WASHINGTON – Prime Minister Benjamin Netanyahu called US Secretary of State John Kerry on Friday, shortly after the International Criminal Court announced it would begin a preliminary examination of Israel’s actions during last summer’s Operation Protective Edge, following the Palestinian Authority’s allegations of Israeli war crimes. Netanyahu reportedly asked Kerry to offer a strident response to this first step on the potentially long and complex road to indictments, and the State Department indeed promptly issued an emphatic denunciation of the ICC’s move.
The question is whether there’s much more the US can do. Short of invading The Hague, that is.
Washington is deeply unhappy with the ICC’s decision, and its fervent opposition to the probe extends beyond a simple show of support for Israel. The US is not a member of the international tribunal and has historically been wary of it. America’s relations with the court have demonstrated significant concern that The Hague’s critical lens could be turned toward American military actions as well. The current preliminary examination creates a potentially dangerous precedent for the United States: an ICC probe launched against a Western non-member state.
Due to concerns surrounding the potential prosecution of American leaders and military personnel, the United States disassociated itself from the ICC in 2002, when president George W. Bush informed the United Nations’ Secretary General that the US recognized no obligation to the court’s governing Rome Statute.
As a non-member, the United States does not directly fund the ICC – and thus cannot defund it in response to the newly-launched probe.
But the administration does have at least one recourse on US law: it can invade the Hague.
In 2002, Bush did not just withdraw the US signature on the Rome Statue, which established the ICC, but also signed into law the American Service Members’ Protection Act. The legislation authorizes the president to “use all means necessary and appropriate to bring about the release of any person described in subsection (b) who is being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court.”
In addition to people employed by or working on behalf of the United States government, the subsection includes “covered allied persons,” meaning “military personnel, elected or appointed officials, and other persons employed by or working on behalf of the government of a NATO member country, a major non-NATO ally, or Taiwan.” Israel is among the handful of states listed as major non-NATO allies.
In short, if the ICC holds any Israeli for trial, the president of the United States can deploy Delta Force to break them out of prison.
Since that is not about to happen — not least because it would require the US invading a close NATO ally, the Netherlands — a more credible US response would be to target not the ICC itself, but the Palestinian Authority. In the past two weeks, momentum has picked up on Capitol Hill for such a move, and AIPAC now lists “suspending Palestinian aid” on its legislative agenda.
Two bills were introduced in the past week that call on the US to “prohibit assistance to the Palestinian Authority until it withdraws its request to join the International Criminal Court.”
“Palestinian [Authority] President Mahmoud Abbas’ application to join the International Criminal Court (ICC) is an affront to all of those who have engaged for years in efforts to accomplish a peaceful resolution to the decades long Israeli–Palestinian conflict,” wrote the sponsor of one of the bills, Rep. Alcee Hastings (D-FL), in a statement Monday. “The Palestinian Authority’s anticipated war crimes complaint against Israel will, in no uncertain terms, severely hinder future comprehensive peace talks in a time when the advancement of a two-state solution that ensures enduring peace has never been more important.”
“We cannot stand by while the Palestinian Authority, engaged in a unity government with Hamas, makes frivolous and damaging claims against Israel Defense Forces soldiers and Israeli citizens residing in settlements in the disputed West Bank,” Hastings continued. “Congress must halt the $400 million American dollars sent annually to the Palestinian Authority until it withdraws its counterproductive request to join the International Criminal Court and returns to the negotiating table with Israel.”
A second bill, similar to Hastings’, was introduced two days later by Rep. Curt Clawson (R-FL). Both bills were referred to the House Committee on Foreign Affairs. Hastings’ office noted that his bill is the companion bill to similar legislation introduced in the Senate a week earlier by Sen. Rand Paul (R-KY).
The legislative initiatives come alongside a bipartisan statement issued last Friday by a heavy-hitting group of senators who warned that “the Palestinian Authority’s (PA) decision to join the International Criminal Court (ICC) is deplorable, counterproductive, and will be met with a strong response by the United States Congress.”
Senators Mark Kirk (R-IL), Lindsey Graham (R-SC), Robert Menendez (D-NJ) and Charles Schumer (D-NY) argued in the statement that “existing US law makes clear that if the Palestinians initiate an ICC judicially authorized investigation, or actively support such an investigation, all economic assistance to the PA must end.”
“If the ICC makes the egregious mistake of accepting the Palestinian Authority as a member, given that it is not a state, Congress will seek ways to protect Israeli citizens from politically abusive ICC actions,” the four warned.
Short of deploying commandos, however, that protection may require some legislative creativity. The clause of that 2002 American Service Members’ Protection Act that was most likely to be useful — one that would enable the US to withhold military assistance to ICC signatories who did not promise immunity to US forces — was effectively eliminated through a 2008 amendment signed by Bush before he left office.
Finally, the US could increase pressure on the UN to reconsider its decision to allow Abbas to seek membership in the ICC itself.
Since Israel is not an ICC member state, the only way that the ICC could launch an investigation into Operation Protective Edge is if the court argues that the alleged crimes occurred on the territory of a member state. Thus far, the ICC has denied that it has made any determination as to whether the Palestinian Authority should be considered a state, asserting that it is simply acting on the directive of UN Secretary General Ban Ki-moon. If the US determines that, in issuing his directive, the secretary-general treated the PA with the same standing as a member state, it would violate a two-decades old law that determines that the UN or its agencies will lose US funding if it gives the Palestinians the same standing as a member state.
With US funding constituting almost a quarter of the UN’s budget (as of 2013), the UN might be risking a significant cut in funding as the price for validating Palestinian claims at the ICC. The prospect of such a US-UN tussle seems remote, however.
More likely is an intensifying of efforts by legislators in Washington toward stripping funding from the PA, while the American and the Israeli governments wait to see whether ICC prosecutor Fatou Bensouda’s decision to open a probe — “not an investigation, but a process of examining the information,” as she made clear Friday — develops into something far more serious.