Congress enables Israeli impunity at ICC

Josh Ruebner

The Electronic Intifada /  May 15, 2020

Earlier this week, a bipartisan grouping of 69 United States senators sent Secretary of State Mike Pompeo a letter encouraging him to continue his “vigorous support of Israel as it faces the growing possibility of investigations and prosecutions by the International Criminal Court.”

The letter was spearheaded by senators Rob Portman, a Republican from Ohio, and Ben Cardin, a Democrat from Maryland.

This duo also teamed up to introduce the blatantly unconstitutional Israel Anti-Boycott Act during the previous Congress.

That legislation, which was defeated by a combination of Palestine solidarity groups and the American Civil Liberties Union, proposed criminalizing individuals acting on behalf of nonprofit organizations or companies to further a boycott for Palestinian rights in coordination with an international organization, such as the UN or European Union.

Metadata on the PDF copy of the letter linked from Portman’s website lists the document’s “author” as Ester Kurz, the legislative director of the powerful Israel lobby group AIPAC.

AIPAC backed a similar letter in the House, which also criticized the ICC for investigating US war crimes in Afghanistan.

Duplicitous claims

With their latest letter, Portman and Cardin have collaborated again to shield Israel from the consequences of its illegal actions.

The senators correctly note that the International Criminal Court’s “actions currently underway could lead to the prosecution of Israeli nationals,” but conclude incorrectly that “the ICC does not enjoy legitimate jurisdiction in this case.”

As the senators state later in their letter, ICC chief prosecutor Fatou Bensouda requested in December 2019 a ruling from the ICC’s pre-trial chamber confirming the extent of the court’s jurisdiction over cases emanating from the Israeli-occupied West Bank and Gaza Strip.

There is good reason to believe that the ICC does have jurisdiction over Israeli actions in the West Bank, including East Jerusalem, and the Gaza Strip.

In November 2012, the UN General Assembly voted to confer non-member observer status on the State of Palestine, enabling it to join international bodies and sign international conventions.

In January 2015, Palestine acceded to the Rome Statute, thereby becoming a member of the ICC and accepting its jurisdiction, and depositing a complaint with the court against Israeli actions in the West Bank and Gaza Strip.

The senators’ claim that the ICC does not have “legitimate jurisdiction” over Israeli actions against Palestinians is duplicitous.

One of the primary objections of the Obama administration and pro-Israel members of Congress to Palestine becoming either a full member or observer state at the UN was precisely this scenario: Palestine joining the ICC and holding Israel accountable in a venue beyond US reach.

In the 2016 consolidated appropriations bill, passed in December 2015, Congress itself recognized the implications of Palestinians seeking to hold Israel accountable in the ICC and attempted to leverage US aid to kill any such investigation.

The bill would cut off all US economic aid to the Palestinian Authority should “the Palestinians initiate an International Criminal Court (ICC) judicially authorized investigation, or actively support such an investigation, that subjects Israeli nationals to an investigation for alleged crimes against Palestinians.”

In addition, the senators’ letter is replete with spurious legal terms and mendacious claims against the ICC, all of which are designed to bolster Israeli impunity.

They repeatedly refer to occupied Palestinian territores as “disputed territories,” a legally baseless term of Israeli hasbara – propaganda – used to obfuscate Israel’s Fourth Geneva Conventions responsibilities toward Palestinians under military occupation.

The senators also falsely characterize the ICC investigation as a “dangerous politicization of the court” which “unfairly targets Israel.”

They further claim, contrary to all evidence, that Israel has a “robust judicial system willing and able to prosecute war crimes of its personnel.” All of these assertions recycle old canards against any effort to hold Israel accountable for its actions.

The senators also seek to downplay the gravity of the charges leveled against Israel in the ICC complaint. They state that the ICC is relegated to the “prosecution of the most serious international crimes,” implicitly discounting Palestinian claims.

However, the Rome Statute, defines as a war crime, “the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory.”

Israel’s colonization of Palestinian land and dispossession of Palestinians in the West Bank is a crucial component of Palestine’s ICC complaint, and war crimes are undoubtedly among “the most serious international crimes.”


Most embarrassingly, the senators demonstrate their ignorance of international law by confusing ICC legal jurisdiction over occupied Palestinian territories with potential future bilateral negotiations between Israel and the Palestine Liberation Organization to determine borders in a two-state resolution.

They argue that ICC jurisdiction in this case would constitute a “political judgment” which would “determine whether the relevant territories are part of the State of Israel or occupied Palestinian lands.”

However, the Palestinian complaint and ICC investigation have nothing whatsoever to do with the delineation of borders; rather, they seek to determine Israel’s potential war crimes within areas firmly fixed under international law and UN resolutions as occupied territory.

It is unclear exactly what the senators hope to achieve with this letter other than grandstanding, since the United States is already implacably opposed to the ICC holding Israel accountable.

Perhaps by signing this letter, the senators are virtue signaling their intentions to pursue even more punitive sanctions against Palestinians should the ICC investigation go to trial.

Josh Ruebner is senior principal at Progress Up Consulting and author of Israel: Democracy or Apartheid State? and Shattered Hopes: Obama’s Failure to Broker Israeli-Palestinian Peace