The “Situation in Palestine”

The Court’s efforts to investigate the situation in Palestine will also require attention. The Court’s recent conclusions, in a divided decision issued by a Pre-Trial Chamber, that Palestine is a state for purposes of the Rome Statute’s jurisdictional provisions, that there is jurisdiction over the situation in Palestine, and that jurisdiction extends to “Gaza and the West Bank, including East Jerusalem”  are all inconsistent with the views of the United States under the Bush, Obama, and Trump Administrations. For its part, the Biden Administration has already put itself on record to the same effect, with Secretary of State Blinken stating that “[t]he 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” and that the Administration disagrees strongly with the ICC’s actions on the Palestinian situation.  In the wake of the Pre-Trial Chamber decision, expressions of congressional support for the Israeli position have continued.  Most recently, in March 2021, fifty-seven Senators signed onto another bipartisan letter led by Senators Cardin and Portman that called the Court’s decision “a dangerous politicization of the Court”, called on the Administration “to stand in full force against” the decision, and urged it to work with like-minded partners “to steer the ICC away from further actions that could damage the Court’s credibility.” 

Beyond this issue of the scope of the Court’s territorial jurisdiction,  the Task Force notes that a number of other legal questions have been raised. These include questions regarding the circumstances in which transfers of population qualify as war crimes (particularly under customary international law) and the implications of the fact that both borders and settlements are treated by various international instruments—including General Assembly Resolution 67/19, upon which the Court has relied in determining that it has jurisdiction—as “outstanding issues” to be resolved as part of a just, lasting, and comprehensive peace settlement between the Israelis and the Palestinians. 

There are two important points to note about Israel’s particular concerns about the ICC. First, the fact that Israel views its settlements as permissible under international law greatly complicates its ability to challenge admissibility on the basis of complementarity. Second, Israel’s political cost/benefit analysis on the risks it faces with the ICC is different than that of the United States. For example, even if one puts aside the uncertain risk of an official actually being apprehended on a trip abroad, other states may become reluctant to receive Israeli officials because of the possibility of being asked to execute a warrant during an official visit.

It is of course beyond the mandate of this Task Force to make recommendations for pragmatic options for Israeli engagement, but the United States plainly has a keen interest in these issues. Insofar as the Israeli reaction to the Court’s decision is concerned, there have already been strong public statements by senior Israeli officials, including for example statements by Prime Minister Netanyahu saying that “[w]e will fight this perversion of justice with all our might,” and by Israel’s Defense Minister that hundreds of Israelis could be subject to war crimes probes.  At the same time, however, it appears that an important Israeli goal has been to work toward persuading the ICC Prosecutor to deprioritize these cases.  This would seem consistent with statements in other press reports suggesting that Israeli officials do not in fact currently anticipate any immediate threats to senior Israeli political or military figures. 

If working toward deprioritization is in fact part of the Israeli strategy toward the Court, it would align with the general approach that the Task Force is recommending that the United States take with respect to the Afghanistan situation, and could thereby offer opportunities to proceed in ways that are mutually supportive. At the end of the day, the U.S. posture on the situation in Palestine will almost inevitably be more of a function of the direction of the Administration’s policy toward the Middle East peace process than of its ICC policy. Nevertheless, an approach based on prioritization would entail opportunities for the United States and Israel to work together constructively, of which the new Administration should avail itself.