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ICC to launch probe into US war crimes in Afghanistan: Report

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Press TV – November 1, 2016

The International Criminal Court (ICC) is preparing to launch an investigation of a range of possible war crimes in Afghanistan, including those committed by US troops, according to a new report.

ICC chief prosecutor, Fatou Bensouda, will seek to initiate an investigation in the coming weeks, according to the Foreign Policy magazine, citing several knowledgeable sources.

The probe will likely be launched after the US presidential election but before the end of the year, multiple sources have indicated.

However, it is not clear whether the ICC would ever bring charges against Americans after the investigation because doing so would require significantly more evidence than the chief prosecutor’s office currently possesses, the report said.

If indeed launched, the move would mark the first time a formal ICC investigation has scrutinized US crimes.

In order to discuss the potential investigation and to express concerns about its scope, US officials recently visited the ICC, an international tribunal that sits in The Hague in the Netherlands.

The ICC has repeatedly highlighted alleged abuses of detainees by American troops between 2003 and 2005 that it believes have not been adequately addressed by the US government.
This file photo by shows the bodies of several men and a child who witnesses said were killed by a United States Army sergeant in southern Afghanistan. (AP)

“Crimes were allegedly committed with particular cruelty and in a manner that debased the basic human dignity of the victims,” the tribunal noted in a report last year.

The US government has insisted that the ICC does not have jurisdiction over US citizens because Washington never ratified the Rome Statute that established the court in the first place.

Afghanistan is still suffering from insecurity and violence years after the United States and its allies invaded the country in 2001 as part of Washington’s so-called war on terror.

In October last year, President Barack Obama announced plans to keep 9,800 US troops in Afghanistan through 2016 and 5,500 in 2017, reneging on his promise to end the war there and bring home most American forces from the Asian country before he leaves office.

November 1, 2016 Posted by | War Crimes | , , , | Leave a comment

Britain says every state should join the ICC apart from Palestine

By David Morrison | Friends of Lebanon | January 16, 2014

It is British policy to extend the jurisdiction of the International Criminal Court (ICC) to every corner of the earth, except the Palestinian territories occupied by Israel since 1967, that is, the West Bank, including East Jerusalem, and Gaza.

And it is not as if the Occupying Power isn’t committing acts that Britain regards as illegal in these territories, in particular, settlement building.  British policy on this issue as stated on the FCO website is as follows:

“Our position on Israeli settlements in the Occupied Palestinian Territories is clear: they are illegal under international law, an obstacle to peace and make a two-state solution harder to achieve.” [1]

Settlement building is a war crime

Though the British Government never says so explicitly, settlement building is a war crime under the Rome Statute which defines the offences that can be prosecuted by the ICC.  It is a war crime because it involves the Occupying Power transferring some of its own civilian population to the territory it occupies.  And under Article 8.2(b)(viii) of the Rome Statute “the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies” [2] is a war crime.

Since there is no doubt that Israel has transferred well over 500,000 Israeli civilians into territory it occupies, and that the process is still going on, there is a prima facie case that Israelis responsible for the settlement building programme, including the present Prime Minister Benyamin Netanyahu, are guilty of war crimes.  It may be that Americans and others who fund settlement building are guilty of aiding and abetting war crimes.

Yet the British Government is opposed to Palestine becoming a party to the Rome Statute so that it is possible that Israelis responsible for settlement building will be brought to account for what the British Government itself regards as illegal actions.

Challenging impunity around the world

In July last year, the British Foreign Office launched an ICC strategy paper [3], which expressed Britain’s enthusiastic support for international systems of justice in general and the ICC in particular.

A key element of British policy set out in the paper is the extension of the jurisdiction of the ICC by encouraging states that are not party to the Rome Statute of the ICC to join, with the objective of the ICC eventually acquiring universal jurisdiction. The paper explains that the British Government intends to:

  • “Work with other States Parties to encourage more states to ratify and accede to the Rome Statute and to fully implement its provisions in domestic law. …
  • “Urge States not party to the Rome Statute to consider ratifying or acceding to the Treaty …”

The paper explains:

  • “Widening the reach of the Court beyond the current 122 States Parties will increase accountability and help challenge impunity.”

Inappropriate to challenge Israeli impunity

This enthusiasm for extending ICC jurisdiction was sadly missing when Foreign Minister William Hague spoke in the House of Commons a few months later on 28 November 2012.  Then, he offered UK support for a UN General Assembly resolution granting Palestine statehood, providing Palestinian leaders promised, amongst other things, that if Palestine acquired statehood it would not become a party to the Rome Statute.

Here’s what he told the House of Commons:

“Our country is a strong supporter, across all parties, of international justice and the International Criminal Court. We would ultimately like to see a Palestinian state represented throughout all the organs of the United Nations. However, we judge that if the Palestinians were to build on this resolution by pursuing ICC jurisdiction over the occupied territories at this stage, it could make a return to negotiations impossible.” [4]

Yes, believe it or believe it not, it is British policy to extend the jurisdiction of the ICC to every corner of the earth, except the Palestinian territories occupied by Israel since 1967.  There it is apparently inappropriate for Britain to challenge impunity.

Two days later, when in retaliation for the UN granting statehood to Palestine, Israel announced plans for yet more building in settlements, William Hague reacted as follows:

“I am extremely concerned by reports that the Israeli Cabinet plans to approve the building of 3000 new housing units in illegal settlements in the West Bank and East Jerusalem. Israeli settlements are illegal under international law and undermine trust between the parties.” [5]

Dare I suggest that, if settlements are illegal under international law, then, if at all possible, those responsible should be tried in an international court and, if found guilty, punished appropriately?  Dare I suggest that, to this end, Palestine should be encouraged to accept the jurisdiction of the ICC?

Palestinian Authority tried to grant the ICC jurisdiction

In January 2009, the Palestinian Authority tried to grant the ICC jurisdiction over the occupied territories so that it would be possible for Israelis to be prosecuted by it for actions against Gaza during Operation Cast Lead.

The ICC can prosecute individuals for genocide, war crimes or crimes against humanity, as defined in the Rome Statute of the Court [2]. It acquires jurisdiction in respect of these crimes by states granting it jurisdiction under Article 12 of the Statute.  A state can grant jurisdiction to the Court

(a)  by becoming a Party to the Statute (Article 12(1)) or

(b)  by making an ad hoc declaration accepting the Court’s jurisdiction (Article 12(3)).

The ICC can try individuals for genocide, war crimes or crimes against humanity, committed in the territories of states (or by its nationals anywhere) that have granted the Court jurisdiction.

On 21 January 2009, the Palestinian Authority made an ad hoc declaration to the Court under Article 12(3) in the following terms:

“In conformity with Article 12, paragraph 3 of the Statute of the International Criminal Court, the Government of Palestine hereby recognizes the jurisdiction of the Court for the purposes of identifying, prosecuting and judging the authors and accomplices of acts committed in the territory of Palestine since 1 July 2002” [6].

It took the ICC Prosecutor over three years (until April 2012) to decide that the Court couldn’t accept the jurisdiction offered.  This decision hung on whether or not Palestine was a “state” within the meaning of Article 12(3), which says that a “State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question”.

Strangely, the Prosecutor concluded that it wasn’t up to him to decide whether or not Palestine was a “state”, within the meaning of Article 12(3), saying that “competence for determining the term “state” within the meaning of article 12 rests, in the first instance, with the United Nations Secretary General who, in case of doubt, will defer to the guidance of General Assembly” [7].

However, now that the UN General Assembly passed resolution A/RES/67/19 [8] accepting Palestine as a state, there is little doubt that Palestine can simply become a Party to the Statute under Article 12(1).  Given that Palestine has been accepted as a state by the UN, it is almost certain that the answer would be YES.

During a public discussion held at the Academie Diplomatique Internationale in Paris on 20 March 2013, Fatou Bensouda, the Prosecutor of the International Criminal Court, said that it was clear that ICC membership for the State of Palestine was Palestine’s for the asking (see John Whitbeck, Palestine and the ICC, Al Jazeera, 16 April 2013 [9]).

Whitbeck also reported Fatou Bensouda’s view on the issue of retroactivity, that is, whether individuals could be prosecuted for past crimes committed before Palestine becomes a party to the Rome Statute.  She said that she did not think that retroactivity could extend back to the birth of the court in 2002 and if any retroactivity was permitted, it would not be earlier than 29 November 2012, when the UN General Assembly recognised Palestine as a state.

Palestine to join other UN bodies?

A year has passed since Palestine was granted statehood by the UN General Assembly.  It was generally expected that, having achieved that, the Palestinian Authority would press ahead to join other bodies associated with the UN, of which there are about 20, including the ICC.

There is little doubt that, had it done so, it would have been admitted to all of them. Remember that in October 2011, a year before it achieved statehood and in the teeth of fierce opposition from the US and Israel, it was admitted to full membership of UNESCO by 107 votes to 14 with 52 abstentions.

But, it hasn’t done so, because there has been fierce pressure on it not to do so, especially from the US.  And, it has now promised theUS that it will not apply for membership of any of these bodies until April 2014 during the 9 month period of “negotiations” with Israel, brokered by the US Secretary of State, John Kerry.

It is absolutely outrageous that the US, with the support of Britain and others, has pressurised Palestinians into forgoing a possible legal means of redress against the illegal actions by the power that has held them under military occupation for almost 50 years.

Comoros asks ICC to prosecute Israelis re Mavi Marmara

On a brighter note, there is a possibility that Israelis may be arraigned before the ICC for the Israeli military assault on the Mavi Marmara on 31 May 2010.  This took place in international waters, when it was part of a humanitarian aid convoy to Gaza, and resulted in the deaths of 9 civilian passengers.

This is possible because the Mavi Marmara was registered in the Comoros Islands and the Union of the Comoros is a state party to the Rome Statute.  Under Article 12(2)(a) of the Rome Statute, the ICC has jurisdiction in respect of crimes committed, not only in the territory of a state party, but also on ships or aircraft registered in a state party.  On 14 May 2013, the Union of the Comoros requested that the ICC mount an investigation into the Mavi Marmara assault.

This request has been made under Article 14 of the Rome Statute which states:

“A State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes.” [2]

On 14 May 2013, lawyers representing the Union of the Comoros presented a document to the ICC prosecutor, under Article 14, requesting her “to initiate an investigation into the crimes committed within the Court’s jurisdiction, arising from [the Mavi Marmara] raid’’[10].  The document sought to make a case that Israeli military personnel committed war crimes (for example, ‘wilful killing’ under Article 8(2)(a)(i) of the Rome Statute) and crimes against humanity under Article 7.

The prosecutor has to conduct a preliminary examination in order to establish whether the ICC’s criteria for opening an investigation are met.  That examination is ongoing at the time of writing.

References:

[1] http://www.gov.uk/government/policies/working-for-peace-and-long-term-stability-in-the-middle-east-and-north-africa/supporting-pages/making-progress-on-the-middle-east-peace-process

[2] http://www.icc-cpi.int/NR/rdonlyres/EA9AEFF7-5752-4F84-BE94-0A655EB30E16/0/Rome_Statute_English.pdf

[3] http://www.gov.uk/government/uploads/system/uploads/attachment_data/file/223702/ICC_Strategy_Final.pdf

[4] http://www.publications.parliament.uk/pa/cm201213/cmhansrd/cm121128/debtext/121128-0001.htm

[5] http://www.gov.uk/government/news/foreign-secretary-extremely-concerned-at-proposed-new-housing-settlements-in-the-west-bank-and-east-jerusalem

[6] http://www.icc-cpi.int/NR/rdonlyres/74EEE201-0FED-4481-95D4-C8071087102C/279777/20090122PalestinianDeclaration2.pdf

[7] http://www.icc-cpi.int/NR/rdonlyres/C6162BBF-FEB9-4FAF-AFA9-836106D2694A/284387/SituationinPalestine030412ENG.pdf

[8] unispal.un.org/unispal.nsf/47d4e277b48d9d3685256ddc00612265/181c72112f4d0e0685257ac500515c6c

[9] http://www.aljazeera.com/indepth/opinion/2013/04/201341561759725150.html

[10] http://www.icc-cpi.int/en_menus/icc/structure%20of%20the%20court/office%20of%20the%20prosecutor/reports%20and%20statements/statement/Pages/otp-statement-14-05-2013.aspx

David Morrison is a Political Officer of Sadaka: The Ireland Palestine Alliance and co-author of A Dangerous Delusion: Why the West is Wrong about Nuclear Iran (April 2013).  Morrison can be reached at david@sadaka.ie.

(December 2013)

Editorial note: For a glimpse at a similar situation with Lebanon, see “Justice campaigners say US urged Lebanon not to join International Criminal Court,” by Andrew Wander, The Daily Star, 12 March 2009.

January 16, 2014 Posted by | Ethnic Cleansing, Racism, Zionism, Timeless or most popular, War Crimes | , , , , , , , , | Leave a comment

France and the ICC

By JOHN V. WHITBECK | CounterPunch | September 3, 2013

Now that Prime Minister David Cameron has sought parliamentary approval for “military action” against Syria and President Barack Obama has announced his intention to seek congressional approval, can President François Hollande, as a political if not a strictly constitutional matter, afford not to do likewise?

A parliamentary session devoted to Syria is already scheduled for September 4, although no formal vote had been planned.

Hollande’s Socialist Party has a comfortable majority in the National Assembly and a razor-thin majority in the Senate. Party discipline in France tends to be more rigid and dependable than in the U.S. and the U.K., but the most recent poll showed 64% of the French people opposed to French involvement in any “military action” against Syria.

It would therefore be both highly interesting and encouraging for the future of democracy in France if Hollande were to permit a free and open debate and vote on this important issue.

However, there is another important issue which Hollande should keep in mind or factor into his thinking if no one has yet alerted to it.

When the Rome Statute establishing the International Criminal Court was being negotiated, certain Western states insisted on a seven-year moratorium before the “crime of aggression” was added to the crimes over which the ICC would have jurisdiction if they were committed either by a State Party of the ICC or on the territory a State Party. This effectively gave habitual and potential aggressors a window of opportunity to continue committing acts of aggression, which was very fortunate for former British prime minister Tony Blair, whose country is a State Party but who therefore enjoys immunity and impunity (at least insofar as ICC jurisdiction is concerned) with respect to his role in the crime of aggression against Iraq in 2003.

However, that window of opportunity was closed on June 11, 2010, when the crime of aggression was inserted into the Rome Statute as one of the crimes over which the ICC now has jurisdiction.

While neither Syria nor the United States is among the 122 States Parties of the ICC (so that only a referral by the UN Security Council can give the ICC jurisdiction over their citizens or over crimes committed on their territory), France is a State Party of the ICC.

Article 8bis (1) of the Rome Statute, as added in 2010, reads: “For the purposes of this Statute, ‘crime of aggression’ means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.” Included in the subsequent listing of acts constituting “aggression” is, at Article 8bis (2)(b): “Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State.”

In the absence of a UN Security Council resolution authorizing “military action” against Syria, these provisions fit the aggression being planned by Presidents Obama and Hollande “like a glove”. Even the most imaginative defense lawyer would struggle to imagine a defense.

The ICC is understandably uncomfortable with the awkward fact that, in over a decade of existence, it has indicted only Africans. If for no other reason than the institutional imperative of the court’s own credibility, there is a compelling need to indict some non-African as soon as the court’s restricted jurisdiction and the gravity and exemplarity of a crime permit.

Nothing could enhance the credibility of the court more than the indictment of the head of state or government of one of the major Western powers.

At the same time, nothing else could so constructively enhance the concept and stature of international law, the belief that international law is not simply (as it has tended to be) a stick with which the rich and powerful beat the poor and weak and the idea that even the rich and powerful do not enjoy immunity and impunity before the rules of international law.

Indeed, nothing else could so effectively enhance the chances for a more peaceful world.

For any number of good reasons, it is to be fervently hoped that, in the end, François Hollande will not choose to participate in the “planning, preparation, initiation or execution” of the crime of aggression against Syria. However, should he do so, his transfer to The Hague could be the only good result of this folly.

John V. Whitbeck is a Paris-based international lawyer.

September 3, 2013 Posted by | Militarism, Timeless or most popular, War Crimes | , , , , , | 1 Comment