Al-Haq, Al Mezan and Palestinian Centre for Human Rights jointly and vehemently condemn, the latest agreement between the US and Israel to circumvent the Investigation in the Situation in the State of Palestine at the International Criminal Court (ICC). As they met on 14 July, President Biden and Prime Minister Lapid reaffirmed the United States’ commitment to Israel’s ‘security’ as well as the strategic U.S.-Israel partnership, with the doubtful objective of “repairing the world”. They further “affirm that they will continue to work together to combat all efforts to boycott or de-legitimize Israel, to deny its right to self-defence, or to unfairly single it out in any forum, including at the United Nations or the International Criminal Court” which they label as a so-called “source of antisemitism”.[1]

This attack against Palestine’s proceedings before the International Criminal Court (ICC), is not new. In 2015, following the opening by the ICC’s Office of the Prosecutor of a preliminary examination into the Situation in Palestine, some States politicised the proceedings before the Court and attempted to cripple the Court financially. The same line of argument was reproduced in 2020.[2] Another attack against the ICC was launched by the US in September 2018 and included “banning ICC and its personnel, such as its judges and prosecutors”, thus targeting the independence of the Prosecutor and the judiciary. By June 2020, the US had revoked the visa of the ICC Prosecutor and other staff members of her office. The US targeting of ICC staff members crystallised in 2020 with the issuing of an Executive Order which allowed the US President, under the pretext of a national emergency, to suspend the visa and “freeze the assets of any foreign person deemed […] to have engaged with, or assisted the ICC in its efforts to investigate, detain, or prosecute the personnel of the United States or its allies”.

This latest “combat” against the so-called efforts to “unfairly single out” Israel at the ICC and the United Nations, is the latest continuation of Israel’s protracted smear campaign targeting Palestinian civil society organisations, supported by the United States. Recently, the US further attempted to circumvent Israeli accountability by discrediting the UN Commission of Inquiry through an unconvincing argument related to the “longstanding disproportionate attention given to Israel in the Council”. Once again, short of any proper legal argument tackling the findings of the Commission, this constitutes a desperate attempt to, “ensure that the entrenched culture of impunity for international crimes committed by the United States and its allies, in particular Israel […] remains intact”.

Similarly, the reference to antisemitism constitutes another baseless accusation and reveals the weakness, if not the non-existence of Israel’s legal argument with respect to international criminal justice, which perpetuates the climate of impunity for core international crimes in Israel. In 2016, Richard Falk, the then Special Rapporteur on the situation in the Palestinian territory occupied since 1967, sent a letter to the UN Secretary-General where he denounced Israel’s strategy to “take attention away from the issues raised” by “shooting the messenger” instead of responding to the message. It is thus critical to remind Third States “of their responsibility to take steps that will bring this unprecedented ordeal to an end”. Indeed, Third States, including the United States, have an obligation not to recognise the illegal situation created in the OPT, as of 1967. They also have to refrain from assisting in the violations of peremptory norms of international law, which, in the situation of Palestine, are for instance the prohibition of forcible transfers of population and the denial of the Palestinian peoples’ right to self-determination.

In light of the above, we call on Third States, including the United States and Israel, to refrain from impeding or discrediting the investigation conducted by the ICC’s Prosecutor in the situation of Palestine, as well as the investigation of the above-mentioned Commission of Inquiry. We further urge Third States to support these investigations and to apply their universal jurisdiction, when possible, pursuant to Article 146 of the Fourth Geneva Convention.