Report

Palestinian Push for ICC Investigation Into Israel Could Damage Court

ICC supporters question depth of Obama administration’s commitment to the International Criminal Court.

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The Palestinians’ decision to join the International Criminal Court aims to put Israel on notice that its troops could be hauled into an international courtroom for prosecution for killing Palestinian civilians. But the move has also threatened to shatter Washington’s fragile consensus behind the Hague-based tribunal itself.

“The Palestinians’ decision will undoubtedly harden congressional resolve against active participation in the court,” said Peter Yeo, president of the Better World Campaign, a pro-U.N. advocacy group funded by media mogul Ted Turner.

The court’s champions in the United States and Europe say they fear the Palestinian action threatens to revive latent hostility toward the court, particularly among conservatives and pro-Israel members of the U.S. Congress. “This is bad; it’s bad for the ICC in any event, which is why we wanted to avoid it,” said one European diplomat. “Nobody wants a politicized debate over the next decade in Washington that could undermine the credibility of the work of the ICC.”

So far, U.S. congressional critics have directed their criticism primarily at the Palestinians, warning of consequences for any push to have the ICC prosecute Israeli forces, including the possible cutoff of aid to the Palestinian Authority, which receives about $400 million annually in U.S. assistance.

The Obama administration has not threatened any direct reprisals against the Palestinians.

But State Department spokeswoman Jen Psaki on Monday characterized the Palestinian action as “entirely counterproductive,” saying that it “badly damages the atmosphere” for reviving a peace process that remains stalled.

At this stage, it remains unclear whether the criminal court’s chief prosecutor, Fatou Bensouda, will accept requests by the Palestinians or the Israelis to pursue criminal prosecution of alleged crimes. The saga, nevertheless, could present a politically sensitive test of the White House’s commitment to the court. Will it side with its ally Israel in challenging the tribunal’s legitimacy to prosecute Israeli soldiers? Or will it maintain support for a court that has served American goals, regardless of Israeli sensibilities?

The United States and Israel have historically been leery of a powerful International Criminal Court, fearing it might conduct politically biased prosecutions of their forces. Yet while the United States has never joined the court, the Bush administration ultimately came around to seeing its utility in pursuing criminal cases against anti-American despots. President Obama has offered even greater backing, providing political and indirect financial support for ICC investigations. But the Palestinian move risks reviving open opposition to the court’s aims.

The current crisis arose last Wednesday, when Palestinian President Mahmoud Abbas signed an accession letter to the treaty establishing the court, raising the prospect of future prosecutions against Israeli authorities, as well as Palestinian militants, for alleged excesses in the ongoing violence.

Israeli Prime Minister Benjamin Netanyahu said he would never allow Israeli soldiers and officers “to be dragged into the International Criminal Court in The Hague.” He announced plans to withhold over $120 million in tax and customs revenues Israel collects each month on behalf of the Palestinian government. The State Department, meanwhile, has urged both sides to back down.

The Palestinian move comes just weeks after the International Criminal Court announced that it is conducting a preliminary inquiry into allegations that U.S. forces in Afghanistan abused and tortured detainees to determine whether there is sufficient evidence to press for a formal investigation. U.S. troops were exonerated once before: The prosecutor determined that a previous inquiry into allegations that U.S.-led forces committed war crimes in Afghanistan through airstrikes and night raids on Afghan homes “does not provide a reasonable basis to believe that the war crime of intentionally directing attacks against the civilian population … has taken place.”

Balkees Jarrah, counsel for Human Rights Watch’s International Justice Program, said the court’s preliminary examination of American detention practices in Afghanistan, coupled with the Palestinian move, could potentially strengthen congressional opposition to the court and weaken the administration’s resolve.

These two issues, she said, “might give the administration pause as far as how it sees the relationship with the court going forward.” But she said that while she anticipated a “clamor for the reversal” in the U.S. stance on the court, she is not convinced it will lead to an “actively hostile” attitude toward the court.

Congressional champions of the ICC still see the court as a valuable weapon against the world’s worst human rights violations. That could limit the fallout of the Palestinian move, said Yeo.

“There are strong bipartisan coalitions on the Hill focused on Darfur, Sudan, Congo, and the Central African Republic — countries where the ICC continues to play an important role,” he said. “These members might be reluctant to remove the ICC from the U.S. diplomatic toolbox to deal with these crises.”

The International Criminal Court came into force in the summer of 2002, the first permanent tribunal with a mandate to prosecute perpetrators of mass crimes, including war crimes and genocide. At the time, critics of the world’s premier criminal tribunal initially warned that the court could be used as a political weapon to constrain American and Israeli forces.

President Bill Clinton signed the treaty, known as the Rome Statute, during his final days in office, but only after negotiating key provisions aimed at shielding American nationals from possible prosecution.

President George W. Bush initially sought to undermine the court, authorizing John Bolton, then a senior State Department official, to issue a letter to the U.N. repudiating Clinton’s signature. And Bush’s envoy to the U.N., John Negroponte, threatened to shut down blue-helmet peacekeeping missions unless the U.N. Security Council offered a blanket exemption for American nationals from prosecution by the ICC.

But the Bush administration ultimately offered grudging support to the court. It withheld a veto of a 2005 Security Council resolution that opened the door to an ICC investigation into crimes in Darfur. That, in turn, ultimately led to the issuance of arrest warrants for Sudanese President Omar Hassan al-Bashir and other senior officials accused of genocide and other war crimes.

Over the years, the Obama administration’s relationship to the Hague-based court has been fickle.

For instance, the White House supported a U.N. Security Council resolution in 2011 triggering an ICC investigation into crimes by former Libyan leader Moammar Qadhafi. But when the Libyan strongman fell, the United States did little to pressure the pro-American government in Libya to cooperate with the ICC prosecutor’s requests to continue the investigation. Last month, the ICC’s chief prosecutor suspended an investigation into mass atrocities in Darfur, Sudan, claiming that she couldn’t count on the U.N. Security Council members, including the United States, to use their political muscle to ensure the court’s mandate was enforced.

While the Obama administration has not pressed Congress to ratify the ICC treaty, officials say they have worked to strengthen the court’s mission. They cite support for investigations into atrocities from Libya to Syria and North Korea. The United States, they note, has also offered rewards for the capture of accused perpetrators sought by the court, and pledged to work with the court to strengthen its witness protection program.

“For reasons that have been much discussed, the United States has not accepted the court’s jurisdiction,” Stephen Rapp, the U.S. ambassador-at-large for war crimes, recently told the ICC’s membership body. “Nonetheless, in this context of global challenges, the United States has worked with the ICC to identify practical ways to advance our mutual goals, on a case-by-case basis and consistent with U.S. policy and laws,”

But even those who have praised Obama administration support for ICC investigations have little faith that the White House will keep backing the court if it puts alleged Israeli war criminals in the docket.

“My own sense is, despite the rhetoric, the key policymakers in the administration see the ICC in transactional ways and are much less committed to it than ICC supporters would hope,” David Kaye, a former State Department lawyer and a professor at the University of California, Irvine, School of Law, told Foreign Policy. “I have a hard time believing that they would fight for the relationship in the face of a Palestine investigation.”

The Palestinian move comes after a particularly trying year for the Hague-based court, which was forced to drop its case against Kenyan President Uhuru Kenyatta, who was accused of fueling a spree of ethnic violence following Kenya’s 2007 presidential election and subsequently of interfering with the prosecutor’s case. It also shelved its long-standing genocide investigation of Sudanese President Bashir because of a lack of support from the U.N. Security Council and the refusal of governments to arrest him on his frequent foreign travels.

“The perception in Washington may be that the court is simply not worth fighting for, given its apparent weaknesses,” said Kaye.

Juan Vrijdag/ Getty Images

Colum Lynch is Foreign Policy’s award-winning U.N.-based senior diplomatic reporter. @columlynch

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