Amb. Alan Baker: This flawed decision turns the ICC itself into just one more Israel-basher
It is both tragic and ironic that the State of Israel, one of the founding fathers of the vision of creating an independent International Criminal Court after the unimaginable atrocities committed against the Jewish People during the Holocaust, has now become the target of that very International Criminal Court.
As one of the leading countries actively involved, from the start, in the negotiation and drafting of the founding document, the Statute of the ICC, it is all the more ironic that Israel now finds itself being accused by the Court based on Palestinian political manipulation.
What was intended to be an independent juridical body devoted to preventing impunity enjoyed by the most serious and atrocious war criminals, by bringing them to justice, is now being politically manipulated against the one state that since the early 1950s has consistently advocated the establishment of such a body, the State of Israel.
The irony is all the more evident given the legal acrobatics by the politically oriented and politically influenced prosecutor of the Court and the majority of judges of the Pre-Trial Chamber, in their obstinate and flawed insistence on attributing elements of statehood and sovereignty to a Palestinian entity that is distinctly, and by all international standards, not a state.
Nor does such entity have any sovereign territory, and thus, even according to the Statute of the ICC, cannot be the subject of the Court’s jurisdiction. The Palestinians have absolutely no standing in the court.
This ironic situation is not surprising given the prevailing international atmosphere of incitement and hostility towards Israel throughout the UN system.
However, what is shocking is the fact that the one international juridical institution that was hoped and intended by its founders, and stated in its founding document, to be “an independent, permanent International Criminal Court…with jurisdiction over the most serious crimes of concern to the international community as a whole,” has allowed itself to be politically manipulated and abused.
Six actions Biden should take to hold the ICC and Palestinian leaders accountable
Though the Biden administration also condemned the ICC decision, there are indications that it wants to reverse the strong policies against the ICC adopted by its predecessor, the administration of former U.S. President Donald Trump.ICC, ICJ push Joe Biden into Donald Trump’s shoes - analysis
Instead, however, Washington should take the following actions to impose consequences on the ICC and the Palestinian leadership:
First, it should implement Trump’s Executive Order 13928 to impose additional sanctions, such as the blocking of property and revoking of visas of “ICC officials, employees, and agents, as well as their immediate family members” who are part of this decision against Israel.
Trump firmly asserted that “any attempt by the ICC to investigate, arrest, detain or prosecute any United States personnel without the consent of the United States, or of personnel of countries that are United States allies and who are not parties to the Rome Statute or have not otherwise consented to ICC jurisdiction, constitutes an unusual and extraordinary threat to the national security and foreign policy of the United States, and I hereby declare a national emergency to deal with that threat.”
His administration then imposed sanctions on ICC Prosecutor Fatou Bensouda and her aide, Phakiso Mochochoko, for launching an illegitimate investigation into alleged “war crimes” by U.S. forces in Afghanistan. Israel expressed support for the U.S. sanctions. But the European Union, along with more than 70 countries, announced opposition to them.
Unfortunately, the Biden administration is now reviewing those sanctions, and may acquiesce to the pressure campaign to lift them as part of a softer approach to the ICC. This would be a big mistake.
Second, the Biden administration should use Trump’s E.O. 13938 to impose sanctions on individual P.A. leaders who have been materially assisting or providing support for this charade against Israel. After acceding to the 2015 Rome Statute, P.A. leader Mahmoud Abbas appointed a 45-member “higher national supervising committee,” chaired by the late PLO Executive Committee Secretary General Saeb Erekat, to pursue legal action against Israel in the ICC.
Erekat told Palestine TV that the committee was made up of the “the complete spectrum of Palestinian political factions,” including Hamas, the PFLP and DFLP—and that P.A. Foreign Minister Riyadh al-Maliki served as its official liaison to the ICC.
In other words, the P.A. has been collaborating with members of State Department-designated foreign terrorist organizations that seek the destruction of Israel to provide material against it to the ICC. This is in addition to public statements by Abbas, al-Maliki, P.A. Prime Minister Mohammad Shtayyeh and Hamas encouraging and lauding ICC actions against Israel.
In less than a week, the International Criminal Court and International Court of Justice have shockingly put US President Joe Biden into former president Donald Trump’s shoes on the international law scene.Kamala Harris signed letter in May against ICC's ‘dangerous politicization'
Last week, the ICJ issued a jurisdiction ruling against the US sanctions program on Iran. Then, over the weekend, the ICC issued a jurisdiction ruling against Israel in the six-year running war crimes controversy.
US reactions from the State Department to both rulings were highly critical.
To the layperson, the criticism might have sounded the same for the ICJ and the ICC as what would have come from the Trump administration. Israel would be happy if the US does not get too chummy with the ICC and the ICJ, since Jerusalem also supports US sanctions on Iran.
That is not all.
True, the Biden administration has reaped global praise for signing a range of executive orders re-joining the Paris climate treaty, erasing Trump-era prohibitions on immigration and travel from certain Muslim countries and a more positive tone toward the UN and the EU.
But 17 days into his administration, Biden has neither rescinded Trump-era financial and visa sanctions against the ICC nor has he rescinded the executive order that could allow him to use such sanctions further in the future.
The bipartisan letter Harris signed last May when she was a senator, urged then-secretary of state Mike Pompeo to “stand in full force against any biased investigation of Israel” by the ICC. The leading signatories were Senators Ben Cardin of Maryland, a Democrat, and Rob Portman of Ohio, a Republican. Close to 70 more senators, including Harris, joined them.
The letter came six months after ICC Prosecutor Fatou Bensouda announced that she thought there was “a reasonable basis to proceed with an investigation” into crimes by Israelis and Palestinians.
That announcement “constitutes a dangerous politicization of the Court and distorts the purposes for which the court was established,” the Senators wrote, pointing out that it was meant to be a court of last resort for prosecuting serious international crimes.
“ICC actions currently underway could lead to the prosecution of Israeli nationals despite the fact the ICC does not enjoy legitimate jurisdiction in this case,” the letter reads. “Both Democratic and Republican administrations have refused to join the Court in part because they feared its politicization and misuse.”
The Senators pointed out that “Palestine” does not meet the criteria for statehood and that Israel – as well as the US – are not members of the court, and that the court’s own rules “prohibit it from prosecuting cases against a country that has a robust judicial system willing and able to prosecute war crimes of its personnel,” which Israel has.
“By accepting Palestinian territorial claims over the West Bank, East Jerusalem, and Gaza, the Prosecutor is making a political judgment that biases any subsequent investigation or trial,” the letter states. “Establishing the boundaries of any future Palestinian state is a political decision that must be determined through negotiations between Israel and the Palestinians. Any ICC determination regarding its jurisdiction over the disputed territories or investigation of Israel would further hinder the path to peace.”
US President Joe Biden has used executive orders to overturn dozens of former US president Donald Trump’s policies, but lifting sanctions on ICC officials is not one of them.