ICC Israeli war crimes probe is first real test for Biden administration

Last Friday, as the pre-trial chamber of the International Criminal Court approved the Chief Prosecutor's request to open legal proceedings against Israel and Hamas on suspicion of committing war crimes in the West Bank, East Jerusalem and the Gaza Strip.

All Palestinian parties welcomed the ICC's decision, including Hamas, which said it would be willing to fully cooperate with the court and welcomed the application of international law to the conflict.

Israel's government, however, quickly went into panic mode, taking all kinds of measures to fight a prospective investigation into its conduct. Certainly a far cry from "nothing to fear if you have nothing to hide".  

Israel's pushback boils down to this: the ICC can investigate Hamas all it wants, "but hands off of our leaders and soldiers," as one senior Israeli lobbyist put it. This line is based on multiple talking points, all of which collapse upon examination.

However, the ICC prosecutes neither states nor ethnicities, but rather individuals

Israel's unfounded claims

First, Israel and its apologists advance an ideological and emotional argument that any ICC investigation into Israeli war crimes would be "pure anti-Semitism", as Netanyahu put it, "the court established to prevent atrocities like the Nazi Holocaust against the Jewish people is now targeting the one state of the Jewish people".

This appeal that a criminal's identity precludes accountability and provides a waiver for a committed crime is preposterous on many levels. For instance, Israel loves to showcase its demographic diversity and non-Jewish citizenry whenever called out for maintaining an apartheid or discriminatory regime against Palestinians.

At the same time, Israel's government now wants to selectively highlight its Jewish majority to delegitimise accountability. However, the ICC prosecutes neither states nor ethnicities, but rather individuals. Indeed, the court won't discriminate, for instance, between a Jewish Netanyahu and the non-Jewish Druze politician Ayoob Kara, who served as a Minister in Netanyahu's government and has been one of the fiercest proponents of Israeli settlements.

The second main argument is a legal and technical one; that the ICC cannot open an investigation, not because no war crimes were committed, but simply because the occupied territories are under Israel's jurisdiction, as Palestine is not yet a sovereign state.

So according to this Catch 22, until Palestinians realise statehood, it's okay for Israeli forces to brutalise them without consequences, while preventing them from ever getting an independent state.

Israel invoked the 1993 Oslo accords to argue that Palestinian criminal jurisdiction is circumscribed and doesn't apply to Israelis. But Oslo is merely an interim agreement that Israel has systematically breached into virtual obsolescence.

Read more: Panic in Israel after ICC move to investigate 'possible' war crimes in occupied Palestinian territories

Indeed, the ICC Prosecutor's office concluded that Oslo's goal was "to give effect to the Palestinians' right to self-determination," and that Israel consistently prevents this realisation, which outweighs the issue of Palestine not meeting the established criteria for statehood.

Furthermore, while Israel is claiming jurisdiction over the oPt - including Gaza which Israel claims to have left completely, it has simultaneously been denying responsibility for occupied Palestinians regarding Covid-19 vaccinations.

Finally, a pragmatic argument advanced by Israel's government is that progress towards ending the conflict and occupation will be harder to achieve if the architects of Israel's occupation are pushed into the corner, a point made recently by former US diplomat Dennis Ross.

Israel quickly espoused this argument, instructing its ambassadors to preach to "friendly states" that they should pressure the ICC to drop its investigation in order not to impede progress between Israelis and Palestinians.

This position implies that allowing Israel to commit criminal atrocities unconstrained is the only path to progress, otherwise, Israel will make the lives of Palestinians impossible.

As always, Israel's quest for impunity begins at the White House

At the same time, it neglects that "progress" towards ending the conflict has been entirely absent from Israel's agenda, at least since Netanyahu took office in 2009. A quest for justice cannot impede non-existent progress. Rather, the ICC investigation can act as a deterrent to Israeli violations and an incentive to ending occupation; for instance, Palestinians can pledge to drop the investigation as the outcome of realising freedom and dignity.

Turning to Biden

As always, Israel's quest for impunity begins at the White House. And while Netanyahu's mouthpieces have been tirelessly smearing the Biden administration as "anti-Israel" for merely picking four members with some Arab roots, the same pro-Israeli megaphones are now turning to Biden to shield Israel from an ICC investigation.

One senior pro-Israeli lobbyist claimed that undermining international law to Israel's advantage is "the real test of US partnership with Israel".

Biden's administration views any internationalisation of the Israeli-Palestinian conflict, such as turning to the ICC, to be an attempt to delegitimise Israel's existence, and therefore opposes it, as a former US ambassador to Israel told me recently.

Last Friday, the US State Department expressed opposition to the ICC decision on Israel, while emphasising that "We share the goals of the ICC." This came just one day after the US welcomed an ICC verdict against a Ugandan war criminal.

At the very least, they should not stand in the way of the ICC investigation

What's unclear, however, is whether Biden would translate this rhetorical opposition into policies and punitive actions against the ICC and Palestinians to thwart the investigation, or if his administration will take a position on the ICC investigation similar to their position on the BDS; i.e. denouncing it without formally criminalising its advocacy and pursuit.

The day before the ICC announcement, the US state department emphasised its opposition to any unilateral steps that undermine the two-state solution in response to Israel's demolition of Palestinian homes in Khirbet Humsa. For the Biden administration to shield Israel from the consequences of taking such unilateral actions would be utterly ludicrous.

As Biden's team have already made clear that they have neither the time nor capacity to make progress on the Israel-Palestine topic, they should at the very least not stand in the way of the ICC investigation as Palestinians' last resort and final hope for a sense of justice.

As Biden moves to fulfill his promise to restore US-Palestinian relations after the severe damage incurred under Trump, it would be amiss for his administration to make this contingent upon Palestinians surrendering their bid at the ICC. Pursuing this path would render Biden indistinguishable from Trump to Palestinians, whose sole hope is to see the light at the end of a dark tunnel of oppression and subjugation.

Muhammad Shehada is a writer and civil society activist from the Gaza Strip and a student of Development Studies at Lund University, Sweden. He was the PR officer for the Gaza office of the Euro-Med Monitor for Human Rights.

Follow him on Twitter: @muhammadshehad2

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Opinions expressed in this article remain those of the author and do not necessarily represent those of The New Arab.