By J C Suresh
U.S. Secretary of State Michael R. Pompeo has expressed opposition to International Criminal Court (ICC) Prosecutor Fatou Bensouda’s announcement that she “has concluded her preliminary examination into the so-called ‘situation in Palestine’ and asked the ICC judges” to confirm that the Court may exercise jurisdiction over the West Bank, East Jerusalem, and Gaza.
“By taking this action, the Prosecutor expressly recognized that there are serious legal questions about the Court’s authority to proceed with an investigation,” said Pompeo.
“We firmly oppose this and any other action that seeks to target Israel unfairly. As we made clear when the Palestinians purported to join the Rome Statute, we do not believe the Palestinians qualify as a sovereign state, and they therefore are not qualified to obtain full membership, or participate as a state in international organizations, entities, or conferences, including the ICC,” the U.S. Secretary of State added.
The UN General Assembly voted in favour of giving Palestine non-member observer status in 2012. Reacting on Twitter, the Israel Foreign Ministry said: “we utterly reject the Prosecutor’s decision and urge other countries to do so”.
Since beginning of 2019, Palestine has been chairing the Group of 77 (G77), meanwhile comprising 134 countries including China. The decision to elect Palestine as 2019 Chair was taken in September 2018 by the G77 foreign ministers.
The ICC Prosecutor said: “The preliminary examination into the Situation in Palestine has concluded with the determination that all the statutory criteria under the Rome Statute for the opening of an investigation have been met… I am satisfied that there is a reasonable basis to proceed with an investigation into the situation in Palestine.”
While stressing that “war crimes have been or are being committed in the West Bank, including East Jerusalem, and the Gaza Strip”, she said she believes that “potential cases arising from the situation would be admissible” and that there were “no substantial reasons to believe that an investigation would not serve justice”.
Ms. Bensouda explained that she would not seek the Pre-Trial Chamber’s authorization before opening an investigation as Palestine itself had made the referral.
But considering the “unique and highly contested legal and factual issues” attached to the situation, namely, “the territory within which the investigation may be conducted”, she deemed it necessary to rely on article 19(3) of the Statute to resolve this specific issue.
However, the Department of State in a press release on December 20 reiterated the “longstanding objection” of the U.S. “to any assertion of ICC jurisdiction over nationals of States that are not parties to the Rome Statute, including the United States and Israel, absent a referral from the UN Security Council or the consent of such a State”.
It added, while the United States respects the decision of those nations that have chosen to join the ICC, in turn the Department of State expects that the decision on the part of the U.S. and Israel “not to join and not to place our personnel under the court’s jurisdiction will also be respected”.
The press release concluded: “The United States remains deeply, firmly, and consistently committed to achieving a comprehensive and lasting peace between Israel and the Palestinians. The only realistic path forward to end this conflict is through direct negotiations.”