U.S. should oppose ICC attacks on Israeli officials
Israel Prime Minister Benjamin Netanyahu
[Editor's note: This story originally was published by Real Clear Wire.]
By Brett Schaefer
Real Clear Wire
For more than two decades, supporters of the International Criminal Court (ICC) have urged the U.S. to ratify the Rome Statute and join the court. But multiple U.S. administrations of both parties refused, concerned that the ICC lacks safeguards against political manipulation and violates national sovereignty by claiming jurisdiction over the nationals and military personnel of non-party states.
The ICC has just validated those concerns with its decision to seek warrants against Israeli Prime Minister Benjamin Netanyahu and Minister of Defense Yoav Gallant.
The politicization of the ICC and other international organizations regarding the Israel-Palestinian situation is not new. It’s part of a broad based effort by the Palestinian Authority to weaponize international organizations in its dispute with Israel and seek recognition absent a negotiated peace. In the case of the ICC, the Palestinians submitted a declaration to the ICC in 2009 accepting the court’s jurisdiction in its “territory.” The ICC rejected the declaration because it was not a state recognized by the United Nations.
Rather than negotiate with Israel and achieve statehood through a peace process, the Palestinians sought recognition in the United Nations. After the Security Council rejected a Palestinian bid for U.N. membership in 2011, the General Assembly granted the “State of Palestine” non-member observer state status in 2012 over the opposition of the Unites States. The U.S. has opposed efforts by the Palestinians to become full members of the U.N. because, as reiterated this month, “We also have long been clear that premature actions here in New York, even with the best of intentions, will not achieve statehood for the Palestinian people.”
Nonetheless, based on its elevated states in the UN General Assembly, the ICC recognized Palestine as a state and accepted its accession to the Rome Statute in 2015. This opened the door to an ICC investigation of “past, ongoing and future crimes within the court's jurisdiction” within the territory of the “State of Palestine,” which the Court sought to define as “the Palestinian Territory occupied in 1967 by Israel, as defined by the 1949 Armistice Line, [which] includes the West Bank, including East Jerusalem, and the Gaza Strip.”
The ICC opened an official investigation into the situation in Palestine in 2021. The ICC prosecutor confirmed it would cover
“crimes committed since 13 June 2014 in Gaza and the West Bank, including East Jerusalem. It is ongoing and extends to the escalation of hostilities and violence since the attacks that took place on 7 October 2023. In accordance with the Rome Statute, my Office has jurisdiction over crimes committed on the territory of a State Party and with respect to the nationals of States Parties.”
The U.S. opposed the investigation, asserting that the ICC lacks jurisdiction because Israel is not a party to the Rome Statute and the Palestinians “do not qualify as a sovereign state and therefore, are not qualified to obtain membership as a state in, participate as a state in, or delegate jurisdiction to the ICC.” In addition, the prosecutor’s statement is objectionable as it implicitly endorses Palestinian territorial claims outside of a negotiated agreement with Israel.
There is also the principle of complementarity, under which the ICC is supposed to investigate only if national authorities are unwilling or unable to prosecute genuinely. Israel has demonstrated repeatedly, including during the current conflict in Gaza, that it will investigate and punish its soldiers for crimes or negligence.
In defiance of this evident willingness of Israel to hold its soldiers accountable, the ICC yielded to pressure from the Palestinians, NGOs, and a few other governments to seek arrest warrants against Israeli leaders. This is the latest stratagem in a multipronged – multilateral, bilateral, rhetorical, military, economic, and legal – effort to pressure Israel to end the current conflict and make concessions to the Palestinians.
The ICC prosecutor is also seeking warrants for Hamas leaders relating to the killing, raping, and kidnapping of hundreds of Israeli civilians on October 7. But the ICC ignores Hamas’s responsibility for much of the suffering of Palestinian civilians due to theft of humanitarian aid, use of civilians as human shields, and misusing civilian and UN facilities, including hospitals and schools. Instead, the Court blames Israel of willingly causing suffering and starvation even though Israel gone to extraordinary lengths to evacuate Palestinians from harm’s way and facilitate humanitarian aid including over 500,000 tons of food, water, medical supplies, and shelter.
In short, the ICC has enabled Palestinian lawfare efforts against Israel, damaged prospects for peace by recognizing Palestinian statehood (and, implicitly, its territorial claims), asserted jurisdiction over Israeli citizens even though Israel has rejected ICC jurisdiction, and ignored Israel’s demonstrated ability and willingness to investigate crimes.
Of course, the ICC has not just targeted Israel. The ICC has also launched an investigation into American actions in Afghanistan. Like the Israel investigation, the court proceeded even though the U.S. is not a party to the Rome Statute and has rejected its jurisdiction. In response, the U.S. sanctioned ICC officials and applied political pressure that contributed to the ICC deciding to deprioritize its investigation into alleged U.S. crimes and, instead, focus on alleged crimes committed by the Taliban and the Islamic State-Khorasan.
The U.S. should be willing to similarly protect its ally, Israel. A condemnation by President Biden falls woefully short. Legislation introduced in Congress would apply sanctions to ICC officials if the court is conducting a preliminary examination or investigation against the U.S. or allies that have not consented to ICC jurisdiction or is pursuing charges against a U.S. persons or protected persons from U.S. allies that have not consented to ICC jurisdiction. At a minimum, the U.S. should cease all cooperation with and support of the ICC and its investigations.
Additionally, however, the U.S. should not neglect the instigator: the Palestinians. Annual appropriations legislation includes a provision to suspend Economic Support Fund aid to the Palestinians if they “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.” Although imprecise language allowed previous administration to dodge this requirement, it is past time to apply this prohibition.
Rewarding bad behavior ensures more of it. To protect sovereignty and preserve incentives for future peace negotiations, the U.S. should signal its strong objection to this illicit attempt by the ICC and the Palestinians to hobble Israel’s efforts to defend itself.
Brett D. Schaefer is the Jay Kingham Senior Research Fellow in International Regulatory Affairs in The Heritage Foundation’s Margaret Thatcher Center for Freedom.
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