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US opposes ICC ruling it has jurisdiction to probe Israel, Hamas for war crimes

State Dept. says it will not back actions ‘that seek to target Israel unfairly’; Israeli official says country prepared to defend any citizen who faces prosecution

Jacob Magid is The Times of Israel's US correspondent based in New York

International Criminal Court chief prosecutor Fatou Bensouda addresses the 18th session of the ICC Assembly of States Parties in The Hague, December 2, 2019. (Courtesy International Criminal Court)
International Criminal Court chief prosecutor Fatou Bensouda addresses the 18th session of the ICC Assembly of States Parties in The Hague, December 2, 2019. (Courtesy International Criminal Court)

The State Department said Friday that the United States objects to the determination by a pretrial chamber of the International Criminal Court that The Hague has jurisdiction to open a criminal investigation into Israel and the Palestinians for war crimes alleged to have taken place in the West Bank, Gaza Strip and East Jerusalem.

“The United States objects to today’s International Criminal Court decision regarding the Palestinian situation. Israel is not a State Party to the Rome Statute,” tweeted State Department spokesperson Ned Price, referring to the statute which established the ICC.

“We will continue to uphold [US] President [Joe] Biden’s strong commitment to Israel and its security, including opposing actions that seek to target Israel unfairly,” Price said.

In a formal statement, the State Department said: “We have serious concerns about the ICC’s attempts to exercise its jurisdiction over Israeli personnel. The United States has always taken the position that the court’s jurisdiction should be reserved for countries that consent to it, or that are referred by the UN Security Council.”

State Department spokesperson Ned Price speaks during a press briefing at the State Department in Washington, Feb. 2, 2021. (Nicholas Kamm/Pool via AP)

Israel is not a member of the ICC and neither is the US. The Palestinians joined the court in 2015.

Last year, the Trump administration imposed sanctions against ICC officials, including revoking chief prosecutor Fatou Bensouda’s entry visa, in response to the court’s attempts to prosecute American troops for actions in Afghanistan.

The US, like Israel, does not recognize the court’s jurisdiction. At the time, then-secretary of state Mike Pompeo said the sanctions were meant as retribution for investigations into the United States and its allies, a reference to Israel. The Biden administration has said it will review those sanctions.

The ICC is meant to serve as a court of last resort when countries’ own judicial systems are unable or unwilling to investigate and prosecute war crimes. Israel’s military has mechanisms to investigate alleged wrongdoing by its troops, and despite criticism that the system is insufficient, experts say it has a good chance of fending off an ICC investigation into its wartime practices.

When it comes to settlements, however, some experts say Israel could have a difficult time contesting international law forbidding the transfer of a civilian population into occupied territory.

Bensouda indicated in 2019 that a criminal investigation, if approved, would focus on the 2014 Israel-Hamas conflict (Operation Protective Edge), on Israeli settlement policy and on the Israeli response to protests at the Gaza border in recent years.

If Israel and/or Hamas are ultimately convicted of war crimes, and if senior officials are named in such a verdict, they could be subject to international arrest warrants upon travel abroad. This could lead to a situation where certain member states would recommend that officials specified in the ruling avoid visits in order not to risk being detained.

A man inspects the damage to a house following a rocket attack by terrorists from the Gaza Strip on the Israeli town of Yehud, near Israel’s Ben Gurion International Airport, on July 22, 2014. (Yonatan Sindel/Flash90)

Israeli officials said Friday they do not currently anticipate any immediate threats to senior Israeli political or military figures.

However, an unnamed official told Kan News that Israel was making preparations to defend every citizen if they were to be prosecuted, while stressing that it does not believe this to be a likely scenario.

The three-judge pretrial panel was ordered to reach a conclusion on the ICC’s right to exercise jurisdiction in December 2019, after Bensouda determined at the end of her own five-year probe into the “situation in Palestine,” that there was “reasonable basis to believe that war crimes were committed” in the West Bank, Gaza Strip and East Jerusalem regions by both the IDF and terrorist group Hamas, as well as other “Palestinian armed groups.”

At the time, Bensouda said that she believed the court indeed has jurisdiction under the terms of the Rome Statute, to investigate possible war crimes in the area. But due to the controversial nature of the case, she asked for a definitive ruling from the pretrial chamber. Member states and independent experts were invited to weigh in on the matter as well. Israel, rejecting the court’s jurisdiction in the matter, chose not to do so.

In the 60-page, two-to-one decision released Friday, the court ruled that “Palestine qualifies as ‘the State on the territory of which the conduct in question occurred,'” and that “the Court’s territorial jurisdiction in the Situation in Palestine extends to the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem.”

“The Chamber,” it continued, was “not persuaded by the argument that ‘[r]ulings on territorial jurisdiction necessarily impair a suspect/accused’s right to challenge jurisdiction under” the Rome Statute.

File: The Pre-Trial Chamber of the International Criminal Court (ICC), composed of Judge Péter Kovács, Presiding Judge, Judge Marc Perrin de Brichambaut and Judge Reine Alapini-Gansou (courtesy ICC)

The case now returns to Bensouda, to decide whether she will move forward with a criminal investigation. Based on her 2019 ruling, she is expected to do so. Still, her term as prosecutor is set to expire in June and some Israeli officials believe that her as-yet-unelected successor could take a different path.

In Friday’s ruling, Marc Perrin de Brichambaut of France and Reine Adélaïde Sophie Alapini-Gansou of Benin represented the majority opinion of the pretrial chamber, while Péter Kovács of Hungary wrote the dissenting opinion.

Israel had the option of submitting its position on the matter to the ICC but chose not to, “out of a fundamental view that the court has no authority to carry out the investigation,” a diplomatic official told Hebrew media last year.

As such, Israel cannot appeal the ruling.

Israeli officials will meet in the coming days to discuss strategy moving forward, including the possibility of a shift away from the current path of refusing to cooperate with the ICC, Foreign Ministry officials said.

Judge Marc Perrin de Brichambaut at the ICC, 2019 (courtesy ICC)

Israel has long argued that the ICC has no jurisdiction, as there is no sovereign Palestinian state that could delegate to the court criminal jurisdiction over its territory and nationals.

But the Friday ruling stated that “in the view of the Chamber, Palestine acceded to the [Rome] Statute…[and] thus [has] the right to exercise its prerogatives under the Statute and be treated as any other State Party would.”

While most of the international community does not recognize Palestine as a state, it is still a member of the ICC, whose members are not determined based on whether they “fulfill the prerequisites of statehood under general international,” the chamber ruled.

Related: These three judges could send Israel to the dock at The Hague

Prime Minister Benjamin Netanyahu condemned Friday’s ruling: “Today the ICC proved once again that it is a political body and not a judicial institution,” he said. “The ICC ignores the real war crimes and instead pursues the State of Israel, a state with a strong democratic government that sanctifies the rule of law, and is not a member of the ICC.”

Israel’s Ambassador to the UN Gilad Erdan called the move a “distorted and anti-Semitic decision.”

“It is no accident that both Israel and the United States have refrained from becoming members of this biased and political institution,” Erdan said in a statement.

By contrast, Palestinian Authority Prime Minister Mohammed Shtayyeh praised the decision, calling it “a victory for justice and humanity, for the values of truth, fairness and freedom, and for the blood of the victims and their families,” according to the official Wafa news agency.

The move is a “message to perpetrators” who “will not go unpunished,” Shtayyeh added.

Tal Schneider and Agencies contributed to this report.

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