US Scraps Trump’s Sanctions Against ICC Prosecutor Fatou Bensouda, Others
President Joe Biden has revoked sanctions on top officials of the International Criminal Court that were imposed under the Trump administration, the State Department announced this Friday. 2 April 2021
Secretary of State Antony Blinken said the sanctions imposed on ICC chief prosecutor Fatou Bensouda and a top aide in 2019 “were inappropriate and ineffective,” and were therefore lifted.
The Hague-based court is to probe alleged war crimes in Afghanistan by Afghan forces, the Taliban, terrorist groups such as Al-Qaeda and the Islamic State-Khorasan Province and US military. It also recently opened a probe into alleged war crimes by Israel and Palestinian terror groups. Neither the US nor Israel are members of the ICC, but Afghanistan is.
“We continue to disagree strongly with the ICC’s actions relating to the Afghanistan and Palestinian situations. We maintain our longstanding objection to the court’s efforts to assert jurisdiction over personnel of non-states parties such as the United States and Israel,” Blinken said.
He added: “We believe, however, that our concerns about these cases would be better addressed through engagement with all stakeholders in the ICC process rather than through the imposition of sanctions.”
Quoting unnamed American officials, Axios reporter Barak Ravid tweeted that Blinken had updated on the move Israel’s Foreign Minsiter Gabi Ashkenazi before it was announced.
According to Ravid, the administration decided to remove the sanctions ahead of a debate on a petition in federal court. Administration officials reportedly told Israel they would not be able to defend the legality of the sanctions.
A State Department spokesperson confirmed in a statement that Blinken had spoken to Ashkenazi, but did not mention the ICC decision.
The ICC itself welcomed the decision in a brief statement posted online.
Silvia Fernandez de Gurmendi, president of the court’s management body of member states, said the US removal of sanctions was helpful in promoting “a rules-based international order.”
The decision to lift the sanctions was criticized by the pro-Israel lobby AIPAC, which said it was “disappointed” by the move, and denounced the ICC officials for “pursuing a baseless and discriminatory attack” on Israel.
“We urge the administration to continue and increase the use of all of its diplomatic tools to stand with Israel against the ICC’s discriminatory campaign. Bipartisan majorities in Congress oppose the ICC’s actions against Israel, and the US must continue to stand with our ally,” the group said.
In contrast J Street welcomed the move. “By removing these sanctions, President Biden, Secretary Blinken and their team are sending an important message that whatever disagreements they may have with the ICC or other international bodies, they will not act to improperly interfere with their proceedings or to intimidate and bully their personnel,” J Street said in a statement.
The group has previously said it takes no position on the merits of the ICC probe.
Last month, the administration said it “firmly” opposed the ICC’s recent decision to open an investigation into war crimes allegedly committed by Israel and the Palestinians in the West Bank, Gaza Strip and East Jerusalem, but was still weighing whether to maintain the sanctions against the body.
State Department spokesman Ned Price insisted that the ICC does not have jurisdiction over the matter as Israel is not party to the Rome Statute that established the court.
The ICC has sent formal notices to Israel and the Palestinian Authority about its impending investigation into possible war crimes, giving them a few weeks to seek deferral by proving they are carrying out their own investigations.
History:
Fatou Bensouda announced on March 3 that she was opening an investigation into acts allegedly committed by Israel and the Palestinians in the West Bank, Gaza, and East Jerusalem since 2014.
The announcement of the investigation came less than a month after the ICC pre-trial chamber ruled it had jurisdiction to open a probe. A preliminary investigation to settle the justiciability question took more than five years.
The ICC announced it would investigate possible war crimes committed by Israel and Palestinians following a request by the Palestinians, who joined the court in 2015 after being granted nonmember observer status in the UN General Assembly and the assent of the vast majority of. States parties to the Rome statute which governs the court, including main US allies.
Israel has fiercely condemned the investigation, accusing the ICC of bias, noting that it is demonstrably capable of investigating any alleged IDF crimes through its own legal hierarchies, and saying the ICC has no jurisdiction since the Palestinians do not have a state -which is irrelevant, all the more as the "State of Palestine" has now the status of non-member observer state in the UN General Assembly. Israel is not a member of the ICC, but its citizens could be subject to arrest abroad if warrants are issued.
The ICC probe is expected to focus on three main areas: the 2014 war between Israel and Hamas; Israeli settlement policy; and the 2018 Great March of Return protests, a series of violent demonstrations along Gaza’s border with Israel that left dozens of Palestinians dead.
The probe will also look at terrorist rocket fire from Gaza onto civilian areas in Israel.
Fatou Bensouda is to be replaced as prosecutor in June by British lawmaker Karim Khan. Israel is said to hope Khan may be less hostile or even cancel the probe.
https://tinyurl.com/yjoryoc9
Comment: This ends one of the most shameful episodes in the recent history of the State Department marked by Mike Pompeo's dissembling on this issue and others. The same Pompeo who claimed that Israeli settlements in the occupied territories were not necessarily in violation of international law, though this is exactly what UNSC 2334 and other acts of international law say: it is what lawyers call "black letter law", ie not subject to interpretation. Sanctioning including financially officers of an international court is unprecedented for a democratic country. These sanctions including preventing the ICC prosecutor to go to the UN in New York on court business, in violation of the hosting agreement between the US and the UN. The EU, the UK and Canada among others formally expressed their full support for the court and its officers. Now this shameful episode is over.
Now to the substance. The investigation and the possible prosecution of persons (the court does not investigate or prosecute states but persons) in a country that is not a state party to the Rome statute is indeed subject to authorization by the UN Security Council.
(a) The investigation of alleged war crimes in Afghanistan needs no Security Council permission as Afghanistan became a state party to the Rome Statute effective May 2003. All that has been heard from the Afghan government on the planned investigation is a deafening silence, The court plans to investigate alleged war crimes by the Taliban, the Haqqani network, the Islamic State-Khorasan Province and other terrorist groups, by elements of the Afghan security forces and by the US and other NATO countries. Those investigated are of course presumed innocent. The US has no legal basis to oppose an investigation in Afghanistan.
(b) Israel is not a state party to the Rome Statute, hence the ICC cannot investigate in Israel without the permission of the UN Security Council. The US would presumably veto such authorization, just like Russia has vetoed investigations in Syria, another non-state party. But the occupied territories are not part of Israel: even, the Israeli government makes no claims to them being part of Israel, save part of the Golan Heights and East Jerusalem, in opposition to a wealth of UN Security Council resolutions, for instance 497 for the Golan Heights, pushed forward by president Ronald Reagan, and 2334 for East Jerusalem (the resolution does not prejudge of the final status of Jerusalem, saying it should be negotiated by Israel and the Palestinians).
The fact that the Palestinian territories concerned are, according to the Israeli Supreme court held under belligerent occupation, and therefore subject to the 4th Geneva convention and the 1907 The Hague regulation, in no way authorizes Israel or the US to deny to the ICC the right to investigate there.
The question of the possible guilt of some or all parties is not something I will discuss here. What I want to point out is that as a matter of international law the position reiterated by Tony Blinken does not stand from a legal point of view.
Certainly the ICC will find that the construction and operation of settlements in the occupied territories is a war crime in the sense of the 4th Geneva convention and UNSC 2334, and that the annexation of part of the Golan Heights is in violation of UNSC 497. But on the rest I will take no position.
[See also on the position of the previous administration, "US State Department: Annexation should be part of Israeli-Palestinian peace talks!", https://tinyurl.com/y6w3fprk,
and on the position of the Biden administration in its first days, "The US and the ICC Investigation into Israel's and the Palestinians'? Behavior", https://tinyurl.com/yfgw2kt2
Both articles contain the legal references that I did not include here for reasons of brevity.]
Statement of interest: I am affiliated with JStreet