WASHINGTON – U.S. Senators Ben Cardin (D-Md.) and Rob Portman (R-Ohio) and a supermajority of the Senate are urging Secretary of State Michael Pompeo to use America’s influence to curtail the politically driven investigations by the International Criminal Court against our ally Israel. 

In a letter Wednesday, the senators wrote: “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 … 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. Moreover, politicizing the Court in this way could further weaken and undermine the ICC.” 

After sending the letter, Senators Cardin and Portman released the following statement: “We are pleased that so many of our Senate colleagues joined us on this very important effort. With ICC Prosecutor Fatou Bensouda doubling down on her position that there is a reasonable basis to proceed with an investigation on April 30, this letter is more important than ever. The ICC has no jurisdiction over disputed territories and their claim creates a dangerous precedent that undermines the purposes for which the court was founded. This effort is discriminatory against Israel and will serve to make a lasting solution, based on direct negotiations between the two parties, more difficult to achieve.”

Joining Cardin and Portman in the letter to Pompeo are: Joe Manchin (D-W.Va.), Susan Collins (R-Maine), Dianne Feinstein (D-Calif.), Jim Risch (R-Idaho), Chris Coons (D-Del.), Pat Roberts (R-Kan.), Richard Blumenthal (D-Conn.), John Boozman (R-Ark.), Jacky Rosen (D-Nev.), Marsha Blackburn (R-Tenn.), Bob Casey (D-Pa.), Shelley Moore Capito (R-W.Va.), Ron Wyden (D-Ore.), Marco Rubio (R-Fla.), Kirsten Gillibrand (D-N.Y.), Bill Cassidy (R-La.), Mark Warner (D-Va.), Cory Gardner (R-Colo.), Tina Smith (D-Minn.), Chuck Grassley (R-Iowa), Bob Menendez (D-N.J.), Mitch McConnell (R-Ky.), Kyrsten Sinema (D-Ariz.), Martha McSally (R-Ariz.), Michael F. Bennet (D-Colo.), Kevin Cramer (R-N.D.), Catherine Cortez Masto (D-Nev.), Deb Fischer (R-Neb.), Sheldon Whitehouse (D-R.I.), Richard Burr (R-N.C.), Cory Booker (D-N.J.), Kelly Loeffler (R-Ga.), Gary Peters (D-Mich.), Roy Blunt (R-Mo.), Debbie Stabenow (D-Mich.), Josh Hawley (R-Mo.), Doug Jones (D-Ala.), Jerry Moran (R-Kan.), Chuck Schumer (D-N.Y.), Roger Wicker (R-Miss.), Tammy Duckworth (D-Ill.), Thom Tillis (R-N.C.), Jon Tester (D-Mont.), Pat Toomey (R-Pa.), Maggie Hassan (D-N.H.), Mike Crapo (R-Idaho), Kamala Harris (D-Calif.), Steven Daines (R-Mont.), Amy Klobuchar (D-Minn.), James Lankford (R-Okla.), Dan Sullivan (R-Alaska), John Cornyn (R-Tex.), Joni Ernst (R-Iowa), John Hoeven (R-N.D.), Ron Johnson (R-Wisc.), David Perdue (R-Ga.), John Kennedy (R-La.), Ben Sasse (R-Neb.), James Inhofe (R-Okla.), Mike Lee (R-Utah), John Thune (R-S.D.), Lisa Murkowski (R-Alaska), Mike Rounds (R-S.D.), Ted Cruz (R-Tex.), Tim Scott (R-S.C.), Cindy Hyde-Smith (R-Miss.) and Lindsey Graham (R-S.C.).

The full text is available below.

May 13, 2020

Dear Mr. Secretary:

We urge you to continue your vigorous support of Israel as it faces the growing possibility of investigations and prosecutions by the International Criminal Court (ICC).  Neither the United States nor Israel are members of the ICC. 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. Both Democratic and Republican administrations have refused to join the Court in part because they feared its politicization and misuse.

While we support the ICC’s stated goal of ensuring accountability for the gravest crimes of concern to the international community, we are concerned that the Court’s recent actions regarding the “Situation in Palestine” have infused politics into the judicial process. Specifically, we are troubled by Prosecutor Fatou Bensouda’s December 20, 2019 announcement that, following a five-year preliminary examination of the situation, she established “a reasonable basis to proceed with an investigation” into crimes by Israelis and Palestinians. Prosecutor Bensouda also seeks a ruling by the ICC’s Pre-Trial Chamber to confirm whether the Court has jurisdiction over territories such as the West Bank, including East Jerusalem, and Gaza.

We believe the Prosecutor’s decision to investigate the Israeli-Palestinian situation and request to the Pre-Trial Chamber to determine the Court’s jurisdiction over disputed territories constitutes a dangerous politicization of the Court and distorts the purposes for which the court was established. As the world’s only permanent international court, the ICC is intended as a court of last resort for the prosecution of the most serious international crimes. The ICC can only consider allegations brought to it by states, yet “Palestine” does not meet the criteria to qualify for that designation. The ICC has never formally investigated any accusations within disputed territories; doing so now unfairly targets Israel. Additionally, ICC 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. Therefore, the ICC’s mandate should not supersede Israel’s robust judicial system, including its military justice system.

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. Contrary to Prosecutor Bensouda’s request to the Pre-Trial Chamber, the ICC does not have a mandate to determine whether the relevant territories are part of the State of Israel or occupied Palestinian lands. 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. Moreover, politicizing the Court in this way could further weaken and undermine the ICC.

Accordingly, we believe that the United States should stand in full force against any biased investigation of Israel. We ask that you give this matter your full attention and offer the State Department’s support for Israel.

Sincerely, 

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