US opposes ICC probe into Israel, Palestinians; weighs maintaining sanctions

State Department spokesman says Palestinians aren’t sovereign state and therefore can’t delegate jurisdiction to The Hague, says decision ‘unfairly’ targets Israel

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

Demonstrators carry banners and Palestinian flags outside the International Criminal Court, ICC, urging the court to prosecute Israel's army for war crimes in The Hague, Netherlands, November 29, 2019. (AP Photo/Peter Dejong)
Demonstrators carry banners and Palestinian flags outside the International Criminal Court, ICC, urging the court to prosecute Israel's army for war crimes in The Hague, Netherlands, November 29, 2019. (AP Photo/Peter Dejong)

The Biden administration “firmly” opposes the International Criminal Court’s decision to open an investigation into alleged war crimes committed by Israel and the Palestinians, but is still weighing whether to maintain sanctions against the body imposed by the Trump administration, the US State Department spokesperson said Wednesday.

“We firmly oppose and are disappointed by the ICC prosecutor’s announcement of an investigation into the Palestinian situation,” said Ned Price at his daily press briefing.

“We will continue to uphold our strong commitment to Israel and to its security, including by opposing actions that seek to target Israel unfairly,” he added, insisting that the ICC does not have jurisdiction over the matter as Israel is not party to the Rome Statute. (The Palestinians have been since 2014.)

US Secretary of State Anthony Blinken later echoed these points.

Like Israel, the US is also not a member of the ICC and has found itself at odds with The Hague-based international court due to its ongoing probe into alleged war crimes in Afghanistan by Afghan forces, the Taliban as well as the American military. In 2019, US President Donald Trump imposed economic sanctions and visa travel restrictions against chief prosecutor Fatou Bensouda, who made Wednesday’s announcement as well as one of her aides.

Asked whether the Biden administration would keep those sanctions in place, the State Department spokesman said, “much as we disagree with the ICC’s actions… we are thoroughly reviewing sanctions… as we determine our next steps.”

“The Palestinian do not qualify as a sovereign state, and therefore are not qualified to obtain membership as a state or to participate as a state or to delegate jurisdiction to the ICC,” added Price.

The State Department spokesman noted Bensouda’s clarification that her office would need to assess priorities and resources before determining when and how to proceed, indicating hope that the decision could still be walked back or limited in scope.

“The United States is 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,” Price said.

“We are committed to promoting accountability, respect for human rights and justice for the victims of atrocities,” he said.

State Department Spokesman Ned Price speaks to reporters during a news briefing at the State Department in Washington, on Monday, March 1, 2021. (Tom Brenner/Pool via AP)

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. The probe will also likely focus on accusations of war crimes by the Hamas terror group against Israeli civilians. The ICC doesn’t try countries, but rather individuals.

Wednesday’s investigation was welcomed by the Palestinian Authority and furiously condemned by Israel, with Prime Minister Benjamin Netanyahu who called it “the epitome of anti-Semitism and hypocrisy.” It came less than a month after the court ruled it had the jurisdiction to open a probe.

“The investigation will cover crimes within the jurisdiction of the Court that are alleged to have been committed in the situation since 13 June 2014, the date to which reference is made in the referral of the situation to my office,” said Prosecutor Fatou Bensouda in a statement.

“Any investigation undertaken by the office will be conducted independently, impartially and objectively, without fear or favor.”

The June 13, 2014, date is significant. Palestinian terrorists kidnapped and murdered three Israeli teenagers in the Gush Etzion area of the West Bank the day before. By asking for an investigation beginning on June 13, the Palestinians ensured that the ICC will not look into the killing of Eyal Yifrach, Gil-ad Shaer, and Naftali Fraenkel.

From left to right: Eyal Yifrach, 19, Gil-ad Shaer, 16, and Naftali Fraenkel, 16, three Israeli teenagers who were seized and killed by Palestinians on June 12, 2014 (photo credit: IDF/AP)

She noted her previous refusal to investigate Israel for war crimes over the Mavi Marmara raid in 2010. “In the current situation, however, there is a reasonable basis to proceed and there are admissible potential cases.”

Hamas, which rules the Gaza Strip, welcomed the decision by the ICC.

However, the terror organization is directly implicated in the alleged war crimes the tribunal seeks to investigate. In its statement, a Hamas spokesperson defended the group’s actions as “legitimate resistance” against Israel.

In June, Bensouda will be replaced by British lawyer Karim Khan, who has the ability to close down the investigation if he chooses

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