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ICC hopes for ‘new phase’ as Biden lifts sanctions on prosecutor probing Israel

Top official says she now anticipates US support to ensure no impunity for war crimes; outgoing prosecutor last month announced probe of Israel, Palestinian terror groups

Silvia Fernandez De Gurmendi from Argentina takes the oath during a swearing-in ceremony as a new judge of the International Criminal Court (ICC), at the seat of the Court in The Hague, Netherlands, Wednesday, Jan. 20, 2010. (AP Photo/ Bas Czerwinski)
Silvia Fernandez De Gurmendi from Argentina takes the oath during a swearing-in ceremony as a new judge of the International Criminal Court (ICC), at the seat of the Court in The Hague, Netherlands, Wednesday, Jan. 20, 2010. (AP Photo/ Bas Czerwinski)

The International Criminal Court welcomed US President Joe Biden’s lifting of sanctions imposed by former US president Donald Trump on the tribunal’s prosecutor, saying it signalled a new era of cooperation with Washington.

The Trump administration imposed the financial sanctions and a visa ban on Fatou Bensouda and another senior court official last year after she launched an investigation into alleged war crimes by US military personnel in Afghanistan.

The head of the group representing The Hague-based court’s member countries expressed “deep appreciation” for the Biden administration move Friday, which comes as the administration seeks a more cooperative approach on a dispute that has alienated allies.

“I welcome this decision which contributes to strengthening the work of the court and, more generally, to promoting a rules-based international order,” Silvia Fernandez de Gurmendi, head of the Association of States Parties to the ICC, said in a statement.

Fernandez said the ICC had “always welcomed the participation” of the United States in achieving justice for war crimes, despite the fact that the US did not ratify its founding Rome Statute in 1998.

“I trust this decision signals the start of a new phase of our common undertaking to fight against impunity for these crimes,” she added.

Fernandez said the US decision also came at a “fundamental juncture” when reforms were being enacted at the court, which has also come under scrutiny over internal matters including judges’ salaries.

ICC Prosecutor Fatou Bensouda (left) with Palestinian Foreign Minister Riyad al-Maliki on the sidelines of the ICC Assembly of States Parties in The Hague, December 2, 2019 (courtesy International Criminal Court)

US Secretary of State Antony Blinken said as he announced the lifting of the sanctions that he was encouraged by the reforms.

However the new administration has continued to oppose the Afghan probe, as well as a separate investigation into alleged war crimes in the Palestinian territories by US ally Israel and Palestinian terror groups. Neither the US nor Israel are members of the ICC.

Gambian-born Bensouda is leaving her job in June and will be replaced by British human rights lawyer Karim Khan, who now can open his work without the burden of looming sanctions.

Blinken said the economic sanctions “were inappropriate and ineffective,” and were therefore lifted.

The Hague-based court is probing alleged war crimes in Afghanistan by Afghan forces, the Taliban and US military.

“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 Israel’s Foreign Minsiter Gabi Ashkenazi before the announcement.

According to Ravid, the administration decided to remove the sanctions ahead of a debate on a petition against them at federal court. Administration officials reportedly told Jerusalem 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.

US Secretary of State Antony Blinken (R) speaks to staff at the State Department in Washington during US President Joe Biden’s first visit, February 4, 2021. (Saul Loeb/AFP)

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.

The dovish J Street lobby organization 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” opposes the ICC’s recent decision to open an investigation into alleged war crimes 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.

Bensouda announced on March 3 that she was opening an investigation into actions 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 court ruled it had the jurisdiction to open a probe. A preliminary investigation to settle the justiciability question took more than five years.

Illustrative: Israeli soldiers rush towards a target during the 2014 Gaza war, known in Israel as Operation Protective Edge, on August 4, 2014. (IDF Spokesperson’s Unit)

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.

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. 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.

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.

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