Congress enables Israeli impunity at ICC

Men pray near construction equipment

Palestinian farmers from Kafr Laqif village protest against Israel’s expropriation of their land in the occupied West Bank to build settlements, December 2019. Colonizing occupied territory is a war crime.

Ahmad Al-Bazz ActiveStills

Earlier this week, a bipartisan grouping of 69 United States senators sent Secretary of State Mike Pompeo a letter encouraging him to continue his “vigorous support of Israel as it faces the growing possibility of investigations and prosecutions by the International Criminal Court.”

The letter was spearheaded by senators Rob Portman, a Republican from Ohio, and Ben Cardin, a Democrat from Maryland.

This duo also teamed up to introduce the blatantly unconstitutional Israel Anti-Boycott Act during the previous Congress.

That legislation, which was defeated by a combination of Palestine solidarity groups and the American Civil Liberties Union, proposed criminalizing individuals acting on behalf of nonprofit organizations or companies to further a boycott for Palestinian rights in coordination with an international organization, such as the UN or European Union.

Metadata on the PDF copy of the letter linked from Portman’s website lists the document’s “author” as Ester Kurz, the legislative director of the powerful Israel lobby group AIPAC.

AIPAC backed a similar letter in the House, which also criticized the ICC for investigating US war crimes in Afghanistan.

Duplicitous claims

With their latest letter, Portman and Cardin have collaborated again to shield Israel from the consequences of its illegal actions.

The senators correctly note that the International Criminal Court’s “actions currently underway could lead to the prosecution of Israeli nationals,” but conclude incorrectly that “the ICC does not enjoy legitimate jurisdiction in this case.”

As the senators state later in their letter, ICC chief prosecutor Fatou Bensouda requested in December 2019 a ruling from the ICC’s pre-trial chamber confirming the extent of the court’s jurisdiction over cases emanating from the Israeli-occupied West Bank and Gaza Strip.

There is good reason to believe that the ICC does have jurisdiction over Israeli actions in the West Bank, including East Jerusalem, and the Gaza Strip.

In November 2012, the UN General Assembly voted to confer non-member observer status on the State of Palestine, enabling it to join international bodies and sign international conventions.

In January 2015, Palestine acceded to the Rome Statute, thereby becoming a member of the ICC and accepting its jurisdiction, and depositing a complaint with the court against Israeli actions in the West Bank and Gaza Strip.

The senators’ claim that the ICC does not have “legitimate jurisdiction” over Israeli actions against Palestinians is duplicitous.

One of the primary objections of the Obama administration and pro-Israel members of Congress to Palestine becoming either a full member or observer state at the UN was precisely this scenario: Palestine joining the ICC and holding Israel accountable in a venue beyond US reach.

In the 2016 consolidated appropriations bill, passed in December 2015, Congress itself recognized the implications of Palestinians seeking to hold Israel accountable in the ICC and attempted to leverage US aid to kill any such investigation.

The bill would cut off all US economic aid to the Palestinian Authority should “the Palestinians initiate an International Criminal Court (ICC) judicially authorized investigation, or actively support such an investigation, that subjects Israeli nationals to an investigation for alleged crimes against Palestinians.”

In addition, the senators’ letter is replete with spurious legal terms and mendacious claims against the ICC, all of which are designed to bolster Israeli impunity.

They repeatedly refer to occupied Palestinian territores as “disputed territories,” a legally baseless term of Israeli hasbara – propaganda – used to obfuscate Israel’s Fourth Geneva Conventions responsibilities toward Palestinians under military occupation.

The senators also falsely characterize the ICC investigation as a “dangerous politicization of the court” which “unfairly targets Israel.”

They further claim, contrary to all evidence, that Israel has a “robust judicial system willing and able to prosecute war crimes of its personnel.” All of these assertions recycle old canards against any effort to hold Israel accountable for its actions.

The senators also seek to downplay the gravity of the charges leveled against Israel in the ICC complaint. They state that the ICC is relegated to the “prosecution of the most serious international crimes,” implicitly discounting Palestinian claims.

However, the Rome Statute, defines as a war crime, “the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory.”

Israel’s colonization of Palestinian land and dispossession of Palestinians in the West Bank is a crucial component of Palestine’s ICC complaint, and war crimes are undoubtedly among “the most serious international crimes.”


Most embarrassingly, the senators demonstrate their ignorance of international law by confusing ICC legal jurisdiction over occupied Palestinian territories with potential future bilateral negotiations between Israel and the Palestine Liberation Organization to determine borders in a two-state resolution.

They argue that ICC jurisdiction in this case would constitute a “political judgment” which would “determine whether the relevant territories are part of the State of Israel or occupied Palestinian lands.”

However, the Palestinian complaint and ICC investigation have nothing whatsoever to do with the delineation of borders; rather, they seek to determine Israel’s potential war crimes within areas firmly fixed under international law and UN resolutions as occupied territory.

It is unclear exactly what the senators hope to achieve with this letter other than grandstanding, since the United States is already implacably opposed to the ICC holding Israel accountable.

Perhaps by signing this letter, the senators are virtue signaling their intentions to pursue even more punitive sanctions against Palestinians should the ICC investigation go to trial.




We, Marylanders, are certainly opposed to Cardin’s unjust and biased policies against the rights of Palestinians. Clearly, his actions warrant an investigation by human rights groups and “freedom of speech “ Constitutional lawyers and ICC.
He has definitely lost our vote, trust and respect.


The US has long been uneasy about the rule of international law as the limit to its hegemony. Republican and Democrat alike, US administrations demand the right to intervene militarily when they like where they like. As the US proxy in the Middle East, Israeli can more or less do no wrong. Its colonisation of the West Bank and Gaza keeps the Palestinians where the US likes them and ensures the Arab world understands that US power will not be messed with. The real danger in this is the provocation to violence, which, of course, is the US's tactic. Its military supremacy makes goading its enemies into violence a sound strategy. For the Palestinians, violence is a disaster. This is a problem we must solve peaceably. It must become an example to the world that the rule of force is over. The Palestinians are never more threatening to Israel than when they renounce violence and insist on peaceable means. They alone can't solve the problem. They have been deprived of the means. We must. The rest of the world must. We can do it without so much as a slap by raising a worldwide boycott of Israel. Crucial is to change public opinion in the US. It is already changing, especially among the young. Young US Jews are questioning the accepted views of their parents. Yet we shouldn't wait on the US. Across the globe young people are fired up over climate change. That blends into a demand for global economic and social justice. The well-placed idealism of these young people needs to be harnessed for the cause of Palestinian justice. When we win freedom for Palestine without the use of any violence, it will be a great step forward for world peace. The US and Israel are armed to the teeth but they have no weapons against our principles and commitment. They want violence because that allows them to win. Every one of us must stand firm for non-violent means of change. Consign the people of violence to the past. We have a great opportunity.


Agreed and seconded 100%. There is NO military solution here. Israel has (illegal, "unofficial" if barely so but real) WMDs including nukes and overwhelming military forces and superiority. Hamas'es weak, and ineffective but provocative rockets and Islamist violence only ever serve to give Israel a rationalising "excuse" - however poor and infuriatingly ignoring the underlying Occupation causes - to use its power to further destroy Palestinian lives, homes and seize more land.

This issue cannot successfully be resolved by force leaving non-violence the only hope for a successful resolution to the Palestinians plight. The sooner everyone realises this and Hamas, Islamic Jihad etc, renounce all use of violence and terror and voluntarily disarm transforming the conflict into one of Civil Rights where the Palestinians are clearly never the aggressors and seen to be demanding only reasonable basic human rights and not posing a military threat at all however pathetic, the better for everyone. Paradoxically perhaps but truly an unarmed non-violent Hamas and others will be far more formidable against Israeli bullying and brutality than a poorly armed Hamas and others ever could be. Palestinians going totally non-violent would transform this conflict from an unwinnable fight for the Palestinians into an unwinnable fight for the Jewish extremists and Likudniks.


So what? That makes them immune to international law and can do to other nations whatever they want with impunity?

I don't believe that the defeated Germans had signed on to the Kabuki theater that played out in the "Nuremberg Military Tribunals" either. The difference may be that the NMT was a mockery of legal proceedings, a sham, which drew strong criticism from several of the Americans who partook or observed the spectacle first hand.

But the US and Israel knows that they commit war crimes constantly and don't want to face any court over it. And why should they? Together they're too strong to be forced. Any attempt to kidnap (to put on trial), say Clinton or Dick Cheney or W Bush or Obama would lead to immediate war from the US. They gladly do it to others but the rules don't apply to them. Because they're special. Exceptional as they like to call it. They are simply the biggest and meanest bully in school. So I guess they CAN do whatever they want to other nations (well, most) with impunity.


Guess the subject line & user name already say it best but on the Occupied vs Disputed status issue surely its both? Occupied as well as disputed. There's a dispute over the status of the land because its been Occupied & because its been Occupied its legal status is now disputed. Not sure this helps much; sorry but still. Posting in case & hope it does.


US threatens ICC with ‘consequences’ if it acts on war crimes complaint against Israel filed by ‘fake’ Palestinian state.

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.

Neither Israel or the US are signatories to the ICC, because it is understood by the governments of both countries, that they both commit war crimes, in their quests to obtain their geopolitical agendas.

Josh Ruebner

Josh Ruebner's picture

Josh Ruebner is adjunct professor at Georgetown University, managing director of American Muslims for Palestine and author of Israel: Democracy or Apartheid State? and Shattered Hopes: Obama’s Failure to Broker Israeli-Palestinian Peace. The views expressed here are solely those of the writer and are not on behalf of any organization.