JNS.ORG ARTICLE
Israel launches campaign to discredit International Criminal Court inquiry
Posted on January 19, 2015 by JNS.org
By Shlomo Cesana/Israel Hayom/JNS.org
The Israeli government has launched a public diplomacy campaign to discredit the legitimacy of the International Criminal Court’s (ICC) recent decision to start an inquiry into what the Palestinians call Israeli “war crimes” in the disputed territories.
According to ICC prosecutor Fatou Bensouda, the inquiry—which was initiated after a request by the Palestinian Authority (PA)—is not a formal investigation, but rather “a process of examining the information available in order to reach a fully informed determination on whether there is a reasonable basis to proceed with an investigation pursuant to the criteria established by the [ICC’s] Rome Statute.” [So this isn't even a proper inquiry; it is merely an inquiry to see if there is BASIS to commence an ICC inquiry.]
Palestinian Authority President Mahmoud Abbas recently signed the Rome Statute in order to join the ICC after failing to get a U.N. Security Council resolution passed that called for Israel’s withdrawal from the disputed territories by 2017.
Israel’s campaign against the ICC inquiry will focus on the fact that the because the charges were filed by the PA, which is not a state, the court has no authority to act. In addition, the campaign will point out the court’s bias against Israel—a country on the frontline of the war against global terrorism that makes sure to abide by international law by way of an independent legal system. [Anybody that's ever broken international laws has had an 'independent legal system'. As for 'court's bias against Israel', isn't it a bit too early for that?]
The Israeli government decided to launch the public diplomacy campaign at an emergency meeting in response to the ICC decision that was convened by Prime Minister Benjamin Netanyahu. The meeting, which took place at Netanyahu’s office, was attended by Israeli security, legal, and diplomatic officials.
The ICC’s decision to launch the inquiry into Israeli actions is “the height of hypocrisy and the opposite of justice,” Netanyahu said Sunday at the start of his weekly cabinet meeting, two days after the court announced the inquiry.
“During my years of public service, both as U.N. ambassador and as prime minister, I encountered these kinds of events, but this decision by the [ICC] prosecutor is in a league of its own,” Netanyahu said. “It gives international legitimacy to international terrorism.” [It's a war crimes inquiry.]
The prime minister said Israel would fight the ICC’s decision with every means it has available, including the enlistment of its allies. Along those lines, Israel is lobbying member states of the ICC to cut funding for the tribunal, Israeli Foreign Minister Avigdor Lieberman said on Sunday. Israel, which like the United States does not belong to the ICC, hopes to dent funding for the court that is drawn from its 122 member states in accordance with the size of member states’ economies, said Lieberman. [USA & Israel are not members of ICC.]
“We will demand of our friends in Canada, in Australia, and in Germany simply to stop funding it,” Lieberman told Israel Radio.
“This body (the ICC) represents no one. It is a political body,” he added.
A loss of funding would exacerbate the ICC’s already serious financing problems. Last week, Reuters reported that the unexpected arrival of an indicted defector from Joseph Kony’s Lord’s Resistance Army in Uganda would put prosecutors under severe financial strain.
The overwhelming bulk of the court’s funding comes from advanced economies of Europe and North Asia. Japan is the largest contributor, giving $23.7 million in 2014, followed by Germany, which gave $15.7 million. France, Britain, and Italy are also major contributors to the ICC’s budget, which will rise 7 percent to $164 million in 2015. Canada contributed $6.5 million. Japanese Prime Minister Shinzo Abe and Canadian Foreign Minister John Baird visited Israel this week, and the Israeli government planned to raise the ICC funding issue with both foreign leaders.
“Israel is adamant that it will have the right to defend itself against all those who wish to propagate terror and other attacks against its citizens, against its territory,” Netanyahu said at the start of a meeting with Abe. “We will not have our hands ties by anyone, including the ICC. We will do what is necessary to defend ourselves wherever we need to do so.”
Despite Israel’s lobbying efforts, even countries that are traditionally close to the Jewish state are unlikely to renege on their treaty commitments to fund the ICC, said Kevin Jon Heller, a professor of law at London’s School of Oriental and African Studies.
“Germany is probably the least likely country in the world to go against the ICC no matter how supportive of Israel it has traditionally been,” Heller said. “It was one of the very leading states in the creation of the ICC.”
ICC prosecutors said Friday that they would examine “in full independence and impartiality” crimes that may have occurred in the disputed Palestinian territories since June 13, 2014. This allows the court to delve into alleged war crimes during Operation Protective Edge, which took place in July and August, but not into Hamas terrorists’ June 12 kidnapping and murder of three Israeli teens in Gush Etzion. Hamas on Saturday welcomed the ICC inquiry and said it was prepared to provide material for complaints against Israel. [The kidnapping is a separate event, in the lead up to OPE - here.]
http://www.jns.org/latest-articles/2015/1/19/israel-launches-campaign-to-discredit-international-criminal-court-inquiry#.VL5zrSyGOIQ=
COMMENT
It's hard to see why Israel is kicking up such a fuss when this isn't even a formal investigation. It's just a preliminary inquiry and if Israel considers they've acted within the law, then what is the problem with such an inquiry?
As Israel is not a member of ICC, the ability to conduct an inquiry into Israel's actions would, I assume, come from the fact that the Palestinian Authority recently signed up as a member of ICC.
The 'frontline of global terrorism' and 'right to defend' are phrases repeated elsewhere, to create an impression of justification and common interest (with 'global terrorism' reference).
It is interesting that USA and Israel are not members of the International Criminal Court.
According to this AHA article:
The ICC is a permanent court established by the Rome Statute
to prosecute persons for the most serious international crimes:
genocide, crimes against humanity, and war crimes. The Rome Statute is
an international treaty that has been ratified by 122 countries, and has
been signed by an additional 31 countries that have not yet ratified
it, with the United States being one of the few countries not to ratify
or sign the statute. Unlike other international courts, the ICC can only
prosecute individuals and not organizations or governments, which
allows the court to focus on high-level government officials that are
typically exempted from international prosecution for their government’s
illegal actions.
Should be interesting to see who is on the list of 31 that have opted out.
The ICC being able to prosecute only individuals is strange, I would think. Why not also organisations and governments?
Anyway, the article indicates that the ICC can therefore focus on high-level government officials which typically slip out of the reach of "prosecution for their government's illegal actions."
USA's excuse for not being on-board the ICC sounds like a load of garbage. The likelihood is that the USA is protecting its higher-ups from prosecution by not signing up, so it is in effect leaving the door wide open to Rome Statute abuses by its government and officials.
Did the Senate just open the U.S. up to ICC prosecution?
By Mark Kersten December 10, 2014
Dec. 9 saw the much anticipated release of the U.S. Senate’s “torture report,” outlining in harrowing and tragic detail the CIA’s program of “enhanced interrogation techniques” in its “global war on terror.” On Dec. 2, the Office of the Prosecutor at the International Criminal Court also released a report in which it made clear that it was inching closer to opening an official investigation into crimes in Afghanistan – including U.S. interrogation techniques. These developments could very well expose U.S. officials to formal investigation – and potentially prosecution – by the ICC. But is the court truly prepared to confront Washington head-on?
The international justice and human rights world is abuzz with the possibility that accountability for U.S.-sponsored and perpetrated torture and so-called “enhanced interrogation techniques” may finally be at hand. In the span of just a few days, the once naive aspiration that U.S. officials would come under the judicial microscope of the ICC has been resuscitated. However, any move to investigate and prosecute alleged crimes by U.S. citizens in Afghanistan needs to be set within the context of the ICC’s interest in maintaining positive relations with the United States while pushing for accountability for crimes committed by even the most powerful of states.
Despite the United States being a non-member state, no relationship has dominated the court’s first decade as much as that with Washington. The popular narrative, one that the court and its advocates regularly reiterate, is one of consistent struggle and resilient progress. The storyline goes something like this: Despite the United States voting against the creation of the ICC in 1998, in one of his last acts while in office, President Bill Clinton signed the Rome Statute. However, not long after the court became a functioning entity, then-U.S. Under Secretary of State for Arms Control and International Security John Bolton was dispatched to “unsign” the statute, an unprecedented political move. What followed was a series of hostile measures by the United States, including the passage of the American Service-Members Protection Act (or “The Hague Invasion Act”) which prohibited the United States from providing funds to the court and bestowed upon the president the right to use “all necessary measures” to repatriate any U.S. citizen detained by the court. At the same time, the administration successfully employed coercive diplomacy against over a hundred states to ensure that they signed “Bilateral Immunity Agreements,” guaranteeing that they would never surrender a U.S. official or soldier to the ICC.
During President George W. Bush’s second term, relations began to thaw. In 2005, the United States allowed the passage of a U.N. Security Council resolution referring Darfur to the ICC. When President Obama arrived on the scene, relations continued to warm. The United States began actively participating in ICC conferences, identified areas in which it could cooperate with the court and spoke of its “positive engagement”with the ICC. In addition, the State Department expanded its Rewards for Justice Program to include ICC indictees and played an important role in the surrender of Bosco Ntaganda, charged with committing war crimes in the Democratic Republic of Congo, to The Hague.
As David Bosco cogently argues in his book, “Rough Justice,” the ICC has generally sought to accommodate U.S. interests. Seeking to improve its relationship with the world’s most powerful country – and the country with the best surveillance techniques and thus access to the kind of evidence the court needs – prosecutors avoided stepping on Washington’s toes, neither investigating alleged abuses by U.S. officials nor intervening in states where the United States had preexisting political interests. This avoidance of confrontation, however, may be about to change in dramatic fashion.
That allegations of torture by U.S. officials in Afghanistan were mentioned in the ICC prosecutor’s report may seem, at first glance, to be window dressing to assuage the concerns of many that the court is toothless when it comes to confronting powerful states. But behind this unprecedented and explicit mention of potential U.S. culpability is a court that appears more willing than ever to finally push the United States over accountability for international crimes in Afghanistan. However, in the wake of some serious setbacks including the collapse of the case against Kenyan President Uhuru Kenyatta, is the ICC in a position to do so?
There are two lines of thought on whether the ICC should pursue a formal investigation of U.S. officials for their use of torture in Afghanistan. First, there is the argument that the court is in too weak of a position to pursue the prosecution of citizens from great powers. The fear here is that the positive relationship the court worked so hard to earn shouldn’t be sacrificed for a fight that the ICC can’t win. The second viewpoint is that the court is in too weak of a position and thus it must confront abuses from great powers. The weakness of the ICC, in this view, stems from its unwillingness to challenge powerful states and its propensity to focus on weaker states in Africa. Strength will only come when the ICC fulfills its promise to transcend, rather than accommodate, global powers.
Unsurprisingly, U.S. officials aren’t thrilled with the prospect of an ICC investigation. Stephen Rapp, U.S. ambassador-at-large for war crimes issues, responded to the ICC’s report by insisting that, because the United States isn’t a member-state, the court has no right to investigate alleged war crimes committed by its citizens. But this is unlikely to resonate with human rights and international justice advocates, many of whom view it as another reiteration of U.S. exceptionalism.
With the release of the torture report, it will become increasingly difficult for the ICC not to press forward. Expectations that the court confront allegations of international crimes by Western states have never been higher and, as Eugene Kontorovich observes, the torture report “gives significant impetus and ammunition to the ICC’s investigation.” With the CIA’s dirty laundry now airing in the political winds, it will be nearly impossible for the court to reverse course and avoid confronting U.S. abuses in Afghanistan. [Eugene Kontorovich is a professor at Northwestern University School of Law, and an expert on constitutional and international law.]
Still, advocates of accountability should not get too far ahead of themselves. The gears of justice at the ICC grind notoriously slowly. Moreover, the court’s endgame is not to prosecute U.S. officials. Instead, it is to galvanize domestic accountability for any alleged crimes committed by Western officials. Indeed, it is not within the ICC’s institutional interests to pick a fight it can’t win with the United States or incur the wrath of Washington’s resultant hostility. The prosecutor’s report on Afghanistan is thus not so much a threat to the United States as a signal to take justice for alleged torture seriously. Doing so would require going high up the political food chain, to those in the Bush administration “most responsible” for deploying torture as a means of war. The question is: Will the United States take the opportunity to finally pursue accountability for alleged international crimes committed by its citizens in Afghanistan or not? The world – and the ICC – is watching. [As if USA ever plans on being held accountable.]
Mark Kersten is a researcher based at the London School of Economics and the creator of the blog, Justice in Conflict.
http://www.washingtonpost.com/blogs/monkey-cage/wp/2014/12/10/did-the-senate-just-open-the-u-s-up-to-icc-prosecution/
I can't even believe what I've read here. USA did everything it could to avoid being liable to ICC investigations, and it even went that step further by passing some 'Hague Invasion Act' and bullying over a hundred sovereign nations into signing a guarantee that they will not hand over US citizens -- who happen to be accused war criminals.
Compare what you've just read in the Washington Post article above to this AHA spin published in 2013:
The main speaker at the event was Stephen Rapp, who currently serves
as the U.S. Ambassador-at-Large for Global Criminal Justice. Rapp
started his address by expounding on some of the reasons why the U.S.
hasn’t been a more active participant in the ICC, while also taking time
to describe some of the many ways that the U.S. currently works to
protect the human rights of people across the world. [Hahaahahah]
One of Rapp’s key points was that long-standing political and
philosophical traditions in our country have prevented us from joining
the ICC. The most important of these traditions, according to Rapp, is
the belief by Americans that we can better help suffering people than
the international community, and that our ability to help others without
changing our national identity or culture will be threatened by joining
an international institution that has its own laws and regulations
which come from non-American societies. Additionally, Rapp felt that a
certain degree of misinformation, such as the common but mistaken belief
that the ICC is a part of the much-maligned UN, has prevented American
policy makers from advancing the relationship between the U.S. and the
ICC. [Long-standing traditions? Ummm, like bombing the f*ck out of other nations? 'Help suffering people' ... with another round of water-boarding, coups, invasions, massacres, and arming dictators or extremists?]
That guy's title should be Embassador-at-Large-for-Cr*p.
Both USA and Israel are adept at getting their own way on the international stage and they work in tandem, so I highly doubt that anything will come of the preliminary ICC inquiry into Israel's Operation Protective Edge actions.
As for an inquiry into USA activities, I'm certain that any ICC mention etc, is 100% window-dressing and that the ICC is yet another organisation that serves USA's agenda.
All of this ICC potential USA and Israel 'inquiry' stuff is probably a bit of entertainment cooked up for the sake of appearances.
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EU-NATO IMPERIALISM ❌ 