US Secretary of State Antony Blinken/Flickr Commons

Harun Nasrullah

The US Secretary of State Antony Blinken has said his country “firmly opposes and is deeply disappointed” by the International Criminal Court (ICC) decision to open an investigation on alleged war crimes in the Occupied Palestinian Territories. The investigation comes after a February ICC ruling that the Occupied Palestinian Territories fall under its jurisdiction, paving the way for an investigation of war crimes committed by both Palestinians and Israelis.

“The ICC has no jurisdiction over this matter, Israel is not a party to the ICC and has not consented to the Court’s jurisdiction, and we have serious concerns about the ICC’s attempts to exercise its jurisdiction over Israeli personnel,” said Blinken on March 3. “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 ICC,” he said.

A resolution passed by the UN in 2012 changed the Occupied Palestinian Territories from an Observer Entity to a Non-Member Observer State, a de facto recognition of sovereignty that opened the door for the ICC’s ruling on jurisdiction. The ICC can investigate any Rome Statute crimes committed “in the occupied Palestinian territory, including

East Jerusalem, since June 13, 2014”, regardless of the nationality of the perpetrator. The ICC is not confined to investigating those crimes set out in preliminary reports and may expand the scope of the investigation. Blinken vowed the US “will continue to uphold our strong commitment to Israel and its security, including opposing actions that seek to target Israel unfairly”. The stance echoes that of Israel, who quickly decried the court’s investigation, with PM Benjamin Netanyahu calling the probe “the essence of anti-Semitism”.

Reaction from victims of possible war crimes in Gaza

Meanwhile, the ICC’s decision has been welcomed by the Palestinian Authority, which called it “a long-awaited step that serves Palestine’s tireless pursuit of justice and accountability, which are indispensable pillars of peace the Palestinian people seek and deserve”.

Amnesty International asked victims of possible war crimes in Gaza what an ICC investigation would mean to them. Tawfiq Abu Jame’ is one of just three survivors of an Israeli airstrike in Gaza, which killed 25 members of his family, including 19 children, on July 20 2014. He told Amnesty, “[An investigation] would not bring my kids back to life, however, I am certain that I need to continue to try to find some sort of justice. It is shocking to me that six years after I lost so many members of my family and my house that impunity reigns supreme for those implicated in the tragic crime committed [….] We can never achieve justice in Israeli courts, the ICC represents our only hope of achieving long-denied accountability and justice”.

Between August 1 and 4, 2014, Israeli forces bombarded a heavily populated area of Rafah, a city in the southern Gaza Strip. At least 135 civilians, including 75 children, were killed, among them 17-year-old Asil Abu Mohsen.

Asil’s father Saleh said, “An ICC investigation … remains essential to my understanding of what justice means. Before knowing about a potential ICC investigation into Israel’s crimes, I had resigned myself to the outlook that there would be no justice in my lifetime for the crime committed against my daughter Asil and many other Palestinians. The only justice we will get is through the ICC as no justice will be achieved through Israeli courts… Victims like us have becomefaceless numbers, but it’s time for our voices to be heard and for our suffering to be recognised.” Hamas also praised the probe, while defending its own actions.

Outgoing ICC Prosecutor Fatou Bensouda has said the inquiry into the “situation in Palestine” will be conducted “independently, impartially and objectively, without fear or favour”, but further details of the probe have not yet been released.

US sanctions on ICC staff

Blinken’s condemnation comes as pressure has grown on the Democrat Administration to lift Trump era sanctions on Bensouda and other ICC staff. During the two leaders’ first phone call, Netanyahu had reportedly pressured Biden to maintain sanctions in light of the court’s determination of the jurisdiction of the Occupied Palestinian Territories in February.

The US has said it is reviewing the Trump sanctions, initially imposed as a response to an ICC investigation into Afghanistan that includes looking into US abuses committed there. While Trump took an antagonistic approach to the ICC, his predecessor, former President Barack Obama, had pursued a policy of “positive engagement”, which saw the US supporting ICC investigations on an ad hoc basis.

President Joe Biden’s Administration had emphasised human rights and a multilateral approach to foreign policy and was widely expected to take a similar tack, but the delay in lifting the Trump sanctions has raised questions over whether Biden will be colder towards the court than Obama. Biden’s State Department had in February praised the ICC for deciding to convict Dominic Ongwen, commander of the Lord’s Resistance Army, for war crimes committed in Uganda in the early 2000s.

Blinken said the US “remains deeply committed to ensuring justice and accountability for international atrocity crimes” and recognises “the role that international tribunals such as the ICC can play”.

He added, “The ICC was established by its States Parties as a Court of limited jurisdiction. Those limits on the Court’s mandate are rooted in fundamental principles of international law and must be respected”. UK’s Foreign, Commonwealth and Development Office responded to the ICC decision: “We respect the independence of the ICC, and we expect it to exercise due prosecutorial and judicial discipline”.