Statement on ICC Prosecutor’s Decision to Investigate Alleged Violations of International Law in Palestinian Territories

March 4, 2021

J Street believes that respect for and compliance with international law is critical to reducing conflict and addressing injustice throughout the world. Like all peoples, both Israelis and Palestinians should be subject to, and entitled to, the protections of international law. We have long cautioned that harmful actions taken by leaders on both sides of the conflict may constitute violations of international law — including the Israeli government’s policy of systematic settlement expansion and de facto annexation in the occupied territory, Palestinian terror groups’ frequent attacks on Israeli civilians, and other concerning actions.

That the parties to the conflict find themselves under investigation by the International Criminal Court (ICC) only highlights the failure of efforts to resolve the conflict and deepens our belief that a just, peaceful and secure resolution to the conflict must be achieved through negotiations and diplomacy.

We take no position on the merits of the ICC’s decision on jurisdiction vis-a-vis “the Situation in Palestine,” nor on its decision to formally open an investigation into the situation. These are questions which involve legal complexities beyond the scope of our expertise. We do, however, believe that Palestinians have the right to seek redress for alleged violations of their legal rights (as do Israelis), and that the ICC has a mandate to review these types of allegations, decide jurisdiction, and investigate per their own long-standing procedures.

We understand and deeply sympathize with the fear and concern felt by many Israeli families who have been told by critics of the Court that an ICC investigation could result in the penalization of rank and file soldiers who have served in the IDF. In the Court’s history, however, it has never focused on enlisted soldiers or even most ranks of officers; it has focused instead on decisions made by political or military leaders only at the very highest levels.

Furthermore, it is important to note that the prosecutor will be investigating the actions not just of Israelis, but of Palestinians as well.

The latest ICC decisions are already being met with vitriol, including charges of antisemitism and a belief that pursuit of legal redress in a court of law is in some way an attack on the state of Israel or the Israeli people. Those mounting such attacks are saying, in effect, that the Israeli government has the right to take whatever actions it wants in the occupied territory without ever facing accountability for its actions or consequences if it is violating international law. We cannot support such a claim of total impunity.

We urge that the energy being poured into decrying the Court and its motives be turned in a more fruitful direction — urging Israel to participate in the Court’s proceedings. Under Court procedures, Israel will shortly have the right to ask the Court to defer to Israel’s own ongoing and previous investigations into any incidents that the Prosecutor indicates an intention to address. Such a request would freeze the case and could ultimately even lead the prosecutor to close the case if the investigation is deemed sufficient.

At the same time, we urge the US government not to take any actions to interfere with the ICC’s process by penalizing or delegitimizing the court. We also urge the administration to swiftly rescind the outrageous and harmful sanctions that the Trump administration leveled against ICC officials and officers in September 2020. J Street was one of over 80 NGOs, faith-based groups, and academic institutions to recently call on the Biden administration to repeal these sanctions, noting that “Keeping in place the executive order authorizing sanctions would be inconsistent with the new administration’s laudable commitments to respecting the rule of law and pursuing multilateral cooperation in support of U.S. interests.”

As pro-Israel, pro-peace Americans, we are dismayed and frustrated that decades of ongoing conflict, occupation and destructive decision-making have brought us to this point. Ultimately, all of us who wish to see a future of Israeli-Palestinian peace, security and coexistence rather than bloodshed, litigation and recrimination must recognize the vital importance of redoubling efforts to reach a comprehensive, mutually agreed solution to the Israeli-Palestinian conflict and to end over 53 years of ever-deepening occupation.

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