Biden's opposition to ICC's Israel investigation draws condemnation and praise

Departing chief prosecutor Fatou Bensouda announced full war crimes investigation in Palestinian Territories

US President Joe Biden at the White House in Washington, March 4, 2021. AP Photo

The Biden administration’s opposition to an investigation by the International Criminal Court’s chief prosecutor into alleged crimes in the Palestinian territories is being met with scorn and praise.

The US is being criticised for ignoring the plight of Palestinians and lauded for defending Israel.

The court’s departing chief prosecutor, Fatou Bensouda, this week announced the opening of a full war crimes investigation into the activities of Israel and the Palestinian militant group Hamas in the Gaza Strip.

The investigation will cover events beginning in 2014.

“The decision to open an investigation followed a painstaking preliminary examination undertaken by my office that lasted close to five years,” Ms Bensouda said.

The decision follows another court ruling last month granting The Hague jurisdiction over the Palestinian territories, a decision that was rejected by the Biden administration.

US Secretary of State Antony Blinken issued a strongly worded statement in which he "firmly opposes" and "is deeply disappointed by this decision".

Mr Blinken regarded the court as lacking jurisdiction and the legal mandate for such an investigation, because Israel was not a member of the organisation.

He also said “the Palestinians do not qualify as a sovereign state and therefore are not qualified to obtain membership as a state in, participate as a state in, or delegate jurisdiction” to the court.

The Palestinians were granted non-member observer status in the UN General Assembly in 2012, which allowed them to join the court.

Khaled Elgindy, a senior fellow at the Middle East Institute where he directs the programme on Israeli-Palestinian Affairs, said Mr Blinken’s 402-word statement made no mention of the Israeli occupation.

“He makes it clear that the US opposes an ICC investigation on the grounds that Palestinians ‘do not qualify as a sovereign state’," Mr Elgindy said.

"But at the same time, there is also no mention of Israel’s occupation or its responsibilities under international humanitarian law.

“If it’s not a state and not under occupation, what is it?”

With the absence of a peace process, and “no path to either statehood or an end to the occupation”, Mr Elgindy fears that the message from the Biden administration is the continuation of the status quo as it undercuts its own support for a two-state solution.

“It suggests that not only does the US not recognise Palestinian statehood but it may now have an active interest in preventing [court investigations] in the future as well.”

Mr Blinken said that unilateral judicial actions “undercut efforts to advance a negotiated two-state solution".

Orde Kittrie, a senior fellow at the Foundation for Defence of Democracies, considered the court decision to be legally flawed and said the US objection was to be expected.

"Secretary Blinken's statement was not a surprise, as the prosecutor's decision is clearly politically driven, and stands contrary to international law and the ICC's legal mandate," Mr Kittrie, also a law professor at Arizona State University, told The National.

“Palestine’s status as a state for ICC purposes has been refuted by numerous submissions to the ICC, including by the Obama administration’s officials and by several European and other governments, including those of Australia, Canada, the Czech Republic and Germany.”

He said this was a strike against Ms Bensouda’s decision as she prepared to leave office in June.

Germany, Austria, the Czech Republic, Australia, Brazil and Uganda rejected the court's jurisdiction ruling last month.

Mr Kittrie also saw a strong consensus in Congress among Republicans and Democrats in opposing the move.

Last May, 330 members of Congress wrote to former US secretary of state Mike Pompeo echoing concern about the consequences of court war crimes investigations “for the United States and our ally, Israel".

But new members in Congress from the progressive wing, such as Palestinian-American Rashida Tlaib, have welcomed the court's decision.

“No one is above the law," Ms Tlaib tweeted on Wednesday.

"The ICC has the authority and duty to independently and impartially investigate and deliver justice to victims of human rights violations and war crimes in Palestine and Israel."

Mr Kittrie says the Biden administration has a strong preference for negotiating solutions and will not stop challenging the court when it comes to Israel.

“The ICC benefited greatly from the invaluable co-operation which it received from the US during the Obama administration,” he said.

This included positions on Libya and the Democratic Republic of the Congo, and the US offering rewards for information leading to the arrest of others who had been indicted.

“Given the Biden administration's strong response and the strong bipartisan opposition to the ICC investigations of the US and Israel, such co-operation seems highly unlikely to resume as long as the ICC continues its investigations of the US and Israel,” Mr Kittrie said.

But the Biden stance was perceived as a double standard by others, given the emphasis that the new team is putting on human rights and rule of law in other places in the Middle East.

Mr Blinken’s comments came on the same day he said the new administration would “stand firm behind our commitments to human rights, democracy, the rule of law".

Elizabeth Tsurkov, a fellow at the Newlines Institute for Strategy and Policy, said his comments show that on the issue of the Israeli occupation, "the Biden administration is adopting the traditional US approach".

Ms Tsurkov described that as "an uncomfortable mix of complicity with Israel's abuses, through annual provisions of aid to the military occupying the West Bank and blockading Gaza, and rhetoric condemning these abuses".

“At the end of the day, while the Biden administration is willing to take a more forceful approach towards its ally, Saudi Arabia, when it comes to Israel, the prevailing approach is still standing by Israel and shielding it from efforts to bring Israeli perpetrators of war crimes to justice, she said.

For now, the fate of any investigation could rest with Ms Bensouda's successor upholding the decision, dropping the case or setting different standards for the investigation before indictments are issued.