Israel & the International Criminal Court

""Dear President Biden and Secretary Blinken:

We are writing to implore the White House and the State Department to uphold longstanding law regarding the threat posed to American soldiers and our allies by the misuse of the International Criminal Court. These are commitments that we as a Congress have made to the American people, on a bipartisanbasis, and repeatedly enacted over many years.

Most recently, when Congress passed the Consolidated Appropriations Act of 2021[1] with a large bipartisan majority in both Houses, we again specifically included language forbidding funding assistance for the Palestinian Authority (PA) if they were to violate either of two conditions:
(1) if they were to initiate an International Criminal Court (ICC) judicially authorized investigation, or
(2) if they were to actively support such an investigation into alleged crimes committed against the Palestinians by Israel.[2]

We believe that this type of unilateral lawfare flies in the face of American objectives to help both parties achieve a negotiated, lasting, and comprehensive peace. Such language clearly warned of the ramifications should such action be taken and has been a part of our appropriations process since 2014,[3] with massive bipartisan consensus every year.

Unfortunately, the PA has unequivocally violated the first condition of that provision by, among other things, submitting a formal referral to the ICC in 2018.[4] The PA has indisputably violated the second condition by its public and official statements,[5] repeated submission of purported evidence and materiel to the ICC, and official visits and communications with the ICC Prosecutor and staff, actively in support of the Court's investigation.

As we enter a new administration, we strongly believe, on a bipartisan basis, that it is imperative to continue to uphold the established law of the land. Those commitments include barring any funding assistance for the PA, as well as the continued closure of the Palestinian Liberation Organization's mission in Washington, D.C. That mission was shuttered in 2018 in compliance with the law prohibiting such an office, in light of the fact that the President was obviously unable to certify that 'the Palestinians have not initiated or actively supported an ICC investigation against Israeli nationals for alleged crimes against Palestinians'.[6] Accountability and respect for U.S. law is, of course, a linchpin of any successful American foreign policy.

As you know, the United States is not a party to the Rome Statute of the ICC, and neither is our ally Israel. Administrations of both parties have feared the court's politicization and misuse. Those fears were borne out last year when, in an open attack on our national sovereignty, the ICC initiated an investigation into American soldiers.[7] In the last month, the Prosecutor and the Pre-Trial Chamber of the Court have proceeded to approve and open an investigation of our closest ally, Israel. The move is an attack on the fundamentals of international law, including respect for consent, sovereignty, and the concept of complementarity in the case of countries, like the United States and Israel, that are governed by the rule of law.

The ICC move concerning Israel, and the PA's active support, initiation, participation and encouragement of it, are major impediments to the peace process and America's strong commitment to a negotiated settlement. It also has serious negative implications for Americans. As Palestinian Prime Minister Dr. Mohammad Shtayyeh remarked on Palestine TV in March of this year, "...if Israel is in fact indicted in the ICC, American companies and organizations could be taken to court as well for helping Israel..."[8]

We recognize and commend your administration's firm initial stance against this perversion of justice.[9] At the same time, it is equally important to adhere firmly to established law that already provides an unambiguous response to efforts to use the ICC to challenge our sovereignty, our defense, and that of our ally Israel. Invoking a court that was once envisaged as a vital response to the Holocaust to now criminalize its victims and their descendants is an affront that will not be tolerated by the United States of America."

"Dear Mr. Secretary:

We urge you to continue your strong support of Israel, and we commend your recent statements denouncing the International Criminal Court's (ICC) Pre-Trial Chamber and the ICC Office of the Prosecutor for decisions to authorize and officially proceed with an investigation for alleged crimes in the West Bank, Gaza, and East Jerusalem. While we support the ICC's stated goal of ensuring accountability for the gravest crimes of concern to the international community, we are concerned that the Court's recent actions regarding the "Situation in Palestine" have inappropriately infused politics into the judicial process.

The ICC does not have legitimate territorial jurisdiction in this case. As articulated by State Department Spokesman Ned Price in response to this ICC decision, "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 U.N. Security Council." Israel is not a signatory to the Rome Statute, and therefore has not consented to the ICC's jurisdiction. Furthermore, ICC rules prohibit it from prosecuting cases against the citizens of a country with a robust judicial system willing and able to prosecute atrocity crimes committed by its personnel and officials. The ICC's mandate should not supersede Israel's robust judicial system, including its military justice system.

To avoid these limitations, the ICC has asserted jurisdiction in this investigation by deciding that the West Bank, Gaza, and East Jerusalem belong to the state of "Palestine," which acceded to the Rome Statute in 2015. We strongly oppose this decision. "Palestine" does not meet the criteria for designation as a state, and the delineation of the boundaries of any future Palestinian state is a political decision that must be determined through negotiations between Israel and the Palestinians. It is not within the authority of the ICC to accept or deny any party's claims to these disputed territories, nor has the Court ever before formally investigated allegations taking place in disputed territories. This unprecedented action by the ICC's Pre-Trial Chamber unfairly targets Israel, biases any subsequent investigation or trial, and hinders the path towards regional peace.

The ICC's Pre-Trial Chamber's decision constitutes a dangerous politicization of the Court and distorts the purposes for which the Court was established. As the world's only permanent international criminal tribunal, the ICC is intended as a court of last resort for the prosecution of the most serious atrocities, including war crimes, crimes against humanity, and genocide. The Pre-Trial Chamber's ruling creates an exception for the Court to investigate Israel, even while it is unable or unwilling to address some of the most urgent human rights cases in the world today, including those in Iran, Syria, and China.

Accordingly, we believe that the United States should stand in full force against the ICC's Pre-Trial Chamber's decision to authorize an investigation into alleged crimes in the West Bank, Gaza, and East Jerusalem and the ICC Prosecutor's decision to proceed with such an investigation. We also urge you to work with like-minded international partners to steer the ICC away from further actions that could damage the Court's credibility by giving the appearance of political bias. We ask that you give this matter your full attention and that you continue to defend Israel against discriminatory attacks in all international fora."

"Dear Mr. Secretary:

We urge you to continue your vigorous support of Israel as it faces the growing possibility of investigations and prosecutions by the International Criminal Court (ICC). Neither the United States nor Israel are members of the ICC. ICC actions currently underway could lead to the prosecution of Israeli nationals despite the fact the ICC does not enjoy legitimate jurisdiction in this case. Both Democratic and Republican administrations have refused to join the Court in part because they feared its politicization and misuse.

While we support the ICC's stated goal of ensuring accountability for the gravest crimes of concern to the international community, we are concerned that the Court's recent actions regarding the "Situation in Palestine" have infused politics into the judicial process. Specifically,

we are troubled by Prosecutor Fatou Bensouda's December 20, 2019 announcement that, following a five-year preliminary examination of the situation, she established "a reasonable basis to proceed with an investigation" into crimes by Israelis and Palestinians. Prosecutor Bensouda also seeks a ruling by the ICC's Pre-Trial Chamber to confirm whether the Court has jurisdiction over territories such as the West Bank, including East Jerusalem, and Gaza.

We believe the Prosecutor's decision to investigate the Israeli-Palestinian situation and request to the Pre-Trial Chamber to determine the Court's jurisdiction over disputed territories constitutes a dangerous politicization of the Court and distorts the purposes for which the court was established. As the world's only permanent international court, the ICC is intended as a court of last resort for the prosecution of the most serious international crimes. The ICC can only consider allegations brought to it by states, yet "Palestine" does not meet the criteria to qualify for that designation. The ICC has never formally investigated any accusations within disputed territories; doing so now unfairly targets Israel. Additionally, ICC rules prohibit it from prosecuting cases against a country that has a robust judicial system willing and able to prosecute war crimes of its personnel. Therefore, the ICC's mandate should not supersede Israel's robust judicial system, including its military justice system.

By accepting Palestinian territorial claims over the West Bank, East Jerusalem, and Gaza, the Prosecutor is making a political judgment that biases any subsequent investigation or trial. Contrary to Prosecutor Bensouda's request to the Pre-Trial Chamber, the ICC does not have a mandate to determine whether the relevant territories are part of the State of Israel or occupied Palestinian lands. Establishing the boundaries of any future Palestinian state is a political decision that must be determined through negotiations between Israel and the Palestinians. Any ICC determination regarding its jurisdiction over the disputed territories or investigation of Israel would further hinder the path to peace. Moreover, politicizing the Court in this way could further weaken and undermine the ICC.

Accordingly, we believe that the United States should stand in full force against any biased investigation of Israel. We ask that you give this matter your full attention and offer the State Department's support for Israel."

"Section 1003 of the Anti-Terrorism Act of 1987 (22 U.S.C. 5202) is amended-
(1) by striking 'It shall be unlawful' and inserting '(a) In general.-It shall be unlawful'; and
(2) by adding at the end the following:
Waiver.-Notwithstanding any other provision of law,... the President may waive for a period of not more than 6 months the provisions of subsection (a) if the President determines and certifies in writing to Congress, not later than 45 days before the waiver is to take effect, that-
...
(B) the Palestinians have officially ceased to be members of the International Criminal Court (ICC) and have withdrawn from the Rome Statute;
(C) any preliminary examination or ongoing investigation against Israel, the Government of Israel, the Israeli Armed or Security Forces, or any Israeli national initiated by, or on behalf of, the Palestinians, or referred to the ICC by a state party, the United Nations Security Council, or a Pre-Trial Chamber has been withdrawn and terminated;"

"Notwithstanding any other provision of law, no amounts may be obligated or expended to provide any assistance, loan guarantee, or debt relief to the Palestinian Authority, or any affiliated governing entity, until the Palestinian Authority withdraws its request to join the International Criminal Court."