After much anticipation, the International Criminal Court (ICC) announced on February 5, 2021 that it has the authority to investigate alleged war crimes and crimes against humanity in the Occupied Palestinian Territories (OPT).
Unsurprisingly, Israel condemned the court's decision as antisemitic. The Biden administration was quick to join Israel's rejection of the court's jurisdiction.
The Biden administration has, therefore, effectively affirmed that, consistent with the policy of every US administration since 1967, it will not hold Israel accountable for violations of human rights and international law in the OPT.
Prompted by the support of the United States and other western powers for Israel's assault on the Gaza Strip in the summer of 2014, the State of Palestine in January 2014, signed the Rome Statute, which established the ICC, and lodged a declaration that triggered an investigation by the court into alleged crimes committed "in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014." Neither Israel nor the United States can appeal the court's decision because they are not signatories to the Rome Statute.
The UN General Assembly adopted the Rome Statute in 1998 by a vote of 120 to 7 with 21 abstentions. The seven "no" votes were China, Iraq, Israel, Libya, Qatar, the United States, and Yemen. Israel explained that it voted "no" because the list of war crimes the court is authorized to prosecute includes "the action of transferring population into occupied territory." Israel fears that the Rome Statue would consider Israeli civilian settlements in the OPT a violation of article 49 of the Fourth Geneva Convention.
After a lengthy preliminary investigation, the chief prosecutor of the ICC, Fatou Bensouda, asked the court to confirm that it has jurisdiction over the OPT. The court ruled by a vote of 3-1 (with a Hungarian judge voting against) that for its purposes, Palestine qualifies as a state whose territorial jurisdiction includes the West Bank, the Gaza Strip, and East Jerusalem.
It remains to be seen whether or not the international community, absent the United States, will lend diplomatic support to the court's decision and the implication that Israel and its citizens should be held accountable for violations of international law.
The Biden administration's rejection of the ICC's jurisdiction is part of its attempt to reassert its diplomatic monopoly over the long moribund Israel-Palestine "peace process." In a virtual speech to the UN Security Council, Acting UN Ambassador Richard Mills announced that the United States will resume diplomatic contacts with the Palestinians and contributions to UNRWA, the UN agency which provides aid to Palestinian refugees. Mills also proclaimed that the Biden administration is committed to a two-state solution to the question of Israel/Palestine, with a secure Israel alongside a "viable Palestinian state."
Mills's speech appears to signal abandonment of Trump administration policy on Israel/Palestine and a reversion to previously established US policy. But the Biden administration will continue some of the most damaging features of Trump-era policy.
At his confirmation hearing, Secretary of State Anthony Blinken declared that the United States will retain its embassy in Jerusalem. President Biden has announced a return to official US opposition to settlement expansion. But, as his administration's opposition to the ICC's assertion of its jurisdiction over the OPT indicates, Biden will, as all his predecessors have, seek to prevent the international community from holding Israel accountable for implanting some 650,000 Israeli-Jewish citizens in occupied East Jerusalem and the West Bank.
There have been no significant diplomatic contacts between Israel and the Palestinians since the failure of then Secretary of State John Kerry's attempt to achieve a final status resolution in 2013-2014. As his efforts were getting underway, Secretary Kerry testified before the House Foreign Affairs Committee that, "…the window for a two-state solution is shutting…I think we have some period of time – a year to year-and-a-half to two years, or it's over." On May 2, 2014, after the talks collapsed, Martin Indyk, President Obama's chief envoy, (anonymously) told the Israeli daily Yediot Aharonot that the principal reason for their failure was continued Israeli settlement expansion.
So, according to one high profile member of President Biden's cabinet, Special Presidential Envoy for Climate, John Kerry, the window for the two-state solution closed nearly seven years ago. The Biden administration, nonetheless, maintains that it is committed to a two-state solution, although it knows that Israeli Prime Minister Benjamin Netanyahu has undermined the viability of that solution by massive settlement expansion.
During 2020 Netanyahu's government approved at least 12,150 housing starts in West Bank settlements. They include 5,000 approved immediately after the Abraham Accords, which normalized Israeli relations with the United Arab Emirates and Bahrain, were signed. This constitutes the highest annual number of settlement housing starts since Peace Now began recording the figures in 2012.
The Biden administration, under the pretext of its commitment to Israeli security, continues the long established US policy of attempting to block efforts to hold Israel accountable for actions in the OPT that undermine its own declared objective of achieving a two-state solution. What explains this apparently incoherent policy?
First, President Biden would have to spend enormous political capital to mobilize the pressure necessary to gain Israeli acquiescence to anything resembling a two-state solution. Prime Minister Netanyahu, and several of the candidates who may succeed him after Israel's March 23rd elections, have made it clear that they oppose a contiguous and viable Palestinian state with control over its borders.
Second, President Biden would like to continue the Obama administration's stalled "pivot to Asia." Its foreign policy priorities are, as one of his advisers said, "China. China. China. Russia." In order to execute this pivot, the Biden administration will need to rely on its long-standing anti-democratic and human rights-violating regional client states to maintain order in the Middle East: Saudi Arabia, the United Arab Emirates, Egypt, Jordan, and Israel.
In the Middle East, the top Biden administration priority is reactivating the nuclear deal with Iran – the Joint Comprehensive Plan of Action. All of its principal regional client states oppose this. Therefore, the Biden administration will not press them unnecessarily on matters of human rights and international law.
One clear exception, if only rhetorical at this point, is President Biden's announcement that he is ending U.S. support for the Saudi-led war in Yemen, curtailing some arms sales, and removing the Houthis from the list of state sponsors of terrorism. The catastrophic war will not end immediately because the Saudis have enough weapons to continue fighting for some time.
These welcome and long-overdue steps on Yemen are the result of years of citizen mobilization and Congressional opposition to the war. They indicate that if enough Americans demand that our government pursue a more just foreign policy we can achieve some successes.
*Photo: US President Joe Biden speaks about the situation in Myanmar in the South Court Auditorium of the Eisenhower Executive Office Building in Washington, DC, February 10, 2021. (Photo by SAUL LOEB / AFP) (Photo by SAUL LOEB/AFP via Getty Images)