Where Do Palestinians Go to Redress Israeli Abuses? U.S. Rejects International Criminal Court Solution
By: John Mason/ Arab America Contributing Writer
The Palestinians are attempting to gain support from the International Criminal Court in redressing crimes perpetrated on them by the Israeli state. The Biden administration does not accept this approach, saying that Palestine has no standing, since it is not a sovereign state. Here we review the argument for supporting the Palestinian quest for accountability this recognized Court.
A Reminder of Biden-Harris Commitments to the Palestinians
In November, following Biden’s election to the presidency, Arab America wrote about ten Biden-Harris commitments to Arabs, Palestinians, and Muslims around the world. One of the big promises was that “Biden will work to ensure that Palestinians and Israelis enjoy equal measures of freedom, security, prosperity, and democracy.” The new team said it would oppose annexation and settlement expansion and that Biden would continue to oppose both. One promise specified that the new President would undo the Trump-instigated annexation of over 30% of the Israeli-occupied Palestinian territory, a process that seems to be underway.
An important promise that has already been enacted by the Biden-Harris team is to restore economic and humanitarian assistance to the Palestinians. The one promise most closely related to the International Criminal Court (ICC) case against Israel is the Biden administration policy of grounding its policies in a commitment to a two-state solution. That would mean Israel and a future viable state of Palestine would live together in peace, security, and mutual recognition. While that solution is still on the President’s agenda, it is looking less and less likely to many observers.
In the context of Israeli dominance over Palestinians and the U.S. policy denying Palestinians any route to counter Israeli violations, there must be some avenue of redress. The ICC proposes to investigate suspected war crimes since 2014 by Israeli forces and Hamas during the conflict in Gaza, along with Israel’s settlement actions in the West Bank, including East Jerusalem.
At a recent press conference at the U.S. State Department, the subject of Palestinian rights became clear. A story about AP reporter Matt Lee’s grilling the State Department spokesperson, reported in the publication Mondoweiss, underscores the weakness of the Palestinian position. Lee questioned the spokesperson over and over, “where do Palestinians go?”
‘Where do Palestinians go for accountability?’ Justification for International Criminal Court Intervention
In responding to Matt Lee’s repeated questioning, State’s Ned Price used the ruse of bait and switch. Price said that the ICC has no jurisdiction over Israeli personnel involved in suspected abuse of Palestinians. According to Mondoweiss, Price responded, “The Palestinians do not qualify as a sovereign state.” But Matt Lee held on tenaciously to his question, “Considering your position on the Palestinians now, so where – where do the – where should the Palestinians go to get accountability for what they claim to be problems? To Israeli courts? Where do they go?” State’s reply weakly noted that the U.S. always supports human rights.
In the American political arena, especially on the left, there is growing support for the ICC action. Both Senator Bernie Sanders and Representative and Palestinian American Rashida Tlaib have come out in its support. Tlaib addressed the issue head-on: “No one is above the law. The ICC has the authority and duty to independently and impartially investigate and deliver justice to victims of human rights violations and war crimes in Palestine and Israel. The U.S. should not interfere with its ability to do so.” However, some critics suggest that the ICC suffers from a credibility issue, in that it is weakened by its accessibility to accused individuals.
Palestine advocates blast Biden administration for scolding ICC
In responding to the State Department’s put down of the ICC, Middle East Eye criticized the U.S. official position, noting that “The whole issue is that Palestinians are not being considered in this equation. The only thing that’s being considered is Israel.” Thus, Palestinians are criticized just for trying to seek justice through international forums such as the ICC. Palestinian American legal expert, Jonathan Kuttab, in responding to the State Department’s position, noted, “the administration was not merely questioning the methods Palestinians were using to fight for their rights; it was implying that Palestinians don’t have any rights at all.”
Some analysts suggest that the U.S. succumbed to the Netanyahu regime’s criticism of the ICC role, knowing that proving Israeli war crimes was much easier than achieving Palestinian statehood. Thus, the question of Palestine’s right to call on the ICC was questioned because Palestine is technically not a state. Again, according to legal expert Kuttab, “The settlements are clearly illegal. There’s no question. Any international forum that looks at the facts – the Israelis are guilty of a grave breach of the Geneva Convention, of war crimes and crimes against humanity.” Furthermore, Kuttab noted, “The Fourth Geneva Convention explicitly states the occupying power cannot ‘deport or transfer parts of its own civilian population into the territory it occupies.’”
Let the ICC do its Job
Even though Palestine is not a sovereign state, namely because the U.S. and Israel, under the prolonged peace process, have not allowed it to become one, it nevertheless has the right to pursue with the ICC suspected war crimes against it. In this sense, murder is murder, whether it has occurred in a state or a non-state. In a +972 Magazine article, it questioned whether a Palestinian state to emerge under Israeli and U.S. auspices would ever be free of Israeli domination. So, an independent Palestinian link with the ICC would in effect give it some clout outside the discretion of Israelis and Americans.
The Palestinian Authority, in pursuing its goal of statehood, had previously turned to the United Nations. It was specifically in Palestinian leadership’s seeking out the UN in establishing a state based on 1967 borders that assistance was requested. This is exactly the same goal that Washington had supported from the beginning, but from which it has been distancing itself now for years, slowly but surely.
According to +972 Magazine, “The ICC, which is facing similar threats and attacks, is now one of the last forums keeping the notion of a Palestinian state alive.” One constraint to a successful conclusion of the ICC investigation, which has not yet begun, however, is that it could take years for it to unwind much less conclude. And, that assumes it can survive the many attacks on it as an honest broker. As +972 Magazine concludes, “Still, in spite of their daunting prospects, many Palestinians cannot help but hope that the court’s involvement will help to do what the world should have done long ago: obstruct Israel’s deepening apartheid, deter another vicious Gaza war, and — dare they say it — bring some justice to the victims of state crimes.”
To let the ICC do its job is one way of testing the sincerity of the Biden administration’s commitment to a sovereign Palestine. If it follows Israel’s lead, though, then the result will only be some vague Palestinian entity that lacks independence and which remains in submission to the Israeli state. So, “step back and let the court do its job.”
References
“10 Commitments of Biden-Harris to Arabs, Palestinians, and Muslims around the World,” Arab America, 11/11/2020
“Where do Palestinians go for accountability?’ AP asks a dozen times as State Dep’t flounders,” Mondoweiss, 3/5/2021
“’Sickening’: Palestine advocates slam Biden administration for rebuking ICC,” Middle East Eye, 4/4/2021
“Biden should let the ICC do its job,” +972 Magazine, 2/9/2021
John Mason, PhD., who focuses on Arab culture, society, and history, is the author of LEFT-HANDED IN AN ISLAMIC WORLD: An Anthropologist’s Journey into the Middle East, New Academia Publishing, 2017. He did fieldwork in an east Libyan Saharan oasis and has taught at the University of Libya-Benghazi, Rennselaer Polytechnic Institute in New York, and the American University in Cairo. John served with the United Nations as an official in Tripoli, Libya, and consulted extensively on socioeconomic and political development for USAID, the UN, and the World Bank in 65 countries.
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