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Al-Haq Calls on the Biden Administration to Respect the International Criminal Court’s (ICC) Jurisdiction in the Situation in the State of Palestine and Rescind Executive Order 13928
11، Feb 2021

During 2020, Al-Haq was clear in stating its condemnation of the United States’ Executive Order 13928, issued by Donald Trump on 11 June 2020, allowing for the targeting of individual members of the International Criminal Court’s (ICC) staff. Describing the initial adoption of the Executive Order as “a blatant and shameful attempt to frustrate and contravene the interests of justice and rights of victims of international crimes”, in September 2020 Al-Haq condemned the imposition of targeted sanctions against the ICC’s Prosecutor Fatou Bensouda and Head of the Jurisdiction, Complementarity and Cooperation Division, Phakiso Mochochoko.

In January 2021, Al-Haq was a co-signatory to an open letter to US President Joe Biden, which called on the new administration to demonstrate its commitment to human rights and alignment with the international legal order by fully rescinding, with immediate effect, Executive Order 13928, on the grounds that it “targets international justice efforts before the ICC directly, and further threatens international efforts towards accountability for the most serious crimes of concern to the international community as a whole”.

The purpose and effect of the Executive Order, and the execution of sanctions for “materially assisting” the Office of the Prosecutor, are intended to divert the Court from investigating the potential individual criminal liability of “personnel of the United States and [US] allies” such as Israel, in the Situations of Afghanistan and Palestine. The Executive Order has had a chilling effect across all ICC investigations and preliminary examinations, impacting the work of ICC staff, lawyers, NGOs and victims, each and any of whom could be considered as “materially assisting” the Office of the Prosecutor through submissions of communications and filings to the Court.

Al-Haq and partner human rights organisations have welcomed the 5 February 2021 decision of the Pre-Trial Chamber of the ICC, confirming that the State of Palestine, which joined the Court in 2015, is a full and equal State Party to the Rome Statute, and that the entirety of the occupied Palestinian territory is within the scope of the Court’s territorial jurisdiction for investigation into international crimes. 

The Pre-Trial Chamber ruled that the ICC Prosecutor has full authority to investigate all war crimes and crimes against humanity that have taken place in the occupied Palestinian territory (OPT), and made clear that the Oslo Accords are not an obstacle to the Court investigating and prosecuting Israeli personnel, including the Israeli occupying forces and Israeli authorities in the occupied West Bank. Similarly, the Chamber affirmed the Court’s full jurisdiction over the Gaza Strip since June 2014, including the Israeli military’s attacks on unarmed protestors as part of the Great Return March.

It is now imperative that the United States rescind Executive Order 13928. Announcing its intention to reengage with the UN’s Human Rights Council, the US Mission to the UN stated on 8 February 2021 that “Through our leadership on the UN Security Council and by reengaging with the Human Rights Council, the United States will continue to fight for global peace and security, and to promote human rights and fundamental freedoms for all”. 

However, such statements are bound up with the caveat that the United States is opposed to the Human Rights Council continuing its necessary work to strengthen the promotion and protection of the Palestinian peoples’ human rights against Israel’s consistent violations of international law. Responding to the Pre-Trial Chamber’s decision, the US asserted that “we do not believe the Palestinians qualify as a sovereign state, and therefore are not qualified to obtain membership as a state, or participate as a state in international organizations, entities, or conferences, including the ICC”. 

In expressing its concern as to the possibility of the ICC exercising jurisdiction over Israelis alleged to have committed war crimes and crimes against humanity, the US recalled that it “has always taken the position that the court’s jurisdiction should be reserved for countries that consent to it, or that are referred by the UN Security Council”.

As a State party to the Rome Statute of the ICC, Palestine has properly and fully consented to the exercise by the Court of its jurisdiction over international crimes committed on the territory of the State of Palestine. The decision of the Pre-Trial Chamber has affirmed that there is no obstacle in law for the Court to exercise such jurisdiction, and it is now incumbent on the United States, even if it continues to deny recognition to the State of Palestine, to refrain from attacking the Court through the application of the Executive Order and the imposition of targeted sanctions against the ICC and its designated staff.

That the United States position is one predicated on support for continued Israeli impunity and the denial of the Palestinian people from exercising their inalienable right to self-determination is further evidenced by ongoing US support for the work of the ICC in its investigation of other situations. On 4 February 2021, the US welcomed the recent conviction on charges of war crimes and crimes against humanity of Ugandan Dominic Ongwen as “a significant step for justice and accountability […] We hope that this verdict brings some measure of peace to the many victims”. The US statement further encourages the submission of any information leading to the arrest, transfer, or conviction of another individual, Joseph Kony, also wanted for trial at the ICC, with the promise of a reward of up to $5 million. 

Hence, while directly and personally targeting the personnel, including the Chief Prosecutor, of the Court with sanctions, the US is simultaneously encouraging people to engage with and support the Prosecutor in the investigation of the situation in Uganda. This seeming contradiction can only be understood by reference to the existence of a double standard, by which the US and its allies are to be shielded from accountability and the application of international law, while its opponents are to be sanctioned and targeted. 

In September 2020, the ICC itself described the measures taken by the US in layering sanctions against its staff as coercive acts, ”directed at an international judicial institution and its civil servants“ which ”are unprecedented and constitute serious attacks against the Court, the Rome Statute system of international criminal justice, and the rule of law more generally”.

Should the new US administration continue with the consistent US policy of supporting Israel’s continuous commission of widespread human rights violations and war crimes, and the ever-deepening entrenchment of unlawful settlements across occupied territory, it will be working against its commitment “to fight for global peace and security, and to promote human rights and fundamental freedoms for all”. In failing to rescind Executive Order 13928, the US is actively undermining the ability of the Palestinian people to justice and accountability and reinforcing Israel’s institutionalised impunity.