Sunday, 11 Apr 2021 - 29 of Nisan, 5781

EU’s Borrell welcomes the US decision to lift sanctions imposed on ICC Chief Prosecutor

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The Trump administration sanctioned Bensouda and another ICC official last year, for what then Secretary of State Mike Pompeo called the “illegitimate attempts” of the court—which he referred to as a “thoroughly broken and corrupt institution”—to subject Americans to its jurisdiction.

The European Union has  welcomed the United States’ lifting of sanctions imposed by former leader Donald Trump on the International Criminal Court’s Chief Prosecutor.

On 2 April, the US administration announced the repeal of the executive order imposing sanctions on the Prosecutor of the ICC Fatou Bensouda and on Phakiso Mochochoko, head of the Jurisdiction, Complementarity and Cooperation Division of the ICC Prosecutor’s Office. ‘’This important step underlines the US’s commitment to the international rules-based system,’’ said EU’s foreign affairs chief Josep Borrell in a statement.

The statement added: ‘’The ICC plays an important role in delivering justice to the victims of some of the world’s most horrific crimes. Protecting the impartiality and judicial independence of the ICC is paramount to its effectiveness and proper functioning.’’

Borrell said the European Union ‘’is unwavering in its support for the universality of the Rome Statute and for the ICC.’’ ‘’We will stand together with all partners to defend the Court against attempts aimed at obstructing the course of justice and undermining the international system of criminal justice and we will continue to support the ongoing review process to enhance the Rome Statute system and make the Court stronger and more effective.’’

In its decision, U.S. Secretary of State Anthony Blinken said the economic sanctions imposed on Bensouda and a top aide in 2019 “were inappropriate and ineffective,” and were therefore lifted.

“We continue to disagree strongly with the ICC’s actions relating to the Afghanistan and Palestinian situations. We maintain our longstanding objection to the court’s efforts to assert jurisdiction over personnel of non-states parties such as the United States and Israel,” Blinken said.

He added: “We believe, however, that our concerns about these cases would be better addressed through engagement with all stakeholders in the ICC process rather than through the imposition of sanctions.”

The Trump administration sanctioned Bensouda and Mochochoko on Sept. 2, 2020, for what then Secretary of State Mike Pompeo called the “illegitimate attempts” of the court—which he referred to as a “thoroughly broken and corrupt institution”—to subject Americans to its jurisdiction.

Bensouda announced early last month the ICC’s intention to open an investigation into war crimes allegedly committed by Israelis and Palestinians since the summer of 2014.

The announcement was strongly denounced by Israel, which insists that the ICC has no jurisdiction in the matter. In addition, the fact that Bensouda set June 13, 2014, as the starting point for the investigation means that the court will not look into the kidnapping and murder the previous day of three Israeli teens—Eyal Yifrach, Gilad Shaar and Naftali Frenkel—at the hands of Hamas terrorists.

The incident sparked “Operation Protective Edge,” Israel’s war against Hamas in Gaza, which took place from July 8 to Aug. 26 that year.

In February, the United States said they oppose the International Criminal Court’s attempts to affirm territorial jurisdiction over the Palestinian situation after the ICC issued on Friday a decision claiming jurisdiction in the West Bank, East Jerusalem, and Gaza.

The court, based in The Hague, recognized the Palestinian Authority as a member of the ICC Rome Statute, which dictates the locations that stand under the court’s jurisdiction. It recognized the West Bank, East Jerusalem and Gaza as falling into the category.

According to the court, it may apply the Rome Statute to alleged war crimes committed by Israel.

The Rome Statute is the treaty established by the ICC which dictates its functions, jurisdiction and structure.

The permission for the criminal investigation was given to the ICC’s Chief Prosecutor Fatou Bensouda who had conducted a preliminary investigation into the alleged war crimes. It states that the investigation can look into actions taken in Judea and Samaria, Gaza and east Jerusalem.

In a reaction to the ICC ruling, Germany’s Foreign Minister Heiko Maas said that ”our legal view on jurisdiction of the ICC regarding alleged crimes committed in the Palestine territories remains unchanged. The court has no jurisdiction, because of the absence of the element of Palestinian statehood required by international law.”

Israel has denounced the ruling as political. Both Israel and the US are not members of the ICC, the Palestinian Authority joined the court in 2015.

”Israel is the only non-member state being potentially investigated by the ICC on behalf of an ICC member which is not a state (Palestine),’’ noted Prof. Eugene Kontorovich, from the  George Mason’s Antonin Scalia School of Law, an expert in constitutional and international law, during a briefing for journalists organised by Europe Israel Press Association. ”There is no situation like that in the world, and there never will be,” he added.

‘‘I think this case is an impediment and obstacle in reaching a solution to the Israeli-Palestinian conflict because the court is making a political question from a criminal issue,” said Pnina Sharvit Baruch, research associate at the Israeli Institute for National Security Studies (INSS).


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