US implicated as Israeli impunity nears its end

Protesters denounce a meeting between US Secretary of State Antony Blinken and Israeli defense minister Yoav Gallant in Washington, DC, on 25 March.

Michael Nigro SIPA USA

Israel’s decades of impunity are over, or so its leaders fear and are leaking reports to the media that war crimes arrest warrants are imminent in an effort to get its allies to thwart them.

The leaked rumors that members of Israel’s war cabinet – Prime Minister Benjamin Netanyahu, defense minister Yoav Gallant and the military chief Herzi Halevi – will soon be indicted may very well be credible.

Reuters reported on Monday that staff at Gaza hospitals – which over the past several months have been stripped of their ability to provide care and transformed into mass graves – were interviewed by International Criminal Court investigators.

It is possible that arrest warrants against senior Israeli officials have already been issued in confidentiality.

An unnamed “Israeli diplomatic source” protested the perceived silence of the Biden administration over the ICC to The Jerusalem Post.

That unnamed official’s anger at Joe Biden is misplaced.

Washington’s incantations declaring its “ironclad” support for Israel and Israel’s supposed right to self-defense should be understood as a declaration of preserving Israeli impunity at all costs.

Informing Israel’s panic over the ICC is the fact that it can only maintain its regime of settler-colonization, apartheid and occupation in Palestine with the support of the world’s sole superpower.

But that support is eroding due to widespread disgust towards Israel’s genocidal campaign in Gaza.

Decades of bipartisan support for Israel is viewed by many as a strategic liability from which the US gains little benefit – increasingly so as a desperate Netanyahu attempts to drag Washington into a catastrophic regional war.

The Biden administration’s hands-on role in Israel’s genocide in Gaza is a legal liability as well. ICC arrest warrants for Israeli war crimes could – and should – implicate US officials.

Barriers to justice

There are a number of barriers between senior Biden officials and justice at the ICC.

Karim Khan, the ICC chief prosecutor who has been dogged by accusations of bias towards powerful states, dropped investigations into war crimes allegedly perpetrated by US personnel in Afghanistan; the court’s Palestine file is headed by a British establishment figure and a former US military prosecutor; and American law authorizes the president to order military action to protect its nationals from prosecution and free them from arrest by the court.

Like Israel, the US is not a state party to the founding treaty of the ICC. But Palestine has acceded to the Rome Statute and the court has territorial jurisdiction over alleged crimes perpetrated in the West Bank and Gaza Strip.

Khan has said that the court also has jurisdiction over alleged crimes perpetrated by actors based in those territories, and he will likely also issue arrest warrants against Hamas leaders in relation to the 7 October attack.

While the US has had a contemptuous relationship with the ICC, as evidenced by the George W. Bush-era Hague Invasion Act, it has warmed up to the tribunal in recent years in support of its investigation of alleged Russian war crimes in Ukraine.

By doing so, Biden effectively recognized the ICC’s territorial jurisdiction in Ukraine – neither Russia nor Ukraine are state parties to the Rome Statute – and there is bipartisan support for the court’s investigation of Russian officials following that country’s February 2022 invasion.

The Pentagon opposed Biden’s order for the US government to provide intelligence to the court for its Ukraine investigation, maintaining the previous position of the US that the ICC should not exercise jurisdiction over nationals of non-state parties.

While accepting the court’s authority to investigate Russian officials, the Biden administration rejects its jurisdiction in the case of Palestine, as White House press secretary Karine Jean-Pierre told reporters on Monday.

The US will surely continue to undermine the ICC’s Palestine investigation in a variety of ways. But given its working relationship with the court it may prove difficult to impose economic sanctions on the chief prosecutor and other senior personnel in the event of arrest warrants against Israeli officials, like the Trump administration imposed on Khan’s predecessor.

In any case, the resulting US double standard position will surely be so huge as to be seen from outer space, as the Biden administration continues to provide cover for Israel’s atrocities in Gaza.

Israel breaches US law

Officials with four US bureaus have told Antony Blinken, the secretary of state, that Israel’s assurances that it is using American weapons in compliance with international law are not “credible or reliable,” according to an internal State Department memo reviewed by Reuters.

A national security memorandum issued by Biden in February requires Blinken to report to Congress by 8 May on the credibility of Israel’s assurances.

US law prohibits military assistance to a state that obstructs the delivery of humanitarian aid provided by Washington.

Officials with USAID, the State Department’s development agency, said in a confidential paper that Israel has breached that US directive.

A separate internal memo sent to Biden from State Department experts states that “Israeli-imposed administrative challenges are preventing the delivery” of humanitarian aid in Gaza. The subject line of that memo reads “Famine Inevitable, Changes Could Reduce but Not Stop Widespread Civilian Deaths,” according to the development publication Devex.

Additionally, a study by an independent task force on the application of the national security memorandum found “a clear pattern of violations of international law” by Israel in Gaza.

That nonpartisan group of experts, including former State Department and military officials, points to the systematic disregard of the fundamental principles of the laws of war such as launching attacks “despite foreseeably disproportionate harm to civilians and civilian objects.”

They also describe “wide area attacks without prior warnings in some of the most densely populated residential neighborhoods in the world” and direct attacks on civilians and civilian objects, “including those indispensable for the survival of the civilian population.”

DAWN, a human rights watchdog based in Washington, said that these recent reports “conclusively confirm that Israel’s conduct impeding and blocking humanitarian aid has triggered the legal requirement to halt military aid,” irrespective of Blinken’s upcoming report to Congress.

Blinken, who just reneged on the blacklisting of an Israeli military unit determined by the Biden administration to have committed “gross human rights violations” against Palestinian civilians, will ignore DAWN’s recommendations too.

But further action by the ICC and the UN’s World Court, also based in The Hague, will trigger global sanctions against Israel, whose days of impunity are numbered.


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Maureen Clare Murphy

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Maureen Clare Murphy is senior editor of The Electronic Intifada.