US opposes PA going to ICC as counterproductive, counter to peace

The US State Department said on Wednesday that the Palestinian Authority’s move on Tuesday to get the International Criminal Court to probe Israelis for alleged war crimes was counterproductive and not conducive to peace.

At a press briefing, spokeswoman Heather Nauert said, “Well, we have long believed that these types of actions are not conducive to peace. We are not a party to the International Criminal Court, as many of you know. We oppose the actions taking place against Israel at the International Criminal Court because we see that simply as counterproductive.”

“We have spoken about this many times before. Our position on this matter is well known. We oppose actions against Israel  [at the International Criminal Court] because it doesn’t help the cause for peace. And that is one of the priorities of this administration, getting the Israelis and Palestinians back to the table where they can have a good, concrete negotiation about the peace process going forward. And the ICC just doesn’t do that,” she added.

Nauert faced questions from the press about the US view of the PA’s meeting with the ICC and its submission of new complaints against Israelis.

On Tuesday, ICC Prosecutor Fatou Bensouda said she would not hesitate to criminally investigate alleged Israeli war crimes if required by the binding Rome Statute.

Her statement came after a meeting with PA Foreign Minister Riad Malki at The Hague on Tuesday, where he gave her a new submission about new alleged war-crimes issues and told her that further delay on her part would allow Israel impunity.

Malki and the PA accuse Israeli soldiers and officials of war crimes relating to the IDF’s killing of more than 100 Palestinians on the Gaza border over the last six weeks and regarding the 2014 Gaza War, and blame Israel for building 10,000 housing units in the West Bank and east Jerusalem as part of the settlement enterprise.

Following the Tuesday ICC press conference, Bensouda’s office issued a statement saying that complaints from the PA do not “automatically lead to the opening of an investigation. Should I, however, ultimately determine that the situation referred warrants an investigation in accordance with the statutory criteria,” she could proceed to open an investigation without needing approval from the International Criminal Court itself.

“There should be no doubt that in this and any other situation currently before my office, I will always take the decision warranted by my mandate under the Rome Statute,” she said.

The Israeli Foreign Ministry hit back at the PA, saying it views the push for an ICC war-crimes probe “with great severity… and as a cynical process with no legal basis.”

“The PA continues to exploit the ICC for problematic political purposes in place of acting to advance the diplomatic peace process,” a ministry statement said.

Further, the Foreign Ministry said that “it is preposterous that the Palestinians are doing this when they continue incitement to terror and to use women and children as human shields as camouflage for their violent attempts to harm the security of the citizens of Israel.”

The new submission Malki gave Bensouda focused on three areas: recent violence on the Gaza border, displacement of Palestinians by Israel and building new settlements in the West Bank and east Jerusalem.

Regarding recent Gaza border violence, the PA said the IDF had killed more than 60 Palestinians and injured thousands on May 14 alone “during peaceful demonstrations.”

It also said that since March 30, the IDF had “killed over 110 peaceful demonstrators and other protected persons, including two journalists, 14 children, and one paramedic.”

The PA did not mention Hamas’s admission that 50 of the Palestinians killed on May 14 were its members nor the IDF’s arguments that any peaceful demonstrations have been a cover for violent attacks on the IDF and the border wall.

Further, the PA said Israel’s “deliberate pattern of destruction and appropriation of civilian property” led it to “forcibly displace 3,861 Palestinians, including 1,960 children since June 13, 2014” – the start of the period that the ICC is reviewing.

Demolition of Palestinian houses is controversial even in Israel and often litigated in Israeli courts, though the PA did not distinguish between demolished terrorist houses or different categories of housing built on an unauthorized basis.

Finally, the PA said that in 2017 alone, Israel had “advanced plans for over 6,742 additional Israeli settler housing units,” all of which it considers illegal. Israel views the settlements as disputed and as a subject for diplomatic negotiations.

It is unclear how the ICC will determine the legality of Israeli settlements built since 2014. But in the ICC’s recent annual report, it cited the UN Security Council’s December 2016 declaration of Israeli settlements as illegal as a significant decision to consider.

Since January 2015, the ICC prosecutor has been exploring whether to open a full war-crimes criminal probe against Israelis and Palestinians.

Israel persistently claims that the ICC has no jurisdiction to deal with any of the issues since it is not a member of the ICC’s Rome Statute and since there is no state of Palestine fully recognized by the UN Security Council.

Meanwhile, Bensouda’s office has previously ruled that Palestine is a state for her purposes based on its recognition by the UN General Assembly, and any IDF actions taking place in Palestinian areas give the ICC jurisdiction regardless of whether Israel is a member of the statute.

Practically speaking, Israel has been quietly dialoguing with the ICC for years to convince it not to open a criminal probe, based on the idea that Israel investigates its own alleged war crimes, which under the Rome Statute bars the ICC from getting involved.

The ICC has moved slowly with its preliminary examination of the various war-crimes allegations, with no immediate decision expected even three-and-half-years after it opened. But some have thought that the ICC might accelerate its decision following an April 9 warning to Israel and Hamas about the Gaza border crisis.