Biden Should Support the ICC Probe into War Crimes in Israel/Palestine

A Palestinian father and his children in front of the ruins of their home in Silwan, occupied East Jerusalem, which was destroyed by Israel. November 2019. (Photo: Faiz Abu Rmeleh/Activestills.org)

By George Bisharat

Prosecution and persecution are not the same thing, although it is a standard dodge of the guilty to claim otherwise.

That appears to be so of Israel’s protest against an investigation by the International Criminal Court (ICC) announced recently into possible war crimes committed by Israel in the occupied Palestinian Territories. Predictably, Israel’s Prime Minister Benjamin Netanyahu attacked and smeared the ICC while vowing to resist its work. While this is no surprise coming from Netanyahu, it is distressing that the Biden administration has joined him in opposing the ICC investigation.

In response to news of the ICC probe, Secretary of State Antony Blinken tweeted “The United States firmly opposes” the court’s investigation and vowed to continue “opposing actions that seek to target Israel unfairly.” California’s former Attorney General and Senator, now Vice President Kamala Harris, in a call with Prime Minister Netanyahu reiterated the Biden administration’s opposition to the ICC’s attempts to exercise its jurisdiction over Israeli personnel. President Biden has yet to rescind sanctions imposed against ICC staff by the Trump administration to deter investigation of Israel.

These pronouncements follow other troubling Biden administration statements — for example, a vow to shield Israel from accountability at the United Nations and to combat the boycotts, divestment, and sanctions (BDS) movement for Palestinian rights — that undermine President Biden’s pledge to support human rights as a core principle of our foreign policy.

Israel has a lengthy history of human rights abuses against Palestinians and other violations of international law going back to its founding in 1948. They include torture, assassinations and other unlawful killings, collective punishment in various forms, home demolitions, imprisonment without trial, denial of refugee rights of return, banishments, seizure of Palestinian land for Jewish settlements, targeting civilians and non-military infrastructure, and more.

Preliminary statements from Ghanaian ICC prosecutor Fatou Bensouda outlined four possible areas of investigation: 1) the Israeli military’s killings of civilians and destruction of civilian property in Gaza in 2014; 2) Hamas rocket fire from Gaza into civilian areas in southern Israel in the same period; 3) Israeli sniper fire that killed more than 200 Palestinians and wounded and maimed thousands more in Gaza during the “Great March of Return” demonstrations in 2018; and 4) Israel’s transfer of its settlers into the West Bank.

Hamas (The Islamic Resistance Movement and de facto governing party in Gaza) has welcomed the ICC investigation while defending its rocket fire against Israel as “legitimate resistance.”

Israel’s alarm over the investigation is doubtless heightened by increasing global recognition that it presides over a discriminatory regime privileging Jews over Palestinians in virtually every sphere of life in all of the territory under its control. This was exemplified recently in who receives the COVID vaccine. Israel has fully vaccinated more than 40% of its own population while rationing the tiniest proportion to the 5 million Palestinians in territories Israel effectively controls. Jews and Palestinians in the West Bank live in segregated communities, travel on separate roads in cars bearing license plates of different colors and are subject to different legal systems.

B’Tselem, one of Israel’s most respected human rights organizations, recently proclaimed that “…the entire area between the Mediterranean Sea and the Jordan River is organized under a single principle: advancing and cementing the supremacy of one group — Jews — over another — Palestinians” and concluded, “This is Apartheid.”

Apartheid is a crime under the founding statute of the ICC. Unlike discrete instances of possible war crimes committed by Israeli soldiers, both apartheid and Israel’s settlement program are systemic in nature, and therefore implicate Israeli civilian leadership along with military personnel. Netanyahu may find himself facing arrest abroad as well as at home.

Seemingly undeterred, Prime Minister Netanyahu has just concluded an electoral pact with Jewish Power, an extreme right-wing, virulently racist party advocating violence against and expulsions of Palestinians.

Having just endured a harrowing challenge to the rule of law in the United States, we, above all, should be particularly insistent that no person nor nation should be above the law. President Biden and Vice President Harris’s coddling of Israel’s right government makes a mockery of liberal and progressive values which they were elected to uphold.

We should support the ICC investigation as a positive step toward justice and peace in a region that sorely needs both.

George Bisharat is the Honorable Raymond L. Sullivan Professor of Law at UC Hastings College of the Law in San Francisco, and a former legal consultant to the Palestinian Legislative Council.

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