US opposition to ICC probe undermines its claim to moral leadership

US officials were quick to oppose the International Criminal Court (ICC) prosecutor Fatou Bensouda’s decision to open an investigation into alleged war crimes committed in the Palestinian Territories since 2014. Secretary of State Antony Blinken said the US “firmly opposes and is deeply disappointed” by the court’s probe, adding 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.”

A day after Bensouda’s announcement US Vice President Kamala Harris called Israeli Prime Minister Benjamin Netanyahu to reaffirm US opposition to the ICC’s probe of possible war crimes in the Palestinian Territories, according to the White House. Netanyahu condemned the planned probe as “pure anti-Semitism”.

The proposed investigation puts the Joe Biden administration in a difficult position. On the one hand, Biden had always supported the international tribunal and its role in defending human rights. Immediately after his election, there were calls for him to rescind his predecessor’s executive order to sanction ICC officials for the decision last year to accept a Palestinian appeal to look into war crimes committed by Israel in the 2014 war on Gaza and in the Great March of Return protests in 2018-19. The investigation will also cover Israel’s building of illegal settlements in the West Bank and East Jerusalem.

Last February, more than 70 non-governmental organisations, faith-based groups and academic institutions called for the Biden administration to repeal ICC sanctions. In an open letter to the White House the signatories said that the US government’s support for the ICC could help secure justice for victims in situations from Myanmar to Darfur, just as it helped facilitate the February 4 historic conviction of a former leader of an armed rebel group for war crimes and crimes against humanity in northern Uganda.

The Biden administration had praised the ICC for convicting Dominic Ongwen, a commander of the Lord’s Resistance Army, for war crimes committed in Uganda in the early 2000s. Its rejection of a probe into war crimes committed in the Palestinian Territories is based on a shaky argument that the ICC has no jurisdiction there and that Palestine is not a state. The investigation could end up indicting top Israeli officials and senior military officers.

Biden’s failure to lift sanctions on the ICC has raised questions about his claim last month that his administration supports multilateralism, shared democratic values, human rights and the rule of law. It would be difficult for him to reconcile his defense of these values while maintaining sanctions on the ICC. What is also contradictory is the fact that the US opposition to a probe in Palestine does not offer an alternative for the Palestinians to seek justice.

In 2009 a United Nations Human Rights Council (UNHRC) team headed by Richard Goldstone investigated the 2008-09 Israeli war on Gaza and issued a report that accused both the Israel Defence Forces and Palestinian militants of war crimes and possible crimes against humanity. Israel refused to cooperate with the investigation, citing anti-Israel bias in the UNHRC. More than 1,400 Palestinians were killed, at least half of whom were civilians, and 13 Israelis, three of whom were civilians, died in that confrontation.

While the report was buried, ironically at President Mahmoud Abbas’ request, Israel continued to violate international law and UN resolutions in the occupied territories. Any move to make it accountable is immediately rebuffed and labeled as anti-Semitic. And when a US Department of State spokesperson was asked by a reporter this week where should the Palestinians go to find justice if not to the ICC he could not give an answer.

Backing the two-state solution and a negotiated settlement is not enough to bring justice to the Palestinians. Even as Israel puts pressure on friendly governments to sanction the ICC, it continues to build and expand illegal settlements in East Jerusalem and the West Bank, demolish Palestinian homes and expropriate Palestinian lands making the two-state solution virtually impossible to implement.

And while analysts believe that the Middle East peace process will not be a priority for the Biden administration, the ICC probe and the controversy surrounding it will drag the White House into taking a position that can only be described as a double standard. Biden’s defence of universal human rights, democracy and rule of law will always be challenged by an arrogant Israeli government that treats Palestinians as sub-humans. It will continue to act with impunity so long as the West looks the other way when it comes to Israeli actions in the Palestinian Territories.

The fact of the matter is while the ICC’s potential investigation will take years to conclude; the US must stop giving Israel a special status by preventing any international probe into its actions. What is more concerning is that Israeli violations continue even as it challenges the ICC’s intent. To give credence to any peace process the West must stop its hypocrisy and double standards and make Israel accountable.

Osama Al Sharif is a journalist and political commentator based in Amman