This came before Friday's ruling by the ICC that Israel may be investigated for war crimes.
The bipartisan letter urged then-secretary of state Mike Pompeo to “stand in full force against any biased investigation of Israel” by the ICC. The leading signatories were Senators Ben Cardin of Maryland, a Democrat, and Rob Portman of Ohio, a Republican, and 67 other senators, including Harris, joined them.
The letter came last May, six months after ICC Prosecutor Fatou Bensouda announced she thought there was “a reasonable basis to proceed with an investigation” into alleged crimes by Israelis and Palestinians.
That announcement “constitutes a dangerous politicization of the Court and distorts the purposes for which the court was established,” the senators wrote, pointing out that it was meant to be a court of last resort for prosecuting serious international crimes.
“ICC actions currently underway could lead to the prosecution of Israeli nationals despite the fact the ICC does not enjoy legitimate jurisdiction in this case,” the letter reads. “Both Democratic and Republican administrations have refused to join the Court in part because they feared its politicization and misuse.”
The senators pointed out that “Palestine” does not meet the criteria for statehood, that Israel – as well as the US – are not members of the court and that the court’s own rules “prohibit it from prosecuting cases against a country that has a robust judicial system willing and able to prosecute war crimes of its personnel,” which Israel has.
“By accepting Palestinian territorial claims over the West Bank, East Jerusalem, and Gaza, the Prosecutor is making a political judgment that biases any subsequent investigation or trial,” the letter states. “Establishing the boundaries of any future Palestinian state is a political decision that must be determined through negotiations between Israel and the Palestinians. Any ICC determination regarding its jurisdiction over the disputed territories or investigation of Israel would further hinder the path to peace.”
On Saturday night, US State Department spokesman Ned Price said: “We do not believe the Palestinians qualify as a sovereign state... We have serious concerns about the ICC’s attempts to exercise its jurisdiction over Israeli personnel. The United States 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.”
Another indication of US President Joe Biden’s thinking on the matter may be that he has used executive orders to overturn dozens of former president Donald Trump’s policies, but lifting sanctions on ICC officials is not one of them.
The Trump administration said the ICC infringed on US sovereignty by authorizing a probe into alleged war crimes by American troops in Afghanistan. As such, it sanctioned dozens of ICC staff members, including Bensouda, freezing their assets in the US and banning them from traveling to the US to investigate American citizens without US consent.In late January, a State Department spokesman told Reuters the sanctions would be “thoroughly reviewed,” but that “we disagree with the ICC’s actions relating to the Afghanistan and Israeli/Palestinian situations.”