War Crimes and War Criminals: Who Will Be Held Accountable?
By Philip Giraldi | Strategic Culture Foundation | July 23, 2020
There is something unique about how the United States manipulates the “terrorism” label to avoid being accused of carrying out war crimes. When an indigenous militia or an armed insurgency like the Taliban in a country like Iraq or Afghanistan attacks American soldiers subsequent to a U.S. invasion which overthrew the country’s government, it is considered by Washington to be an act of “terrorism.” Terror attacks de facto permit a carte blanche response, allowing virtually anything as retaliation against the parties involved or countries that support them, including the assassination of foreign government officials. But for the attacker, whose perspective is quite different, the incident often could reasonably be described as legitimate resistance to a foreign occupier and much of the world might agree with that assessment.
So, it all comes down to definitions. The United States covers its version of reality through liberal use of the Authorization for Use of Military Force (AUMF) which more-or-less gives a blanket approval to attack and kill “terrorists” anywhere at any time. And how does one become a terrorist? By being included on the U.S. government’s heavily politicized annual list of terrorist groups and material supporters of terrorism. That was the argument that was used by the United States when it killed Iranian General Qassem Soleimani in January, that his organization, the Qods Force, was on the “terrorist” lists maintained by State and the Treasury Department and he was therefore held to be guilty of any and all attacks on U.S. military carried out by Qods or by presumed Iranian surrogate militias.
The case made to justify killing Soleimani was considered deeply flawed at the time it took place. Because the United States says something is legal due to a law Congress has passed does not make it so, just as most of the world would consider the U.S. profile killings by drone in Afghanistan and elsewhere, based on nothing more than the assumption that someone on the ground might be a “terrorist,” to be little more than war crimes.
It has recently been revealed that the Trump Administration has issued a so-called “finding” to authorize the CIA to conduct more aggressive cyberattacks against infrastructure and other targets in countries that are considered to be unfriendly. The finding specifically named Iran, North Korea, China and Russia as approved targets and it is of particular interest because it basically left it up to the Agency to decide whom to attack and to what degree. As Washington is not at war with any of the countries named and is essentially seeking to damage their economies directly, the activity undertaken by CIA has constituted acts of war and, by widely accepted legal definition, attacks on countries that are not actually threatening are war crimes.
To counter the negative publicity about Trump Administration actions and to establish a possible casus belli, Washington has been floating numerous stories alleging Iranian, Russian and Chinese “aggression.” The ridiculous story about Russia paying Afghans bounties to kill American soldiers was quickly debunked, so the White House and the captive media are now alleging that Moscow hacker/spies are seeking to steal proprietary information dealing with the development of a coronavirus vaccine. The agitprop coming out of Washington to blame Russia for nearly everything notwithstanding, opinion polls suggest that most of the world considers Washington to be the primary source of global instability, rejecting the assertion by Secretary of State Mike Pompeo that the U.S. is a “force for good.”
So, it is reasonable to suggest that the United States has been guilty of many war crimes in the past twenty years and has only been shielded from the consequences due to its ability to control the message combined with its power in international fora and its unwillingness to cooperate with the International Criminal Court (ICC) in the Hague.
But the willingness of the international community to look the other way in support of the war crimes double standard appears to be changing. The ICC, which has had its investigators denied entry to the United States, has been investigating Israeli war crimes even as it also looks at developments in Afghanistan and Iraq involving U.S. forces. Trump’s ban on entry by ICC personnel includes their families even if they are American citizens and it also protects Israel in that ICC investigators looking into the possible war crimes committed by Israeli soldiers and officers as well as the relevant Jewish state’s government officials will also be sanctioned and denied entry into the U.S. In practical terms, the Trump Administration is declaring that Israeli and U.S. soldiers will be regarded as one and the same as they relate to dealings with the ICC, a conceit that is little known to the American public.
The Israelis have responded to the threat from the ICC by compiling a secret list of government officials and military officers who might be subject to ICC issued arrest warrants if they travel in Europe for war crimes committed in Lebanon and Syria as well as of crimes against humanity directed against Palestinians. The list reportedly includes between 200 and 300 names.
That Israel is making a list of people who might be vulnerable to accusations of having possibly committed war crimes is a de facto admission by the government that such crimes were in fact committed. The ICC will soon decide whether to move on the December request by ICC Prosecutor Fatou Bensouda to investigate both Israel and Hamas over suspicions of war crimes in Gaza and Jerusalem as well as on the occupied West Bank beginning in 2014. The investigation would include “crimes allegedly committed in relation to the use by members of the IDF of non-lethal and lethal means against persons participating in demonstrations beginning in March 2018 near the border fence between the Gaza Strip and Israel, which reportedly resulted in the killing of over 200 individuals, including over 40 children, and the wounding of thousands of others.”
Given the time frame, Israeli government officials and military officers would likely be the first to face scrutiny by investigators. According to Haaretz, the list would almost certainly include “Prime Minister Benjamin Netanyahu; former defense ministers Moshe Ya’alon, Avigdor Lieberman and Naftali Bennett; former Israel Defense Forces chiefs of staff Benny Gantz and Gadi Eisenkot, and current Chief of Staff Aviv Kochavi; and the former and current heads of the Shin Bet security service, Yoram Cohen and Nadav Argaman, respectively.”
One wonders who would be included on a comparable list for the United States. There are a lot of lying politicians and sly generals to choose from. As both Israel and the United States do not recognize the authority of the ICC and will almost certainly refuse to participate in any fashion if the charges of war crimes and crimes against humanity ever actually make it to the court, any discussion of lists are at this point merely travel advisories for war criminals. The United States will push back and will inter alia certainly attempt to discredit the court using whatever weapons are available, to include sanctions against the nations that support any investigation and trial.
One nevertheless has to hope that the court will persevere in its effort to expose the crimes that continue to be committed by the U.S. and Israel in both Palestine and Afghanistan. Embarrassing Washington and Jerusalem in a very visible and highly respected international forum might be the only way to change the direction of the two nations that more than any other insist that “might makes right.”
Israel’s list of compromised officials suggests their guilt of war crimes
By Ramona Wadi | MEMO | July 21, 2020
The International Criminal Court (ICC) has adjourned without issuing its ruling on whether Israeli officials will be tried for war crimes against the Palestinian people since 2014, when Gaza was destroyed during “Operation Protective Edge”. With an extended timeframe until the ruling is due, Israel now has additional time to prepare for any eventual action taken by The Hague. It has apparently already drawn up a list of officials who might be liable to be prosecuted for war crimes.
According to Haaretz, the list contains the names of 200-300 Israeli officials, most probably including Prime Minister Benjamin Netanyahu and Defence Minister Benny Gantz. The list has been drawn up in utmost secrecy, not least because, as Haaretz points out, “The court is likely to view a list of names as an official Israeli admission of these officials’ involvement in the incidents under investigation.” The existence of the list alone is likely to be viewed as such.
However, what needs to change at an international level is the endorsement of Israel’s security narrative. The ICC’s clear mention of war crimes, as opposed to alleged war crimes – the latter being a phrase which many human rights organisations have used and through which Israeli impunity has also been cultivated – should prompt a new reckoning of Israel’s standing and its state violence.
During that 2014 military offensive against the Palestinians in Gaza, the international community was quick to promote “Israel’s right to defend itself” even as Palestinian civilians were being slaughtered. So far, the UN has never considered Palestinians as anything other than a statistical detail supporting its purported humanitarian endeavours.
The fact of the matter is that Israel is a colonial entity, but this has been eliminated from international diplomatic discourse, to the detriment of the Palestinian people. Hence the discrepancies when speaking of Israel’s perpetual violations against the Palestinians; by refusing to include the colonial-settler context, the international community eliminates the foundations of what have now been described clearly as war crimes by the ICC.
The list itself suggests guilt, admitted more or less openly by the very fact of its compilation. While the criminal investigations are down to the competence of the ICC, it rests with the international community to see them through to their conclusion, rather than simply parroting Israel’s excuses for its violence. The planned annexation of the occupied West Bank is a case in point. Israeli officials are concerned that implementing the annexation plans will be detrimental to Israel, especially given that settlement expansion is being considered as the strongest evidence of war crimes. The international community, however, has still failed to unite against the possibility of additional war crimes being committed against the Palestinian people, and limited its response to repeated statements that annexation is against international law.
Israel has never, ever, heeded such statements. The possibility of ICC investigations, however, is exposing the fact that Israel knows it has committed war crimes and is preparing to shield the perpetrators from international prosecution. If the UN is truly concerned with safeguarding human rights, it should seize the opportunity to refrain from further endorsement and dissemination of Israel’s security and “self-defence” narrative, which itself violates international law. It should adopt a strong stance against Israel and its annexation plan, and stand by the ICC’s clear admission that colonial expansion is a war crime. The UN, however, cannot do so without taking into account its own complicity in maintaining Israel’s colonial violence, hence the absence of a consistent human rights narrative which would support a possible criminal investigation at an international level.
Israel creates list of officials to prevent arrests for war crimes
MEMO | July 16, 2020
Israel is preparing a secret list of hundreds of its officials who are liable to be tried in The Hague on war crimes charges, it has been revealed. The government is warning them not to travel in case they are arrested.
According to Haaretz, the list has the names of between 200 and 300 military and intelligence officials who could be arrested and put on trial for war crimes committed against civilians in the occupied Palestinian territories of the West Bank and the Gaza Strip.
The report comes amid news of the International Criminal Court (ICC) possibly opening an investigation into war crimes committed by both Israel and Hamas, starting from the Israeli military offensive on Gaza in 2014, known as “Operation Protective Edge”. The request for the trial was made by ICC Prosecutor Fatou Bensouda.
The list was supposed to be kept secret due to the danger it could pose to the officials whose names it contains. It could also be viewed by the ICC as an admission of guilt. Those on the list include Prime Minister Benjamin Netanyahu; former Defence Ministers Moshe Ya’alon, Avigdor Lieberman and Naftali Bennett; former Chiefs of Staff Benny Gantz and Gadi Eisenkot, and current Chief of Staff Aviv Kochavi, as well as the former and current heads of the Shin Bet intelligence agency, Yoram Cohen and Nadav Argaman respectively.
It is suspected that the remainder could be more junior officers and officials, including those who approved the building of Jewish-only settlements within the occupied West Bank. Such settlements are illegal under international law and are one of the subjects of the ICC investigation.
The future of the investigation is to be decided by Judges Peter Kovacs of Hungary, Marc Perrin de Brichambaut of France and Reine Adelaide Sophie Alapini-Gansou of Benin. It will also depend on whether the court has jurisdiction over the areas where the war crimes were committed, which include the occupied West Bank, Gaza Strip and East Jerusalem. Israel insists that the ICC has no such authority or jurisdiction in those areas, as the Palestinian Authority (PA) is not a sovereign state.
This has led many observers to predict that Israel will refuse to cooperate with the ICC, which could result in the court ordering secret detention orders and warrants against the Israeli officials. This would limit their ability to travel and keep Israel unaware of the court proceedings.
If an investigation into alleged war crimes is opened, Israel’s illegal annexation plans for the West Bank could also have a serious impact on any defence that it might mount. Bensouda has included this factor in her preliminary investigation.
The threat of an ICC investigation into Israel’s and America’s alleged war crimes has been criticised by both countries. US President Donald Trump imposed sanctions on the court last month, a move praised by Israel. Nevertheless, the ICC has received further complaints about alleged Israeli and US war crimes over the past month, strengthening the case for a formal investigation.
Will the ICC Investigation Bring Justice for Palestine?
By Ramzy Baroud & Romana Rubeo | Palestine Chronicle | June 29, 2020
In the past, there have been many attempts at holding accused Israeli war criminals accountable. Particularly memorable is the case of the late Israeli Prime Minister, Ariel Sharon, (known, among other nicknames, as the ‘Butcher of Sabra and Shatila’) whose victims attempted to try him in a Belgian Court in 2002.
Like all other efforts, the Belgian case was dropped under American pressure. History seems to be repeating itself.
On December 20, the International Court of Justice (ICC) Chief Prosecutor, Fatou Bensouda, resolved that she had sufficient evidence to investigate alleged war crimes committed in the occupied West Bank, East Jerusalem, and the Gaza Strip. The ICC’s unprecedented decision concluded that there were “no substantial reasons to believe that an investigation would not serve the interests of justice”.
As soon as Bensouda made her decision, although after much delay, the US administration swiftly moved to block the Court’s attempt at holding Israeli officials accountable. On June 11, US President Donald Trump signed an executive order slapping sanctions on members of the global judicial body, citing the ICC’s investigations of US war crimes in Afghanistan and Israeli war crimes in Palestine.
Will the US succeed, once more, in blocking another international investigation?
On June 19, we spoke to Dr. Triestino Mariniello, a member of the legal team representing the Gaza victims before the ICC. Mariniello is also a Senior Lecturer at the John Moore University in Liverpool, UK.
There has been much doubt about whether the ICC was serious, willing or capable of pushing this case forward. Later, technical questions arose regarding the ICC’s jurisdiction over occupied Palestine. Have we moved beyond these doubts?
Last December, the Prosecutor decided to ask the Pre-Trial Chamber the following question: “Does the ICC have jurisdiction, that is to say, is Palestine a State under the Rome Statute – not, in general, under international law, but at least under the founding Statute of the ICC? And, if yes, what is the territorial jurisdiction of the Court?”
The Prosecutor argued that the Court has jurisdiction over crimes committed in the West Bank, including East Jerusalem, and Gaza. This request to the Pre-Trial Chamber was not necessary, for a very simple reason: because the situation is being referred by the State of Palestine. So, when a State party refers a situation to the Prosecutor, the Prosecutor does not need authorization by the Pre-Trial Chamber. But let us analyze things within a wider context.
The formal engagement of the State of Palestine with the ICC began in 2009, following the Gaza war (“Operation Cast Lead”). At the time, Palestine had already accepted the jurisdiction of the ICC. It took more than two years for the former Prosecutor to decide whether Palestine was a State or not. After three years, he said: We don’t know if Palestine is a State, so we don’t know if we can accept the jurisdiction of the ICC. Thereafter, this question was raised before the UN General Assembly and the Assembly of State Parties. In other words, they delegated the answer to political bodies, and not to the Pre-Trial Chamber.
That investigation was never conducted and we never had justice for the victims of that war.
In 2015, Palestine accepted the jurisdiction of the Court, and it also became a State Party. Still, the Pre-Trial Chamber decided to involve a number of states, civil society organizations, NGOs, scholars and experts to ask them the question: Is Palestine a State under the Rome Statute? The response was, The Pre-Trial Chamber will decide on this, after it receives the views of the victims, of states, of civil society organizations … and it will decide in the next few weeks or months.
Aside from the Trump Administration, other Western countries, such as Germany and Australia, are lobbying at the ICC to drop the investigation altogether. Will they succeed?
There are at least eight countries that are openly against an investigation of the Palestinian situation. Germany is one. Some of the others came as a surprise, to be honest, for at least four other countries, Uganda, Brazil, Czech Republic, and Hungary had explicitly recognized that Palestine is a State under international law, yet are now submitting statements before the ICC Pre-Trial Chamber saying that this is not true anymore.
Of course, the issue is a little bit more complex, but the substance is, these countries are raising political arguments before the ICC which have no legal basis. It is surprising that these states, on the one hand, claim to be supportive of an independent International Criminal Court, but on the other hand, are trying to exercise political pressure (on that very legal body).
On June 11, Trump signed an executive order in which he imposed sanctions on individuals associated with the ICC. Can the US and its allies block the ICC investigation?
The answer is “no”. Trump’s administration is putting pressure on the ICC. By pressure, we mainly refer to the Afghanistan situation, and also to the Israeli-Palestinian situation. So, every time there is a statement by Trump or Secretary of State, Mike Pompeo in relation to the ICC, they never forget to mention the Afghanistan case.
In fact, the Prosecutor is also investigating alleged war crimes committed by CIA members and US soldiers. So far, this pressure has not been particularly effective. In the case of Afghanistan, the Appeal Chamber has directly authorized the Prosecutor to start an investigation, amending a decision taken by the Pre-Trial Chamber.
Successive US administrations have never been very supportive of the ICC, and the major problem in Rome when the Statute was drafted in 1998 was specifically regarding the role of the Prosecutor. The US opposed, from the beginning, an independent role of the Prosecutor, where the Prosecutor could start an investigation without the authorization of the UN Security Council. This opposition goes back to the Clinton, Bush, Obama, and Trump administrations.
Now, though, we are witnessing an unprecedented situation, with the US administration willing to issue economic sanctions and visa restrictions to individuals associated with the ICC and, perhaps, to other organizations as well.
Article 5 of the Rome Statute – the founding document of the ICC – has an extended definition of what constitutes ‘serious crimes’, that being the crime of genocide, crimes against humanity, war crimes, and the crime of aggression. It could be argued, then, that Israel should be held accountable for all of these ‘serious crimes’. Yet, the ICC opted for what is known as the ‘narrow scope’, thus the investigation will only be looking at the single component of war crimes. Why is that?
If we look at the request by the Prosecutor to the Pre-Trial Chamber, particularly paragraph 94, surprisingly, the scope of the investigation is quite narrow, and the victims know that. It only includes (as part of its investigation into war crimes) some incidents related to the Gaza war of 2014, crimes committed within the context of the ‘Great March of Return’, and the (illegal) Jewish settlements.
It is surprising not to see any reference to the alleged committing of ‘crimes against humanity’, which, as victims say, is widely documented. There is no reference to the systematic attacks put in place by Israeli authorities against the civilian population in the West Bank, including East Jerusalem or in Gaza. The ‘narrow scope’, which excludes crimes against humanity, is something the Prosecutor should look back into. The overall situation in Gaza is largely ignored; there is no reference to the 14-year long siege; there is no reference to the overall victims of the Gaza war in 2014.
That said, the scope of the investigation is not binding for the future. The Prosecutor can decide, at any moment, to include other crimes. We hope it will happen because, otherwise, many victims will never get justice.
But why is Gaza being excluded? Is it because of the way that the Palestinians presented the case or the way the ICC has interpreted the Palestinian case?
I do not think that the blame should be placed on the Palestinians, because the Palestinian organizations submitted (a massive amount of) evidence. I think it is a prosecutorial strategy at this stage, and we hope this will change in the future, particularly with reference to the situation in Gaza, where even the overall number of victims has been overlooked. More than 1,600 civilians were killed, including women and children.
In my personal opinion, there are several references to the concept of conflict itself. The word ‘conflict’ relies on the presumption that there are two parties that are fighting each other on the same level and there is not enough attention given to the Israeli occupation itself.
Additionally, all the crimes committed against Palestinian prisoners have not been included, such as torture and inhumane and degrading treatment. Also not included is Apartheid as a crime against humanity. Again, there is massive evidence that these crimes are committed against Palestinians. We hope that there will be a different approach in the future.
Walk us through the various scenarios and timelines that could result from the ICC investigation. What should we expect?
I think if we look at the possible scenarios from the perspective of the Rome Statute, of the law which is binding, I do not think that the judges have any other option but to confirm to the Prosecutor that Palestine is a State under the Rome Statute and that the territorial jurisdiction includes the West Bank, East Jerusalem and Gaza.
I would find it very surprising if the judges reach any other conclusion. The Palestinian State was ratified in 2015, so you cannot go back to the Palestinians and say: No, you are not a member anymore. Meanwhile, Palestine has taken part in the Assembly of State Parties, is a member of the Supervisory Committee of the ICC, and has participated in important decisions.
The likelihood is that the Prosecutor will receive a green light by the Pre-Trial Chamber. If this does not happen, the Prosecutor can (still) move forward with the investigation.
Other possible scenarios can only be negative ones because they would prevent the victims from getting any justice. The reason that the case is at the ICC is because these victims have never received any justice before domestic courts: the State of Palestine is unable to try Israeli nationals, while Israeli authorities are unwilling to try individuals who have committed international crimes.
If the ICC judges decide not to accept the jurisdiction over war crimes committed in Palestine, this would prevent victims from having access to the only possibility of getting justice.
A particularly dangerous scenario would be the decision by the judges to confirm the ICC jurisdiction over some parts of the Palestinian territory while excluding others, which has no legal ground under international law. It would be very dangerous, because it would give international legitimacy to all the unlawful measures that Israeli authorities – and now even the Trump Administration – are putting in place, including the (illegal) annexation plan.
– Ramzy Baroud is a journalist and the Editor of The Palestine Chronicle. He is the author of five books. His latest is “These Chains Will Be Broken: Palestinian Stories of Struggle and Defiance in Israeli Prisons” (Clarity Press, Atlanta). Dr. Baroud is a Non-resident Senior Research Fellow at the Center for Islam and Global Affairs (CIGA), Istanbul Zaim University (IZU). His website is www.ramzybaroud.net
– Romana Rubeo is an Italian writer and the managing editor of The Palestine Chronicle. Her articles appeared in many online newspapers and academic journals. She holds a Master’s Degree in Foreign Languages and Literature, and specializes in audio-visual and journalism translation.
International Criminal Court Expresses Regret Over US Sanctions, Vows to Continue Work
Sputnik – June 12, 2020
The International Criminal Court (ICC) has expressed regret over the US decision to target its officials with sanctions and expressed determination to continue its work.
“The International Criminal Court expresses profound regret at the announcement of further threats and coercive actions, including financial measures, against the Court and its officials, made earlier today by the Government of the United States”, the ICC said in a statement on late Thursday.
According to the Court’s statement, the US move is one of a series of unprecedented attacks on the ICC and on the Rome Statute system of international criminal justice, which reflects the commitment and cooperation of the ICC’s 123 States Parties.
“The ICC stands firmly by its staff and officials and remains unwavering in its commitment to discharging, independently and impartially, the mandate bestowed upon it by the Rome Statute and the States that are party to it”, the statement added. “An attack on the ICC also represents an attack against the interests of victims of atrocity crimes, for many of whom the Court represents the last hope for justice. As it continues to meet its mandated responsibilities, the Court relies on the staunch support and cooperation of its States Parties”.
On Thursday, the White House announced that US President Donald Trump had issued an executive order authorizing sanctions against ICC officials who are investigating potential war crimes committed by US soldiers in Afghanistan.
In March, the International Criminal Court (ICC) approved the commencement of an investigation into alleged war crimes committed by parties to the Afghan conflict, including US military personnel.
Trump admin sanctions International Criminal Court officials investigating US war crimes
RT | June 11, 2020
The Donald Trump administration is imposing economic sanctions on International Criminal Court officials who are engaged with “any effort” to investigate or prosecute US personnel for war crimes.
In a statement on Thursday, the White House press office said President Donald Trump has also authorized the “expansion of visa restrictions” against ICC officials and their family members.
The US has repeatedly threatened to impose sanctions on the Hague-based court and asserted that it has no right to investigate or prosecute US personnel without Washington’s consent.
The White House statement described the court’s actions as “an attack on the rights of the American people” and a threat to “infringe upon our national sovereignty.”
It added that the ICC was established “to provide accountability for war crimes” but said “in practice” it had become “unaccountable and ineffective.”
Efforts by the ICC to investigate allegations of war crimes by Israel against Palestinians have also drawn ire from the Trump administration.
US Secretary of State Mike Pompeo argued in May that Palestine does not “qualify as a sovereign state” and that the court cannot conduct “illegitimate” investigations against Israel. He threatened that the US would “exact consequences” if the court continued its efforts to investigate alleged crimes.
In the Thursday statement, the White House said the ICC was pursuing “politically-motivated investigations” against the US and its allies “including Israel.”
Without offering evidence, the statement said the US was concerned that “adversary nations are manipulating” the court by “encouraging” allegations against American personnel.
It claimed there is “strong reason to believe” that there is “corruption and misconduct” at the “highest levels” of the court which call its integrity into question.
The US and Israel Hope to Scare the Hague War Crimes Court off from Helping Palestine
By Jonathan Cook | The National | June 9, 2020
In the near-two decades since the International Criminal Court was set up to try the worst violations of international human rights law, it has faced harsh criticism for its highly selective approach to the question of who should be put on trial.
Created in 2002, the court, it was imagined, would act as a deterrent against the erosion of an international order designed to prevent a repetition of the atrocities of the Second World War.
Such hopes did not survive long.
The court, which sits in The Hague in the Netherlands, almost immediately faced a difficult test: whether it dared to confront the world’s leading superpower, the United States, as it launched a “war on terror”.
The ICC’s prosecutors refused to grasp the nettle posed by the US invasions of Afghanistan and Iraq. Instead, they chose the easiest targets: for too long, it looked as though war crimes were only ever committed by Africans.
Now, the ICC’s chief prosecutor, Fatou Bensouda, looks poised finally to give the court some teeth. She is threatening to investigate two states – the US and Israel – whose actions have been particularly damaging to international law in the modern era.
The court is considering examining widespread human rights abuses perpetrated by US soldiers in Afghanistan, and crimes committed by Israeli soldiers in the occupied Palestinian territories, especially Gaza, as well as the officials responsible for Israel’s illegal settlement programme.
An investigation of both is critically important: the US has crafted for itself a role as global policeman, while Israel’s flagrant violations of international law have been ongoing for more than half a century.
The US is the most powerful offender, and Israel the most persistent.
Both states have long dreaded this moment – the reason they refused to ratify the Rome Statute that established the ICC.
Last week Mike Pompeo, the US Secretary of State, stepped up US attacks on the court, saying its administration was “determined to prevent having Americans and our friends and allies in Israel and elsewhere hauled in by this corrupt ICC”.
A large, bipartisan majority of US Senators sent a letter to Pompeo last month urging him to ensure “vigorous support” for Israel against the Hague court.
Israel and the US have each tried to claim an exemption from international law on the grounds that they did not sign up to the court.
But this only underscores the problem. International law is there to protect the weak from abuses committed by the strong. The victim from the bully.
A criminal suspect does not get to decide whether their victim can make a complaint, or whether the legal system should investigate. The same must apply in international law if it is to have any meaningful application.
Even under Bensouda, the process has dragged out interminably. It has taken years for her office to conduct a preliminary investigation and to determine, as she did in late April, that Palestine falls under the ICC’s jurisdiction because it qualifies as a state.
The delay made little sense, given that the State of Palestine is recognised by the United Nations, and it was able to ratify the Rome Statute five years ago.
The Israeli argument is that Palestine lacks the normal features of a sovereign state. However, as the Israeli human rights group B’Tselem recently noted, this is precisely because Israel has occupied the Palestinians’ territory and illegally transferred settlers onto their land.
Israel is claiming an exemption by citing the very crimes that need investigating.
Bensouda has asked the court’s judges to rule on her view that the ICC’s jurisdiction extends to Palestine. It is not clear how soon they will issue a verdict.
Pompeo’s threats last week – he said the US will soon make clear how it will retaliate – are intended to intimidate the court.
Bensouda has warned that her office is being subjected to “misinformation and smear campaigns”. In January, Israeli Prime Minister Benjamin Netanyahu accused the court of being “antisemitic”.
In the past, Washington has denied Bensouda a travel visa, and threatened to confiscate her and the ICC judges’ assets and put them on trial. The US has also vowed to use force to liberate any Americans put in the dock.
There are indications the judges may now be searching for a bolt hole. They have asked Israel and the Palestinian Authority to respond urgently to questions about whether the temporary Oslo accords, signed more than 25 years ago, are still legally binding.
Israel has argued that the lack of resolution to the Oslo process precludes the Palestinians from claiming statehood. That would leave Israel, not the ICC, with jurisdiction over the territories.
Bensouda has suggested the issue is a red herring.
Last Thursday Mahmoud Abbas, the Palestinian president, told the ICC that in any case the PA considers itself exempt from its Oslo obligations, given that Israel has announced imminent plans to annex swaths of Palestinian territory in the West Bank.
Annexation was given a green light under President Trump’s “peace plan” unveiled earlier in the year.
Bensouda’s term as prosecutor finishes next year. Israel may hope to continue stonewalling until she is gone. Elyakim Rubinstein, a former Israeli Supreme Court judge, called last month for a campaign to ensure that her successor is more sympathetic to Israel.
But if Bensouda does get the go-ahead, Netanyahu and an array of former generals, including his Defence Minister Benny Gantz, would likely be summoned for questioning. If they refuse, an international arrest warrant could be issued, theoretically enforceable in the 123 countries that ratified the court.
Neither Israel nor the US is willing to let things reach that point.
They have recruited major allies to the fight, including Australia, Canada, Brazil and several European states. Germany, the court’s second largest donor, has threatened to revoke its contributions if the ICC proceeds.
Maurice Hirsch, a former legal adviser to the Israeli army, wrote a column last month in Israel Hayom, a newspaper widely seen as Netanyahu’s mouthpiece, accusing Bensouda of being a “hapless pawn of Palestinian terrorists”.
He suggested that other states threaten to pull their contributions, deny ICC staff the travel visas necessary for their investigations and even quit the court.
That would destroy any possibility of enforcing international law – an outcome that would delight both Israel and the US.
It would render ICC little more than a dead letter, just as Israel, backed by the US, prepares to press ahead with the West Bank’s annexation.
Canada Joins ‘Friendly States’ in Opposing ICC War Crimes Investigation in Palestine
Palestine Chronicle | February 26, 2020
The Canadian government has submitted a letter to the International Criminal Court (ICC), in which it declared support for the Israeli position, thus rejecting the ICC jurisdiction over cases of alleged war crimes committed by Israel in Palestine.
The Canadian Jewish News (CJN), which reported on the letter, said that Ottawa has communicated its position to the Court on February 14, although the content of the letter has not been made public until today.
In the letter, Canada, which reminded the Court that its “financial contribution to the ICC will be $10.6 million this year,” stated that it does not recognize Palestine as a state and that the ICC has no jurisdiction on the case that is presented by the State of Palestine.
The Canadian decision followed a public demand last December by Israeli Prime Minister Benjamin Netanyahu to Canadian Prime Minister Justin Trudeau to condemn a preliminary report by the ICC that has a “reasonable basis” to investigate Israeli war crimes in the occupied territories.
Netanyahu’s letter, which was obtained by the Canadian Globe and Mail newspaper, asserted the position which was eventually adopted by the Canadian government, that the ICC has no jurisdiction over the case because Palestine does not meet the criteria of statehood.
Netanyahu’s letter read in part:
“In light of our special relations and the steadfast friendship between our countries, I urge you to publicly condemn this erroneous decision, to acknowledge there is not a Palestinian state, that the court has no jurisdiction in this matter, which involves political issues to be determined by the parties, and to voice your deep concerns regarding its dangerous ramifications to the court and the region.”
The intense Israeli lobbying followed a statement by the ICC chief prosecutor Fatou Bensouda, in which she declared to be “satisfied that there is a reasonable basis to proceed with an investigation into the situation in Palestine”.
“In brief, I am satisfied that war crimes have been or are being committed in the West Bank, including East Jerusalem, and the Gaza Strip,” she said.
Two days after Ottawa communicated its position to the ICC, Netanyahu praised what he called “efforts” by “friendly states” to prevent the ICC from launching an investigation.
ICC delays, Israeli belligerence and PA complacency
By Ramona Wadi | MEMO | January 23, 2020
As expected, the International Criminal Court has cranked its bureaucratic delays into motion over the proposed investigation into Israeli war crimes. The ICC’s Chief Prosecutor Fatou Bensouda’s statement was deemed to be “too long and exceeded the amount of pages allowed for filing” such a proposal. This has been cited despite a request for an extension of page length due to “the unique and complex factual and legal circumstances in this situation.”
Bensouda now has to file a new request, upon which judges are allocated 120 days to reach a decision about opening an investigation. For Israel, the delay is a first step in its campaign to discredit not just the ICC, which has attracted its fair share of criticism over the years, but also, and most importantly, to remove the possibility that the state will, at long last, face international accountability for its actions.
There are already weaknesses in Bensouda’s approach, as reported by the Jerusalem Post. So far, she has been indecisive about whether or not the Israel Defence Forces (IDF) will be investigated for war crimes, despite their obvious involvement. The war crimes charge about illegal settlements is also limited; those built on stolen Palestinian land before 2014 will be exempted from the investigation.
While Israeli Prime Minister Benjamin Netanyahu is rallying the international community against the ICC, with some countries following his lead in criticising Bensouda’s decision, the Palestinian Authority has remained largely silent. The Israeli government has attempted to slander the ICC’s possible investigation as “a full frontal attack on democracies, both on the democracies’ right to defend themselves, and on Israel’s right, the Jewish people’s right, to live in their ancestral homeland, the Land of Israel.” According to Netanyahu, the international community should target the ICC and its officials with sanctions. This threat is unlikely to happen, but it highlights the discrepancy between Israeli lobbying and the PA’s silence.
Having fulfilled its duty and submitted its claim to the ICC, the PA’s attention remains focused on the moribund two-state compromise. The discussion on how both this paradigm and the absence of its fruition have contributed to Israel’s war crimes trajectory is not a priority for the PA, despite the fact that the Oslo Accords, for example, as well as the international community’s defence of Israel’s security narrative, have contributed to war crimes against the Palestinian people.
As far as PA leader Mahmoud Abbas is concerned, it is as if Europe has played no role in facilitating Israeli war crimes, as long as it continues to position itself as the prime interlocutor of the two-state “solution”. In his latest meeting with French President Emmanuel Macron, Abbas reiterated that Europe’s tenacity to preserve the two-state paradigm gives “hope to our people of the possibility of achieving peace and stability.” The ICC simply wasn’t on Abbas’s discussion agenda.
The current delay does not bode well for the Palestinians. Since the international community decided to support Israel’s colonial project, they have been forced to stand by and watch as recognition of their rights is kept as remote as ever. That the ICC deems it suitable to stall a process in which Israel can be scrutinised judicially should be a cause of concern to the PA, as it stands alongside international responsibility for contributing to the plight of Palestine and its people.
In a Preemptive Move, Netanyahu Calls for ‘Sanctions’ against ICC
The Palestine Chronicle | January 21, 2020
Right-wing Israeli Prime Minister Benjamin Netanyahu called for imposing sanctions on the International Criminal Court (ICC), following an earlier announcement by the court that it intends to investigate alleged war crimes in the occupied Palestinian territories.
“The US government under President Trump has spoken forcefully against the ICC for this travesty, and I urge all your viewers to do the same, to ask for concrete actions, sanctions, against the international court – its officials, its prosecutors, everyone,” Netanyahu said during an interview with Trinity Broadcasting Network.
Meanwhile, the ICC announced on Tuesday that it will delay its debate on the issue, which is intended to determine “whether it has the jurisdiction to probe alleged Israeli war crimes in the West Bank, Gaza and East Jerusalem due to a procedural error related to the filing’s page limit,” The Guardian newspaper reported.
Editor of The Palestine Chronicle, Palestinian journalist Ramzy Baroud commented that “the high level of the ICC investigations places the legal push against Israel at an entirely new level.”
“This is uncharted territory for Israel, the United States, Palestine, the ICC, and the international community as a whole. There is little doubt that some joint Israeli-American effort is already underway to develop strategies aimed at countering, if not altogether dismissing, the ICC investigation,” Baroud added.