Israel, May 17, 2020: https://www.timesofisrael.com/netanyahu-fighting-icc-war-crimes-probe-among-governments-key-objectives/ [10] Raphel Ahren, Chief prosecutor insists ICC has jurisdiction to probe war crimes in ‘Palestine’, Times of Israel, April 30, 2020: https://www.timesofisrael.com/chief-prosecutor-insists-icc-has-jurisdiction-to-probe-war-crimes-in-palestine/ [11] Ron Kampeas, Congressional letters urge Pompeo to protect Israel from ICC, Times of Israel, May 15, 2020: https://www.timesofisrael.com/congressional-letters-urge-pompeo-to-protect-israel-from-icc/ [12] Micheal R. Pompeo, Secretary of State, Press Statement, The International Criminal Court’s Illegitimate Prosecutions, US Department of State, May 15, 2020: https://www.state.gov/the-international-criminal-courts-illegitimate-prosecutions/ [13] Source: ‘We Will Let The I.C.C. Die:’ Bolton Threatens International Court, September 10, 2018 New York Times: https://www.nytimes.com/video/us/politics/100000006097156/bolton-icc-sanctions.html?searchResultPosition=1

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