The US and the ICC Investigation into Israel's and the Palestinians' Behavior
[This article was first published as a post in the International Relations Professional Discussions group. It concentrates on the legal issues. I will ask members who are inclined to commenting what follows to limit their comments to the legal aspects, as I don't want this to be an opportunity for a shooting match. If this request wasn't observed I would block all comments. -GRM]
US Secretary of State Anthony J Blinken has yesterday 3 March 2021 reiterated the US opposition to the opening of an investigation into Israel's behavior towards the Palestinians including the issue of whether war crimes were committed, as well as Palestinian behavior. I will here express no view on whether crimes were committed but will attempt to show how the Secretary's arguments are legally flawed. Let's first hear what Blinken said:
"Today, the Prosecutor of the International Criminal Court (ICC), whose term ends in June [this is Fatou Bensouda -GRM], confirmed the opening of an investigation into the Palestinian situation. The United States firmly opposes and is deeply disappointed by this decision. The ICC has no jurisdiction over this matter. Israel is not a party to the ICC and has not consented to the Court’s jurisdiction, and we have serious concerns about the ICC’s attempts to exercise its jurisdiction over Israeli personnel. 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.
"The Prosecutor’s statement acknowledges some of the many reasons why the ICC will first take its time to determine its priorities, given its limited resources and other challenges, and not proceed to conduct any investigative activity related to this situation. She has previously recognized that “it would be contrary to judicial economy to carry out an investigation in the judicially untested jurisdictional context of this situation only to find out subsequently that relevant legal bases were lacking.” As she acknowledges, that very possibility remains as likely today as ever.
"The ICC Pre-Trial Chamber I’s decision of February 5 did not resolve the serious legal questions arising from any exercise of territorial jurisdiction in this matter, suggesting potential temporal, territorial, and nationality gaps in the finding of jurisdiction in future cases, leaving it to the Prosecutor to navigate such complicated circumstances.
"The United States remains deeply committed to ensuring justice and accountability for international atrocity crimes. We recognize the role that international tribunals such as the ICC can play —within their respective mandates— in the pursuit of those important objectives. The ICC was established by its States Parties as a Court of limited jurisdiction. Those limits on the Court’s mandate are rooted in fundamental principles of international law and must be respected.
"Moreover, the United States believes a peaceful, secure and more prosperous future for the people of the Middle East depends on building bridges and creating new avenues for dialogue and exchange, not unilateral judicial actions that exacerbate tensions and undercut efforts to advance a negotiated two-state solution.
"We will continue to uphold our strong commitment to Israel and its security, including by opposing actions that seek to target Israel unfairly.
https://tinyurl.com/y8h392dw
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It is my contention as a lawyer specializing in international law that the Secretary's argumentation is deeply flawed and that he got some of his facts wrong.
Says Blinken: "The ICC has no jurisdiction over this matter. Israel is not a party to the ICC and has not consented to the Court’s jurisdiction, and we have serious concerns about the ICC’s attempts to exercise its jurisdiction over Israeli personnel. 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."
Israel is indeed not a state party to the Rome Statute (neither is the US) and no ICC investigation in Israel proper can take place without Security Council authorization. But this cannot apply to the occupied territories where Israeli settlements are illegal under international law, as indicated in UNSC 2334 and previous resolutions, which deny Israel jurisdiction over the latter. The resolution, which was approved unopposed, "reaffirms that the establishment by Israel of settlements in the Palestinian territory occupied since 1967, including East Jerusalem, has no legal validity and constitutes a flagrant violation under international law and a major obstacle to the achievement of the two-State solution and a just, lasting and comprehensive peace;."
It "calls upon all States, bearing in mind paragraph 1 of this resolution, to distinguish, in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967."
As Israel has no internationally recognized jurisdiction over the occupied Palestinian territories it has no legal grounds to oppose an ICC investigation in the said territories, neither has the Security Council. This makes the US position legally irrelevant.
"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." This is simply factually wrong. On 29 November 2012 the 193-member U.N. General Assembly voted 138 to 9, with 41 abstentions, to recognize in resolution resolution 67/19 Palestine as a “non-member observer state,” which allows her membership of UN organizations. On April 1, 2015, the "observer non-member state of Palestine" became the 123rd member of the ICC, 90 days after the Palestinians lodged a declaration accepting the jurisdiction of the court over alleged crimes committed in the occupied territories of East Jerusalem, the West Bank and Gaza from 13 June 2014.
Secretary Blinken's assertion is therefore factually erroneous.
The Secretary further says that the ICC was established by its States Parties "as a Court of limited jurisdiction. Those limits on the Court’s mandate are rooted in fundamental principles of international law and must be respected." That's absolutely correct. It isn't a substitutive court, ie it should intervene only in major cases where the judiciary of the States concerned, here Israel as well as the non-member state of Palestine, are unable or unwilling to investigate and/or prosecute. This is here precisely the case.
"Moreover, the United States believes a peaceful, secure and more prosperous future for the people of the Middle East depends on building bridges and creating new avenues for dialogue and exchange, not unilateral judicial actions that exacerbate tensions and undercut efforts to advance a negotiated two-state solution." The court's action is not unilateral since it has been approved by the multinational pre-trial chamber.
Further, there is no contradiction between pursuing peace by diplomatic means and investigating behavior that could be criminal, something that only an investigation and if warranted a trial could establish. Note that the Palestinian parties will also be investigated, not only Israel.
"We will continue to uphold our strong commitment to Israel and its security, including by opposing actions that seek to target Israel unfairly", Blinken concluded. I will put it here that there is nothing unfair in investigating Israel and the Palestinians. Only a verdict if unwarranted could be unfair. Some UN bodies have been unfair to Israel, such as the UN Human Rights Council which the US is joining back This isn't the case with the ICC.
On the positive side I note that Blinken has reaffirmed support for the two-state solution and has recognized "the role that international tribunals such as the ICC can play" -quite a change from the Trump-Pompeo attacks on the ICC, officers of the court and their families.
I also support this administration's commitment to the security of Israel, but as Henry Kissinger once famously said, this does not extend to its conquests.
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