Last week, the International Criminal Court (ICC) confirmed that the court has territorial jurisdiction over events which take place in the Israeli-occupied West Bank, including East Jerusalem, and the Gaza Strip.
In January 2019, ICC prosecutor Fatou Bensouda concluded a preliminary examination into Israel’s policies and actions in occupied Palestinian territory and concluded that the criteria were met for proceeding with an investigation.
The next month, Bensouda asked the court for a ruling on the scope of its territorial jurisdiction. The publication of that ruling last week clears the way for Bensouda to investigate and potentially prosecute Israeli military and political officials for war crimes related to Israel’s illegal colonization of Palestinian land in the West Bank and its military operations in the Gaza Strip.
Israel is treating this development seriously. Hundreds of top-ranking Israeli political and military figures are expected to receive intelligence briefings about their potential arrest while abroad.
And on Sunday, the Foreign Ministry sent an urgent classified cable to its ambassadors asking them to lobby their host governments to issue statements against the ICC ruling and to send a “discreet message to the prosecutor asking her not to move forward with the investigation.”
The Biden administration needed no such prompting. Even before this cable was sent, the State Department released a statement expressing “serious concerns” about the ICC’s ruling.
“We do not believe the Palestinians qualify as a sovereign state, and therefore are not qualified to obtain membership as a state, or participate as a state in international organizations, entities, or conferences, including the ICC,” said State Department spokesperson Ned Price.
“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,” Price added.
By attempting to scuttle international judicial efforts to hold Israel accountable for its actions, the Biden administration is continuing a bipartisan pattern that stretches back at least to the George W. Bush administration.
Last year, the Trump administration slapped sanctions against individuals taking part in the investigation or prosecution of Israeli or US personnel in the ICC, freezing their US-based property and assets, and denying them visas to the United States. The move came in response to bipartisan, bicameral Dear Colleague letters drafted by AIPAC demanding action.
While Trump’s splenetic sanctions served a symbolic function and played no role in derailing the ICC process, the Obama administration’s vigorous overt and behind-the-scenes diplomatic protection of Israel at the UN did much substantively to prevent the ICC from investigating Israel’s actions.
The Goldstone Report, commissioned by the UN Human Rights Council to investigate Operation Cast Lead, Israel’s attack on the Gaza Strip in December 2008 to January 2009, found that Israel may have committed war crimes and crimes against humanity.
The damning conclusions of the report led the Obama administration to counsel and coordinate with Israel to prevent the report from reaching the ICC. In September 2009, US Ambassador to Israel James Cunnignham warned Israeli Deputy Foreign Minister Danny Ayalon of the “possible difficulties resulting from the Goldstone report and urged that Israel conduct credible investigations of its own, noting that this could help turn aside efforts to engage the ICC.”
The day after the Goldstone Report was released, US Ambassador to the UN Susan Rice met Ayalon on the sidelines of the UN General Assembly and pleaded with him to “help me help you” better “manage” the Goldstone Report by advancing the “peace process.”
Israeli-Palestinian talks would help “deflect and contain” the Goldstone Report, she said, and hinted that the US veto in the Security Council would ensure that the report would not get referred to the ICC.
Also, the Obama administration’s strenuous objections to Palestine’s full membership in the UN were largely motivated by the possibility that Palestine’s participation in international bodies such as the ICC could create an avenue to hold Israel accountable which the United States would be unable to prevent.
Congressional leaders were perturbed by this possibility as well. Former Representative Eliot Engel (D-NY) warned at the time that Palestine’s membership in the UN “would allow them to run around and harass Israeli leaders in the different international courts.” He threatened that “the UN better be careful.”
While the US veto in the Security Council made the rejection of Palestine’s full membership in the UN a foregone conclusion and obviated Engel’s threats, the UN General Assembly voted in 2012 to make Palestine a permanent non-member observer state, paving the way to Palestine’s accession to the Rome Statute of the ICC in 2015.
Prior to the ICC becoming a viable option for holding Israel accountable, the United States also objected to efforts by the International Court of Justice (ICJ) to rule on the legal consequences of Israel’s apartheid wall in the West Bank. In a precedent-setting advisory opinion, the ICJ ruled in 2004 that Israel’s wall and colonization of Palestinian land were illegal, the wall must be dismantled, and compensation paid to Palestinians adversely affected by it.
Despite President George W. Bush famously stating that “it is very difficult to develop confidence between the Palestinians and Israel with a wall snaking through the West Bank,” the Bush administration nevertheless tried to blunt the court proceedings.
In a January 2004 filing with the ICJ, the State Department’s legal adviser referenced the Bush administration’s already flailing “road map” and urged the ICJ “to avoid any steps that would interfere with or make this negotiating process more difficult than it already is.” The State Department also rather directly told the ICJ that “this risk could be avoided altogether if the Court declined to issue an advisory opinion.”
Fortunately, the ICJ ignored this request, instead creating a third party obligation for all states “not to render aid or assistance in maintaining the situation created by such construction” of Israel’s wall. It was the Bush administration’s failure, along with others governments, to act upon this obligation that led to Palestinian civil society’s call for accountability one year later in the form of BDS campaigns.
As long as the United States continues to act in a way that prevents or hinders international judicial accountability for Israel’s crimes, as the Biden administration did last week, it is incumbent upon civil society to continue with its grassroots BDS campaigns to hold Israel accountable as an alternative.
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To state the obvious, the entity referred to as “Israel” is neither a state nor a country, i.e., it has yet to officially declare its borders and have them agreed to as such by the international community.
Also:
https://www.haaretz.com/israel-news/.premium.highlight-forget-about-jewish-or-democratic-is-israel-even-an-actual-country-1.9224997
“Is Israel even an actual country?”
By Yuli Tamir, Haaretz, Oct. 12/20
EXCERPTS:
“Many people have been wondering recently whether Israel is a democratic country or a Jewish and democratic one. Or has Israel’s democracy been eroded perhaps, turning it into an autocratic country?
“I would like to ask a much simpler question. Is Israel a country? Based on the accepted (and most simplistic) definition, a country is a sovereign political organization that controls a defined territory. Its inhabitants are subject to a common authority and are governed by an independent government with the right to establish diplomatic relations or to declare war against other sovereign countries.
“Israel does not meet these basic conditions. It does not have a defined territory: As long as its northern and eastern borders have not been approved on a final basis, Israel is a political entity whose territory is subject to domestic and external dispute. Secondly, Israel lacks a source of authority accepted by all of its citizens.
“And third, Israel’s political independence is limited and is dependent in large measure on the policy of its ally – the United States. The challenge of dealing with the coronavirus pandemic highlights these three deficiencies.
“Territorial sovereignty”
“When the pandemic erupted Israel, like all other countries in the world, closed its borders. In doing so, it left a substantial portion of the West Bank and the Gaza Strip on the other side of the fence – an overt expression of the fact that those territories are not an indivisible part of the country’s sovereign territory. Israel has not included Palestinian residents of the Palestinian Authority and of Gaza in the tally of those infected, has not admitted patients from the territories to hospitals in Israel, and made a clear distinction between residents of the Palestinian area and residents of Jewish settlements in the West Bank. (cont’d)
“We do not believe the Palestinians qualify as a sovereign state”, says the Biden administration.
https://www.972mag.com/icc-palestine-united-states/
“The White House is right in saying that Palestine is not a sovereign state — under the peace process, Israel and the U.S. made sure it couldn’t become one….For all its claims of supporting a fair solution to the conflict, Washington has been more concerned with “acting as Israel’s attorney,” as former U.S. negotiator Aaron David Miller put it, to ensure that any Palestinian entity born out of negotiations would remain subject to Israeli discretion.”
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“That is an indication that although it doesn’t acknowledge it, Israel views itself as in practice having territorial sovereignty only within its pre-Six-Day War 1967 borders. At the same time, Israel has signed a peace agreement with the United Arab Emirates that includes a commitment not to annex the territories in the near future, which underscores recognition of the fact that its sovereign borders, as well the application of Israeli law, remain unresolved.”
“Because since Israel’s founding it has not had a constitution, the battle over Israel’s source of authority has not ended. And because they haven’t gotten used to respecting the state as the supreme source of authority, the groups all feel that any limitation imposed on them is part of an attempt to dictate a new division of authority that places them in an inferior position.
“In such a state of affairs, the government’s sovereignty is being eroded, and it cannot make decisions and enforce them. Defiance of government directives has put the limits of compliance in clearer relief – on the part of secular Israelis in the name of freedom, on the part of the Arabs in the name of tradition and communal identity, and on the part of the ultra-Orthodox in the name of the sanctification of the Almighty.”