Category Archives: International Criminal Court

Despite Ambiguity in International Law, Palestinians are Winning the ‘Legitimacy War’

‘International law’ remains one of the most discussed terms in the context of the Israeli occupation of Palestine. It is almost always present, whether the discussion pertains to the Israeli wars and siege on Gaza, the expansion of illegal Jewish settlements in the West Bank or the encroaching apartheid throughout Israel and the Occupied Territories.

Despite the importance and relevance of the term, however, it rarely translates into anything tangible. The Israeli siege on Gaza, for example, has continued, unabated, for nearly 14 years, without international law serving as a protector of Palestinian civilians against Israeli violations of human rights. More recently, on September 13, the Israeli government approved 1,000 illegal settlement units in the West Bank, in stark violation of international law. It is likely that Israel will go ahead with it, anyway.

With regard to violating international law, Israel is in a unique category of its own, for Israel’s behavior is always governed by its military strength and the backing of its Western allies.

To gain more insight into the relationship between international law, conflict resolution and accountability, I spoke with Professor Richard Falk, one of the world’s leading experts on international law and former UN Special Rapporteur on Palestinian Human Rights.

Of particular relevance to our discussion are the current Palestinian efforts at pursuing international action to hold alleged individual Israeli war criminals accountable at the International Criminal Court (ICC). The fact that the Court has agreed to investigate alleged war crimes in occupied Palestine has generated an angry response from Israel and unprecedented sanctions from Washington, targeting ICC judges and staff, including Prosecutor, Fatou Bensouda.

I asked Professor Falk about the ‘limited scope’ of the ICC investigation, as the Court will only be looking into Israeli war crimes, thus, for now, excluding crimes against humanity, among other illegal practices that should be applicable in the case of Israel.

“The scope of the investigation is something that is ill-defined, so it is a matter of political discretion,” Professor. Falk said, adding that “the Court takes a position that needs to be cautious about delimiting its jurisdiction and, therefore, it tries to narrow the scope of what it is prepared to investigate.”

“I don’t agree with this view  …  but it does represent the fact that the ICC, like the UN itself, is subject to immense geopolitical pressure,” Falk told me. Still, the seasoned international law expert described the ICC investigation as a “breakthrough”.

“It’s a breakthrough even to consider the investigation, let alone the indictment and the prosecution of either Israelis or Americans that was put on the agenda of the ICC, which led to a pushback by these governments  … Israel has denounced the Court as if it is improper to examine any State that claims the matter of geopolitical impunity. So you have a core denial of the rule of law.”

Undeniably, this breakthrough and the advanced position of international institutions regarding the illegitimacy of the Israeli occupation are the outcome of the insistent effort put in by Professor Falk and other champions of international law throughout the years. In fact, the relentless attempts aimed at silencing Falk — and others like him — were carried out so that their criticism of Israel’s violations did not, eventually, lead to such dreaded investigations, like that of the ICC.

“There are very militant Zionist-oriented NGOs, like UN Watch, that engage in defamatory kinds of activities and use all their resources and energy to persuade people, including the UN Secretary-General, to criticize me and urge my dismissal or some type of sanctions,” Falk reflected on the challenges he faced during his term at the UN between 2008-14.

Fortunately, but also tellingly, “in the end, the role of Special Rapporteur was respected  … and there was so much support for my activity, including foreign ministries and also from outside the Islamic world. I felt that it was an important kind of presence to maintain.”

“The Zionist groups were, of course, very frustrated and they didn’t try to respond to my reports on the violations of human rights in the Occupied Territory; instead, they concentrated on defaming and smearing the messenger rather than addressing the message,” Falk said, identifying the very essence of the strategy used by pro-Israel groups, whether at the UN or elsewhere.

I also asked Professor Falk about the term ‘Israeli occupation’ as, in my limited understanding, the term has been devised by the Geneva Conventions — and previous international definitions — to regulate a transitional period during which an Occupying Power is in charge of the welfare and well-being of the civilian population living in an Occupied Territory.

“International law is quite ambiguous about the duration of a military occupation and Israel has made a kind of specious argument that the Geneva Conventions and the normal law governing belligerent occupation doesn’t apply here, because this is disputed sovereignty rather than a case where another country has been occupied,” Falk said.

Coupled with US-western support and vetoes at the Security Council, Israel has historically exploited this ambiguity to entrench — instead of ending — its occupation of Palestine.

Since international law “doesn’t provide an endpoint to the Occupation, the most effective way of challenging it from an international law perspective is that Israel has committed so many fundamental breaches of the obligations of an Occupying Power — the establishment of the settlements, the incremental annexation, the integration of Jerusalem into the sovereign State of Israel..”

“They are all fundamental violations of the Fourth Geneva Convention and they represent an effort to make the end of Occupation not possible in the sense that it was meant: turning the society back to the civilian population that is occupied,” Falk continued, describing this situation as a “serious flaw, legally and politically.”

“But is there a reason for optimism?” I asked Professor Falk, whose energy and tireless work continue to define this indefatigable warrior of human rights.

“As colonialism and oppression lost their acceptance as forms of legitimate political behavior, the political balance shifted and the perseverance of national struggles turned out to be more formidable than the weaponry at the disposal of the colonial powers,” Falk said.

According to Professor Falk, history is clearly on the side of Palestinians, who are already “winning the legitimacy war”.

The post Despite Ambiguity in International Law, Palestinians are Winning the ‘Legitimacy War’ first appeared on Dissident Voice.

The Neverending Holocausts of the Neoliberal Order

Biochemist, writer, humanitarian activist, and artist, Gideon Polya has had a selection of his essays gathered into a compendium titled US-Imposed Post-9/11 Muslim Holocaust & Muslim Genocide (Korsgaard Publishing, 2020). The compendium is important because it brings to the forefront, for anyone who cares an iota for peace and social justice, the horrible crimes of the “mendacious and politically dominant neoliberal One Percenters” wreaking holocausts and genocides. Polya draws a distinction between the two in that while both involve a massive number of killings, genocides are carried out with an “intent to destroy.” For me, these two are synonymous and interchangeable because, where it concerns militarism, who ever heard of an unintentional holocaust? When the fatalities become so huge, it must be that the killers are aware of what they are doing; ergo, there is intent in the killings.1

Polya does not write in euphemistic niceties. He speaks straight to the matter and sees it as crucial to honesty, and such honesty is needed to bring to an end the holocausts. Accordingly, he is highly critical of the state and corporate media for lies of commission and lies of omission. The latter he considers more insidious because what is unstated cannot be refuted. Effectively, the state and corporate media is complicit in the history of genocides up to today.

The genocides are many. Some are arcane and while enormous, many people will never have heard of them; e.g., the Bengali Holocaust where, from 1943 to 1945, 6-7 million Indians perished under the auspices of the racist genocidaire Winston Churchill, and the WWII Chinese holocaust whereby Japanese invaders put 35 million Chinese to death.

Polya examines the genocides in separate chapters from Bengal to Afghanistan, Iraq, Libya, Iran, Syria, Somalia, Yemen, Palestine, India, and of the Rohingya forced out of Myanmar — and many more in the text. A superfluity of the genocides are targeted at Muslims. Genocides are not merely carried out through warring and physical violence. Polya also addresses the opiate holocaust, the air pollution holocaust, and the climate genocide. Polya also finds that the International Criminal Court is complicit as a bystander to genocides, describing it as “a cowardly, racist, degenerate and look-the-other-way organization… a holocaust-ignoring and genocide-ignoring organization…” (p 143)

Polya addresses global avoidable mortality: “The post-1950 excess mortality has been 1.3 billion for the World, 1.2 billion for the non-European World and 0.6 billion for the Muslim World…” (p 10) Polya does not shirk from criticizing his home country of genocide in the millenial homeland of Aborigines (“Australia — a nation that has exterminated all but 50 of 250 Indigenous languages and Aboriginal nations, with the rest at great risk” [p 32]) and abroad, along with much of the West. The author identifies the lead war criminal as “the Zionist-backed US War on Muslims (aka the US War on Terror)…” (p 19)

Readers are informed that the United States, which was born out of a genocide against Indigenous nations, has invaded 70 countries since independence in 1776. The current US-waged genocide against Muslims, argues the professor, is rooted in the US false flag of 9-11. In Iraq, this led to 1.5 million violent deaths and another 0.8 million avoidable deaths from war-imposed deprivation. Polya calculates 34 million avoidable deaths in 20 countries post-9-11.

Throughout the book, Polya provides and explains statistics and footnotes (unfortunately, there is no index) to the wars, killings, and excess mortality in country after country. The statistics provide a revealing and necessary lens on imperialist insouciance to the lives of Others. At times the presentation of stats is irksome because of over-repetition, as is the excessive iteration of the Genocide Convention. Editing would have helped to eliminate repetitive reading of parts of the book.

By encouraging the cultivation of opium in Afghanistan, the US has unleashed addiction around the world, even in the US. Polya charged, “Presidents Bush, Barack Obama and Donald Trump have been the worst drug pushers in history since Great Britain’s Queen Victoria …” (p 127) Iran, which shares a long border with Afghanistan, has been particularly burdened by the opium trade. Yet it is responsible for 75% of the world’s opium seizures and 25% of the world’s morphine and heroin seizures. (p 126) Nonetheless, the US-imposed opiate holocaust has killed 33,000 Iranians and 5.2 million worldwide. (p 123)

Although the genocides are US-imposed, the Jewish/Celtic Australian author takes a harsh aim at his home country and the Jewish state. He writes of “the ongoing Aboriginal genocide in which some two million Indigenous Australians have died untimely deaths…” (p 233) In 1778, there were 350-759 different Aboriginal tribes whereas only 150 survive today with all except 20 endangered. (p 233)

The author decries “the ethnic cleansing of 90% of Palestine by a nuclear terrorist, racist Zionist-run, genocidally racist, democracy-by-genocide Apartheid Israel.” (p 340)

Polya notes Jewish-assisted genocide extends beyond killing Palestinians. “Apartheid Israel is intimately involved in Aung San Suu Kyi-led Myanmar’s Rohingya Genocide … the Maya Indian Genocide in Guatemala, the Sri-Lankan Tamil Genocide, the South Sudan Civil War, the Syrian Genocide, the Iraqi Genocide and the ongoing, endless Muslim Holocaust and Muslim Genocide.” (p 247)

Polya is scathing in his denunciation of Zionism: “Zionism is egregious, genocidal racism and racist Zionists and all their supporters should be sidelined from public life, as have other racists such as neo-Nazis, Nazis, Apartheiders and the Klu Klux Klan.” (p 248)

And, holy genocidal complicity Batman, the US taxpayers have bankrolled Israel to the tune of $40 trillion in today’s dollars! (p 302)

Polya offers solutions, among them enacting BDS, exposing journalists who omit genocides, a 4% annual global wealth tax that would wipe out avoidable deaths globally, mandatory inclusion of externalities in the pricing of goods and services, and replacing neoliberalism with social humanism. Neoliberalism, writes Polya, is a “ruthless ideology … ultimately responsible for the carnage of the ongoing, 21st century Muslim Holocaust and Muslim Genocide …” (p 356)

People genuinely in support of a world of peace and social justice should be informed of the horrendous crimes humans commit against other humans. Read US-Imposed Post-9/11 Muslim Holocaust & Muslim Genocide and become informed. Readers may be skeptical of the numbers that Polya presents and the methodology, but the killings are real.

Informed people must speak out about the evil, racist criminality of destroying swaths of humans. Polya exhorts readers: “Silence kills and silence is complicity.”

  1. Thus, while Polya differentiates, I will use either of the terms, holocaust and genocide, interchangeably in this review.

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USA’s Strangulation of the International Criminal Court

On 2 September, 2020, the US sanctioned two officials of the International Criminal Court (ICC) for investigating into alleged war crimes by US forces and the Central Intelligence Agency (CIA) in Afghanistan since 2003.The officials are ICC prosecutor Fatou Bensouda, and the ICC’s head of Jurisdiction, Complementary, and Cooperation Division, Phakiso Mochochok (sanctioned for having materially assisted Prosecutor Bensouda). Announcing this decision, Secretary of State Michael Pompeo said, “the United States is taking action to protect Americans from unjust and illegitimate investigation by the International Criminal Court (ICC), which threatens our sovereignty and poses a danger to the United States and our allies…The ICC’s recklessness has forced us to this point, and the ICC cannot be allowed to follow through with its politically-driven targeting of U.S. personnel.”

The sanctions have racially targeted the two African individuals among the five officials in the ICC’s Office of the Prosecutor (OTP). Despite possible links to the Afghanistan investigation on account of their judicial positions, the US has chosen not to sanction Director of the Investigations Division Michel de Smedt, Deputy Prosecutor James Stewart, and Director of the Prosecutions Division Fabricio Guariglia.

Through the sanctions, Bensouda and Mochochok have been included in the Specially Designated Nationals and Blocked Persons list, maintained by the Office of Foreign Assets Control (OFAC). The consequences of being designated include:

  • “any assets the person has in the United States are frozen;
  • the individual can no longer conduct transactions in U.S. dollars which may occur anywhere in the world;
  • persons, including financial institutions, cannot conduct transactions with or provide services to the designated individual;
  • the designated individual and their family members are barred from entering the United States; and
  • anyone who materially assists the designated individual can themselves be designated.”

American Hostility toward ICC

The US government’s hatred of the ICC boils down to one primary concern: the possibility that US citizens may be prosecuted and convicted by the court for grisly conduct supported by the American empire. As a result, the US has been in conflict with ICC from the start, trying to subvert its judicial capacities. One month after the ICC officially came into existence on July 1, 2002, US President George Bush signed the American Service members’ Protection Act (ASPA), which limited U.S. government assistance to the ICC; curtailed military assistance to countries that ratified the Rome Statute (the treaty establishing ICC); and authorized the President to use “all means necessary and appropriate to bring about the release” of certain U.S. and allied persons who may be detained or tried by the ICC.

As the US believes that ICC is a threat to its imperialist excesses, top officials of the country have never relented in their vituperation and destabilization of the intergovernmental organization. Secretary of State Mike Pompeo has called ICC a “kangaroo court”. Similarly, Attorney-General William Barr said that the US Justice Department had “received substantial credible information that raises serious concerns about a long history of financial corruption and malfeasance at the highest levels in the office of the prosecutor.” President Trump, while addressing UN General Assembly, stated, “United States will provide no support or recognition to the International Criminal Court. As far as America is concerned the ICC has no jurisdiction, no legitimacy, and no authority.” Such villificatory language reached its apogee when John Bolton gave a speech to the Federalist Society in Washington, D.C on 11 September, 2018. During the speech, he dubbed ICC as (1) a “supranational tribunal” that targeted “America’s senior political leadership” and (2) a “free-wheeling global organization claiming jurisdiction over individuals without their consent.” If that was not enough, he further said in a thuggish tone: “The United States will use any means necessary to protect our citizens and those of our allies from unjust prosecution by this illegitimate court. We will not cooperate with the ICC. We will provide no assistance to the ICC. We will not join the ICC. We will let the ICC die on its own. After all, for all intents and purposes, the ICC is already dead to us.”

The Afghanistan Investigation

In November 2017, the currently sanctioned Prosecutor Bensouda asked for authorization from the ICC’s judiciary to investigate crimes against humanity and war crimes by the Taliban and their affiliated Haqqani Network; war crimes of ill-treatment by the Afghan intelligence agency National Directorate for Security and the Afghan National Police; and war crimes of torture by US military forces deployed in Afghanistan and in secret detention facilities operated by the CIA. Bensouda requested a full investigation because US administrations and courts have consistently chosen not to prosecute the torturers. While torture was banned in 2009 by former President Barack Obama, the torturers were allowed to get off scot-free. Talking about this decision to award impunity to the torturers, Obama had said, “You know, it is important for us not to feel too sanctimonious in retrospect about the tough job that those folks had. And a lot of those folks were working hard under enormous pressure and are real patriots.”

In response to this potential investigation, the US revoked Bensouda’s entry-visa on 4 April, 2019 and Pompeo hubristically stated, “I’m announcing a policy of US visa restrictions on those individuals directly responsible for any ICC investigation of US personnel…If you’re responsible for the proposed ICC investigation of US personnel in connection with the situation in Afghanistan you should not assume that you still have, or will get, a visa or that you will be permitted to enter the United States,”.

Facing the US-sponsored public campaign of defamation and aggressions, the Pre-Trial Chamber II of the ICC rejected Bensouda’s request on 12 April, 2019, – 8 days after the visa revocation- expressing concern over (1) the “availability of evidence for crimes dating back so long in time”; (2) the prospect of attaining meaningful cooperation from relevant actors; and (3) the “significant amount of resources” necessary to fund this sort of investigation considering the ICC’s budget. The Pre-Trial Chamber believed that there was no reasonable basis to believe the investigation served “the interests of justice” although it accepted that there was a reasonable basis to believe that war crimes and crimes against humanity were committed in the territory of Afghanistan by various actors.

The rejection of Bensouda’s request was closely tied with USA’s attempts to prevent its imperialist cruelty from being fully exposed by a judicial body. Article 15 of the Rome Statute provides that “victims may make representations to the Pre-Trial Chamber either in support or opposition to the Prosecutor’s request for an investigation.” In Ms. Bensouda’s case, 680 out of 699 applications submitted to the court by victims and victims groups welcomed the requested investigation. Despite the support of the victims, the US unilaterally impeded the investigation, nakedly asserting the ruthlessness of its imperial power.

To contest the rejection of Bensouda’s Afghanistan investigation, the OTP and the legal representatives of 3 victims appeared before the Pre-Trial Chamber in June 2019. Six months later, the Appeals Chamber of the ICC held a three-day public hearing where the OTP, victims’ representatives, the defense lawyer of the Afghan government and several civil society members presented their arguments against or in support of the Pre-Trial Chamber’s decision. After this public hearing, the Appeals Chamber of the ICC decided unanimously on 5 March, 2020, to authorize the Prosecutor to commence the investigation into the crimes committed on the territory of Afghanistan since 1 May 2003, as well as other crimes that have a nexus to the armed conflict in Afghanistan and were committed on the territory of other States Parties, including Poland, Romania and Lithuania by the US army and CIA.

Enraged by ICC’s actions, President Donald Trump issued an executive order  on 11 June, 2020, that authorized asset freezes and family travel bans against ICC officials and potentially targeted others who assist ICC investigations. In the executive order, Trump said that the authorization of investigation into US war crimes in Afghanistan threatens “to infringe upon the sovereignty of the United States and impede the critical national security and foreign policy work of United States Government and allied officials”. Building upon these unfounded claims, he went on to say: “I therefore determine that any attempt by the ICC to investigate, arrest, detain, or prosecute any United States personnel…constitutes an unusual and extraordinary threat to the national security and foreign policy of the United States, and I hereby declare a national emergency to deal with that threat.” All these statements amount to an arrogant declaration of impunity for any American involved in war crimes, genocide and crimes against humanity. Furthermore, through these conceited declarations, the US is blatantly asserting that it is justified to kill people in pursuit of expansionist aims.

USA’s Contorted Arguments

In view of the audacity shown by the ICC in authorizing the Afghanistan investigation, new sanctions have been imposed on two ICC officials in the contemporary period. To legitimize its aggressive actions against the ICC, the US has relied on contorted legal arguments.

Repeatedly, the US has declared that it is not a party to the Rome Statute that created the ICC and, being a non-signatory national, is not bound by the norms created by the ICC. Contrary to this reasoning, the core crimes within the ICC’s jurisdiction-genocide, crimes against humanity, and war crimes-are crimes of universal jurisdiction and thus, the nationals of the US can be subject to prosecution before the court. Echoing this point, the UN General Assembly has declared: “States shall co-operate with each other on a bilateral and multilateral basis with a view to halting and preventing war crimes and crimes against humanity, and shall take the domestic and international measures necessary for that purpose.” Moreover, nationals of non-Party States have long been exposed to potential prosecution without the consent of their governments. The US itself has accepted this by becoming party to treaties such as the Geneva Conventions and the UN Convention against Torture which obligate the parties to pursue the malefactor regardless of whether they are a national of a state that is party to the treaty in question.

By punishing the ICC for attempting to expose the barbarism of its war on Afghanistan, the US has overtly outlined the coercive foundations upon which its empire is built. Slowly and steadily, it is becoming clear that the US is guided by imperialist interests and is willing to flout any law to expand its empire.

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List of Israeli Targets Leaked: Tel Aviv Fears the Worst in ICC Investigation of War Crimes

When International Court of Justice (ICC) Prosecutor, Fatou Bensouda, confirmed last December that the Court has ample evidence to pursue a war crimes investigation in occupied Palestine, the Israeli government responded with the usual rhetoric, accusing the international community of bias and insisting on Israel’s ‘right to defend itself.’

Beneath the platitudes and typical Israeli discourse, the Israeli government knew too well that an ICC investigation into war crimes in Palestine could be quite costly. An investigation, in itself, represents an indictment of sorts. If Israeli individuals were to be indicted for war crimes, that is a different story, as it becomes a legal obligation of ICC members to apprehend the criminals and hand them over to the Court.

Israel remained publicly composed, even after Bensouda, last April, elaborated on her December decision with a 60-page legal report, titled: “Situation in the State of Palestine: Prosecution Response to the Observations of Amici Curiae, Legal Representatives of Victims, and States.”

In the report, the ICC addressed many of the questions, doubts and reports submitted or raised in the four months that followed her earlier decision. Countries such as Germany and Austria, among others, had used their position as amici curiae — ‘friends of the court’ — to question the ICC jurisdiction and the status of Palestine as a country.

Bensouda insisted that “the Prosecutor is satisfied that there is a reasonable basis to initiate an investigation into the situation in Palestine under article 53(1) of the Rome Statute, and that the scope of the Court’s territorial jurisdiction comprises the West Bank, including East Jerusalem, and Gaza (“Occupied Palestinian Territory”).”

However, Bensouda did not provide definitive timelines to the investigation; instead, she requested that the ICC’S Pre-Trial Chamber “confirm the scope of the Court’s territorial jurisdiction in Palestine,” an additional step that is hardly required since the State of Palestine, a signatory of the Rome Statute, is the one that actually referred the case directly to the Prosecutor’s office.

The April report, in particular, was the wake-up call for Tel Aviv. Between the initial decision in December till the release of the latter report, Israel lobbied on many fronts, enlisting the help of ICC members and recruiting its greatest benefactor, Washington – which is not an ICC member – to bully the Court so it may reverse its decision.

On May 15, US Secretary of State, Mike Pompeo, warned the ICC against pursuing the investigation, targeting Bensouda, in particular, for her decision to hold war criminals in Palestine accountable.

The US slapped unprecedented sanctions against the ICC on June 11, with President Donald Trump issuing an ‘executive order’ that authorizes the freezing of assets and a travel ban against ICC officials and their families. The order also allows for the punishing of other individuals or entities that assist the ICC in its investigation.

Washington’s decision to carry out punitive measures against the very Court that was established for the sole purpose of holding war criminals accountable is both outrageous and abhorrent. It also exposes Washington’s hypocrisy — the country that claims to defend human rights is attempting to prevent legal accountability by those who have violated human rights.

Upon its failure to halt the ICC legal procedures regarding its investigation of war crimes, Israel began to prepare for the worst. On July 15, Israeli daily newspaper, Haaretz, reported about a ‘secret list’ that was drawn up by the Israeli government. The list includes “between 200 and 300 officials”, ranging from politicians to military and intelligence officials, who are subject to arrest abroad, should the ICC officially open the war crimes investigation.

Names begin at the top of the Israeli political pyramid, among them Prime Minister Benjamin Netanyahu and his current coalition partner, Benny Gantz.

The sheer number of Israeli officials on the list is indicative of the scope of the ICC’s investigation, and somehow is a self-indictment, as the names include former Israeli Defense Ministers — Moshe Ya’alon, Avigdor Lieberman and Naftali Bennett; current and former army chiefs of staffs — Aviv Kochavi, Benny Gantz and Gadi Eisenkot and current and former heads of internal intelligence, the Shin Bet — Nadav Argaman and Yoram Cohen.

Respected international human rights organizations have already, repeatedly, accused all these individuals of serious human rights abuses during Israel’s lethal wars on the besieged Gaza Strip, starting with the so-called ‘Operation Cast Lead’ in 2008-9.

But the list is far more extensive, as it covers “people in much more junior positions, including lower-ranking military officers and, perhaps, even officials involved in issuing various types of permits to settlements and settlement outposts.”

Israel, thus, fully appreciates the fact that the international community still insists that the construction of illegal colonies in occupied Palestine, the ethnic cleansing of Palestinians and the transfer of Israeli citizens to occupied land are all inadmissible under international law and tantamount to war crimes. Netanyahu must be disappointed to learn that all of Washington’s concessions to Israel under Trump’s presidency have failed to alter the position of the international community and the applicability of international law in any way.

Furthermore, it would not be an exaggeration to argue that Tel Aviv’s postponement of its plan to illegally annex nearly a third of the West Bank is directly linked to the ICC’s investigation, for the annexation would have completely thwarted Israel’s friends’ efforts aimed at preventing the investigation from ever taking place.

While the whole world, especially Palestinians, Arabs and their allies, still anxiously await the final decision by the Pre-Trial Chamber, Israel will continue its overt and covert campaign to intimidate the ICC and any other entity that aims to expose Israeli war crimes and to try Israeli war criminals.

Washington, too, will continue to strive to ensure Netanyahu, Gantz, and the “200 to 300” other Israeli officials never see their day in court.

However, the fact that a “secret list” exists is an indication that Tel Aviv understands that this era is different and that international law, which has failed Palestinians for over 70 years, may for once deliver, however small, a measure of justice.

Will the ICC Investigation Bring Justice for Palestine?

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.

What You Need to Know about the ICC Investigation of War Crimes in Occupied Palestine

Fatou Bensouda, Chief Prosecutor of the International Criminal Court (ICC), has, once and for all, settled the doubts on the Court’s jurisdiction to investigate war crimes committed in occupied Palestine.

On April 30, Bensouda released a 60-page document diligently laying down the legal bases for that decision, concluding that “the Prosecution has carefully considered the observations of the participants, and remains of the view that the Court has jurisdiction over the Occupied Palestinian Territory.”

Bensouda’s legal explanation was itself a preemptive decision, dating back to December 2019, as the ICC Prosecutor must have anticipated an Israeli-orchestrated pushback against the investigation of war crimes committed in the Occupied Territories.

After years of haggling, the ICC had resolved in December 2019 that, “there is a reasonable basis to proceed with an investigation into the situation in Palestine, pursuant to article 53(1) of the Statute.”

Article 53(1) merely describes the procedural steps that often lead, or do not lead, to an investigation by the Court.

That Article is satisfied when the amount of evidence provided to the Court is so convincing that it leaves the ICC with no other option but to move forward with an investigation.

Indeed, Bensouda had already declared late last year that she was “satisfied that (i) war crimes have been or are being committed in the West Bank, including East Jerusalem, and the Gaza Strip… (ii) potential cases arising from the situation would be admissible; and (iii) there are no substantial reasons to believe that an investigation would not serve the interests of justice.”

Naturally, Israel and its main Western ally, the United States, fumed. Israel has never been held accountable by the international community for war crimes and other human rights violations in Palestine. The ICC’s decision, especially if the investigation moves forward, would be an historic precedent.

But, what are Israel and the US to do when neither are state parties in the ICC, thus having no actual influence on the internal proceedings of the court? A solution had to be devised.

In a historic irony, Germany, which had to answer to numerous war crimes committed by the Nazi regime during World War II, stepped in to serve as the main defender of Israel at the ICC and to shield accused Israeli war criminals from legal and moral accountability.

On February 14, Germany filed a petition with the ICC requesting an “amicus curiae”, meaning “friend of the court”, status. By achieving that special status, Germany was able to submit objections, arguing against the ICC’s earlier decision on behalf of Israel.

Germany, among others, then argued that the ICC had no legal authority to discuss Israeli war crimes in the occupied territories. These efforts, however, eventually amounted to nil.

The ball is now in the court of the ICC pre-trial chamber.

The pre-trial chamber consists of judges that authorize the opening of investigations. Customarily once the Prosecutor decides to consider an investigation, she has to inform the Pre-Trial Chamber of her decision.

According to the Rome Statute, Article 56(b), “… the Pre-Trial Chamber may, upon request of the Prosecutor, take such measures as may be necessary to ensure the efficiency and integrity of the proceedings and, in particular, to protect the rights of the defence.”

The fact that the Palestinian case has been advanced to such a point can and should be considered a victory for the Palestinian victims of the Israeli occupation. However, if the ICC investigation moves forward according to the original mandate requested by Bensouda, there will remain major legal and moral lapses that frustrate those who are advocating justice on behalf of Palestine.

For example, the legal representatives of the ‘Palestinian Victims Residents of the Gaza Strip’ expressed their concern on behalf of the victims regarding “the ostensibly narrow scope of the investigation into the crimes suffered by the Palestinian victims of this situation.”

The ‘narrow scope of the investigation’ has thus far excluded such serious crimes as crimes against humanity. According to the Gaza legal team, the killing of hundreds and wounding of thousands of unarmed protesters participating in the ‘Great March of Return’ is a crime against humanity that must also be investigated.

The ICC’s jurisdiction, of course, goes beyond Bensouda’s decision to investigate ‘war crimes’ only.

Article 5 of the Rome Statute – the founding document of the ICC – extends the Court’s jurisdiction to investigate the following “serious crimes”:

(a) The crime of genocide

(b) Crimes against humanity

(c) War crimes

(d) The crime of aggression

It should come as no surprise that Israel is qualified to be investigated on all four points and that the nature of Israeli crimes against Palestinians often tends to, constitute a mixture of two or more of these points simultaneously.

Former United Nations Special Rapporteur on Palestinian Human Rights (2008-2014), Prof. Richard Falk, wrote in 2009, soon after a deadly Israeli war on the besieged Gaza Strip, that:

Israel initiated the Gaza campaign without adequate legal foundation or just cause, and was responsible for causing the overwhelming proportion of devastation and the entirety of civilian suffering. Israeli reliance on a military approach to defeat or punish Gaza was intrinsically ‘criminal’, and as such demonstrative of both violations of the law of war and the commission of crimes against humanity.

Falk extended his legal argument beyond war crimes and crimes against humanity into a third category. “There is another element that strengthens the allegation of aggression. The population of Gaza had been subjected to a punitive blockade for 18 months when Israel launched its attacks.”

What about the crime of apartheid? Does it fit anywhere within the ICC’s previous definitions and jurisdiction?

The International Convention on the Suppression and Punishment of the Crime of Apartheid of November 1973 defines apartheid as:

a crime against humanity and that inhuman acts resulting from the policies and practices of apartheid and similar policies and practices of racial segregation and discrimination, as defined in article II of the Convention, are crimes violating the principles of international law, in particular the  purposes and principles of the Charter of the United Nations, and constituting a serious threat to international peace and security.

The Convention came into force in July 1976, when twenty countries ratified it. Mostly western powers, including the United States and Israel, opposed it.

Particularly important about the definition of apartheid, as stated by the Convention, is that the crime of apartheid was liberated from the limited South African context and made applicable to racially discriminatory policies in any state.

In June 1977, Addition Protocol 1 to the Geneva Conventions designated apartheid as, “a grave breach of the Protocol and a war crime.”

It follows that there are legal bases to argue that the crime of apartheid can be considered both a crime against humanity and a war crime.

Former UN Special Rapporteur on Palestinian Human Rights (2000-2006), Prof. John Dugard, said this soon after Palestine joined the ICC in 2015:

For seven years, I visited the Palestinian territory twice a year. I also conducted a fact-finding mission after the Operation Cast Lead in Gaza in 2008, 2009. So, I am familiar with the situation, and I am familiar with the apartheid situation. I was a human rights lawyer in apartheid South Africa. And I, like virtually every South African who visits the occupied territory, has a terrible sense of déjà vu. We’ve seen it all before, except that it is infinitely worse. And what has happened in the West Bank is that the creation of a settlement enterprise has resulted in a situation that closely resembles that of apartheid, in which the settlers are the equivalent of white South Africans. They enjoy superior rights over Palestinians, and they do oppress Palestinians. So, one does have a system of apartheid in the occupied Palestinian territory. And I might mention that apartheid is also a crime within the competence of the International Criminal Court.

Considering the number of UN resolutions that Israel has violated throughout the years — the perpetual occupation of Palestine, the siege on Gaza, and the elaborate system of apartheid imposed on Palestinians through a large conglomerate of racist laws (culminating in the so-called Nation-State Law of July 2018) — finding Israel guilty of war crimes, among others “serious crimes”, should be a straightforward matter.

But the ICC is not entirely a legal platform. It is also a political institution that is subject to the interests and whims of its members. Germany’s intervention, on behalf of Israel, to dissuade the ICC from investigating Tel Aviv’s war crimes, is a case in point.

Time will tell how far the ICC is willing to go with its unprecedented and historic attempt aimed at, finally, investigating the numerous crimes that have been committed in Palestine unhindered, with no recourse and no accountability.

For the Palestinian people, the long-denied justice cannot arrive soon enough.

The Coronavirus Pandemic, Like Other Global Catastrophes, Reveals the Limitations of Nationalism

We live with a profound paradox.  Our lives are powerfully affected by worldwide economic, communications, transportation, food supply, and entertainment systems.  Yet we continue an outdated faith in the nation-state, with all the divisiveness, competition, and helplessness that faith produces when dealing with planetary problems.

As we have seen in recent weeks, the coronavirus, like other diseases, does not respect national boundaries, but spreads easily around the world.  And how is it being confronted?  Despite the heroic efforts of doctors, nurses, and other medical personnel, the governments of individual nations have largely gone their own way―some denying the pandemic’s existence, others taking fragmentary and sometimes contradictory steps, and still others doing a reasonably good job of stemming the contagion.  The UN’s World Health Organization (WHO) should be at the center of a global campaign to contain the disease.  But its early warnings were ignored by many national officials, including those of the U.S. government, who rejected the WHO’s coronavirus testing kits.  Moreover, the WHO has limited funding―more than three-quarters of which now comes from voluntary contributions rather than from the dwindling assessments paid by individual nations.  Undermined by parochial national concerns, the WHO has been less effective in safeguarding the health of the world’s people than it could have been.

Similarly, the unfolding climate disaster presents a stark contrast between a worldwide problem and the behavior of national governments.  The world’s leading climate scientists have concluded that urgent changes are needed by 2030 to rescue the planet from irreversible climate catastrophe, including extreme heat, drought, floods, and escalating poverty.  And yet, despite an upsurge of social movements to save the planet, national governments have been unable to agree on remedial action, such as sharps curbs on fossil fuel production.  Indeed, two of the biggest oil producers―the Russian and Saudi Arabian governments―are currently opening the spigots in an oil production war.  For its part, the U.S. government has turned sharply against the solar power industry and is heavily subsidizing the fossil fuel industry.  This national irresponsibility occurs despite the urgent pleas of UN leaders.  “The point of no return is no longer over the horizon,” UN Secretary-General Antonio Guterres told reporters in late 2019.  “It is in sight and hurtling toward us.”

Warfare, of course, constitutes yet another problem of global dimensions.  Over the centuries, war has shattered countless lives and brought human civilization to the brink of annihilation.  It is estimated that, during the 20th century alone, war (including two world wars) caused 187 million deaths, plus far greater numbers of injuries, widespread devastation, and economic ruin.  Furthermore, nuclear war, unleashed in 1945 as the culmination of World War II, today has the potential to wipe out virtually all life on earth.  And how are individual nations preparing to avert this global catastrophe?  By getting ready to fight wars with one another!  In 2018 (the last year for which figures are available), world military expenditures rose to a record $1.8 trillion, with the governments of the United States and China leading the way.  Ignoring the 2017 UN Treaty on the Prohibition of Nuclear Weapons, the nine nuclear-armed nations, at enormous cost, are currently busy ramping up their nuclear production facilities and producing a new generation of nuclear weapons.  In response to the looming nuclear menace and climate catastrophe, the editors of the Bulletin of the Atomic Scientists recently reset the hands of their famous “Doomsday Clock” at an unprecedented 100 seconds to midnight.

Nor are these the only global threats that the nation-state system has failed to adequately address.  Among other things, the world is undergoing a refugee crisis of vast proportions, suffering from the predatory policies of multinational corporations, and experiencing widespread poverty and violations of human rights.  Do we really think that the current crop of flamboyant, flag-waving nationalist leaders, busy promising to make their countries “great” again, are going to solve these or other global problems?

Of course, for centuries there have been great ethical, intellectual, and political leaders who have sought to move beyond nationalism by emphasizing the common humanity of all people.  “The world is my country,” declared the adopted American revolutionary Tom Paine, and “all mankind are my brethren.”  Albert Einstein dismissed nationalism as “an infantile disease,” while British novelist H.G. Wells, like Einstein, became a staunch advocate of world government.  The idea of limiting national sovereignty in the interest of global security helped spark the creation of the League of Nations and, later, the United Nations.

But, unfortunately, the rulers of numerous countries, though often paying lip service to international law and international security, have never accepted significant limitations on their own government’s ability to do what it liked in world affairs.  Thus, major military powers hamstrung the League and the United Nations by refusing to join these world organizations, withdrawing from them, vetoing or ignoring official resolutions, and refusing to pay their annual dues or other assessments.  A particularly flagrant example of contempt for global governance occurred in mid-March 2020, when the U.S. secretary of state, Mike Pompeo, ridiculed the International Criminal Court and threatened its staff (and even their family members) for daring to investigate U.S. war crimes in Afghanistan.

Thus, although robust and capable global governance is now more necessary than ever, a primitive, shortsighted nationalism continues to frustrate efforts to come to grips with massive global problems.

Even so, an extraordinary danger presents humanity with an extraordinary opportunity.  The coronavirus disaster, like the other current catastrophes ravaging the planet, might finally convince people around the globe that transcending nationalism is central to survival.

Crimes in Afghanistan: Fatou Bensouda’s Investigative Mission

It seemed an unlikely prospect.  The International Criminal Court has tended to find itself accused of chasing up the inhumane rogues of Africa rather than those from any other continent.  It has also been accused of having an overly burdensome machinery and lethargy more caught up with procedure than substance.  Critics fearing a behemoth snatching soldiers from the armed forces of various states could rest easy, at least in part.

Law tends to be a manifestation of power and international law, in particular, tends to be a manifestation of consensus.  And the powerful rarely give their consent in matters of trying crimes against humanity when it comes to their own citizens.  Qualifications and exemptions abound, often cited with a certain sneer.

This explains the sheer fury and curiosity caused by the decision of the ICC’s Appeals Chamber on March 5 authorising Chief Prosecutor Fatou Bensouda to proceed with an investigation into alleged crimes committed in Afghanistan from 2003.  The interest was not merely in the commission of crimes by any one force: the Taliban and various “armed groups”, members of the Afghan armed forces and “alleged crimes by the US Forces and the CIA” featured.  But the actions of US and Afghan forces was bound to arouse much interest, given a UN report alleging more killings in the first three months of 2019 than attributed to the Taliban.  (The figures, respectively, were 227 civilians killed by insurgent groups and 305 deaths caused by Afghan and international forces.)

The initial decision of the Pre-Trial Chamber II (April 12 2019) had gone against the Prosecutor’s efforts that had commenced in November 2017.  While the pre-trial chamber accepted that the brief established a reasonable basis to consider crimes that fell within the jurisdiction of the ICC, time had elapsed since the preliminary examination in 2006 and the evolving political scene in Afghanistan.

As ever, the jurisdiction of war crimes and crimes against humanity is a political thing: to authorise such an investigation, in the words of the 2019 media release, would have diverted “valuable resources prioritizing activities that would have better chances to succeed.”  Nor had cooperation with the Prosecutor been forthcoming in Afghanistan itself.  It was a decision that caused a fair share of consternation among human rights critics and activists.  One question kept being asked:  Had the ICC folded before pressure from the Trump administration?

The argument of pressure was a hard one to dispel.  In 2019, the Trump administration announced that it would revoke or deny visas to any members of the ICC connected with investigating alleged war crimes by US personnel in Afghanistan.  That body, charged US Secretary of State Mike Pompeo, was “attacking America’s rule of law,” an interesting formulation suggesting how partial that rule can be for a certain country.

Despite this backdrop of intimidation, the Appeals Chamber had a change of heart.  According to presiding judge Piotr Hofmański, “The prosecutor is authorised to commence an investigation into alleged crimes committed on the territory of Afghanistan since May 1, 2003, as well as other alleged crimes that have a nexus to the armed conflict in Afghanistan.”  The pre-trial chamber had erred in identifying “additional considerations” as to whether the prosecutor could proceed with the investigation.  It was not for the body to consider “the interests of justice” as part of that authorisation, merely whether there was “a reasonable factual basis to proceed with an investigation, in the sense of whether crimes have been committed, and whether potential cases(s) arising from such an investigation appear to fall within the Court’s jurisdiction.”

Pompeo was sufficiently incensed by the decision to call the ruling a “truly breathtaking action by an unaccountable, political institution masquerading as a legal body.”  He also had the prospects of peace on his mind, considering the ruling disruptive given that it came “just days after the United States signed a historic peace deal on Afghanistan.”

Resistance against the ICC from the United States is far from new.  Henry Kissinger feared it, and said so, suggesting it would preside in thuggish majesty and impunity citing universal jurisdiction as its basis of operation.  His views were rebuked by former Nuremberg war crimes prosecutor Benjamin B. Ferencz.  “The innocent,” he remarked pointedly, “need not fear the rule of law.”

But fear and loathing for the ICC has been a recurrent theme.  In 2018, then national security adviser John R. Bolton, famed for his opposition to international institutions, insisted that the US would not “cooperate with the ICC.  We will provide no assistance to the ICC.  And we certainly will not join the ICC.  We let the ICC die on its own.”

Such a view sits in that particularly odd canon of US political thinking that dismisses aspects of international law – notably those involving breaches of human rights – as matters of convenience and sentiment.  Such a view holds that Washington’s enemies deserve trial and punishment at the hands of international law; alleged offences by US forces should be a matter of US jurisdiction.

It also bucks the idea put forth by US prosecutor Robert H. Jackson at the Nuremberg war crimes trials in November 1945 that international tribunals are not products “of abstract speculations nor … created to vindicate legalistic theories.”  Jackson’s enunciated views would see US officials participate, extensively, in the creation of tribunals in the Balkans and Rwanda.  Indeed, as Ferencz observed in 2001, numerous former presidents of the American Society of International Law and the American Bar Association acknowledged that “it would be in the best interests of the United States and its military personnel of the United States to accept” such a body.

While it is hard to see the US surrendering any soldiers for trial before judges of the ICC, the very acceptance that it has jurisdiction to investigate alleged crimes committed by such personnel enlarges its traditional and cautious scope.  International law has seen a turn up for the books.

To Keep the Rohingya Alive

The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.
— Article 1. The Genocide Convention

On November 11, 2019 The Gambia filed at the International Court of Justice an Application of proceedings against Myanmar, which alleged violations of the Genocide Convention committed by Myanmar against the Rohingya people.1 January 23, 2020, the International Court of Justice in a unanimous ruling rejected Myanmar’s attempts to dismiss the case and granted The Gambia’s request for provisional measures to protect the Rohingya people, demanding the Government of Myanmar cease its acts of atrocity against the Rohingya.2

The Court, whose rulings are irrevocable, found that the Rohingya qualified as a protected group under the Genocide Convention. The ruling supports the finding of the United Nations Fact Finding Mission which in September 2019 realized that the Rohingya people were “at a serious risk of genocide.”3 The Fact Finding Mission also found the “inference of genocidal intent.”4 The Court’s Judges unanimously ordered Myanmar to comply with the Convention on Genocide and in four months to report to the Court on the government’s compliance.5

The Court and media’s reluctance to simply call Myanmar’s treatment of Rohingya “genocide” is possibly muted in order to move ahead immediately with protecting the Rohingya from further genocidal acts. It’s officially recognized that the entire group is at risk of genocide and the few means of protecting vulnerable groups from genocide are now to be tested.6 Canada has a particular interest in this since Parliament has declared Myanmar’s actions toward the Rohingya, genocide, and has supported The Gambia’s case at the International Court of Justice.

The corporate global media reporting of Aung San Suu Kyi’s defense of Myanmar is, like Myanmar’s military reports of its own innocence, surreal when challenged with evidence of what has happened in the Rakhine since 2012.7

My Night’s Lantern genocide warning8 of August 27, 2012:

Myanmar (Burma): Buddhist persecution of Muslim groups which have lived in Burma for generations broke into rioting and killing in June; reports continue of ethnic cleansing of Rohingya Muslim peoples; 20 mosques are burnt; tens of thousands have fled; Bangladesh has at points closed its borders to more Muslim refugees. In response to protest by Saudi Arabia, the U.S. State Department denies that Myanmar’s armed forces, primarily Buddhist, are trying to ethnically cleanse Muslims. The Rohingya minority is at risk. Myanmar does not permit the Rohingya, citizenship. Rohingya women require government permits to wed (a marriage license is also required in North America but without a bribe). Genocide warning. This year’s flooding in the South, extreme with a hundred thousand recent refugees, may increase the demand for food and shelter nationally. Military commands and private companies have confiscated tens of thousands of acres of farmland belonging to traditional farmers. Natural disasters of global warming may be a factor of ethnic cleansing and genocides. Historically the correlation between failure of a country’s agricultural base and subsequent genocide was evidenced in the Cambodian genocide under Pol Pot. Partial sources online:9

Individual news accounts as well as organizational reports through the years since give evidence of an ongoing intention to wipe out the Rohingya by genocide. While it’s stated that genocide can only be declared by the courts, common sense and understanding precede this; the case at international court was a result of unavoidable evidence. When referring to Myanmar’s genocide of the Rohingya many legal authorities use the words “alleged genocide.” The phrase is an insult to the victims. Knowing of the atrocities is it humane to still use the word “alleged”? The need for legal accuracy is complicated by the large amounts of money involved which have impeded recognizing this crime of genocide.

For example: from my Night’s Lantern entry of November 2, 2012:

An article by Tony Cartalucci (October 29, 2012 Alternative Thai News Network) explains the strategic importance of Kyaukpyu where the violence has occurred, as the starting point of an oil pipeline to China; de-stabilization of the local population impedes the progress of China / Myanmar economic cooperation. His article notes longstanding links between the ‘Pro-Democracy’ Movement supporting Aung San Suu Kyi, and anti-Muslim sentiment in Burma. To further democracy and ‘human rights’ in Burma the U.S. National Endowment for Democracy in 2011 gave grants of over $275,000 apiece to the following organizations: American Center for International Labor Solidarity, International Republican Institute, and the National Democratic Institute for International Affairs, a half million to unnamed organizations supporting “ethnic language short wave radio and satellite television broadcasts…” and somewhat smaller grants to about fifty other causes building contemporary Burma.

Not to ignore the obvious, the Myanmar military required arms for its expanded operations. To quote at length from the July 1, 2019 Night’s Lantern record of the genocide’s development:

The following may help to understand the world community’s inability to demand accountability from Myanmar: the World Bank is proceeding with a large investment in businesses in the Rakhine as the area cleared of its Rohingya inhabitants opens to new settlers. This may explain ongoing acts of violence against Rohingya which discourage their return. Aung San Suu Kyi is reported attempting to raise European investment in the country by strumming the commonality of ‘problems with Muslims’ to Czech and Hungarian State leaders as Europe slides to the right. With Myanmar’s human rights violations the West has slowed investment as Asian investment increases. The ratio of investment from the West and from the Asian countries is about 1 to 5. Of the world’s silence and inaction the problem is nakedly money and particularly Asian investment. With Myanmar under arms embargoes by the EU and US, Israel is said to be the only power supplying arms to Myanmar with sales of 11 million dollars of weapons in 2017, despite efforts against the arms trade within Israel (Buzz), but the Stockholm International Peace Research Institute extends the list of those recently supplying Myanmar with arms – to China, Russia, the Ukraine, and India (Asia Times). AOAV (Action on Armed Violence of the UK) finds that in 2016-2017 Great Britain sold 537 thousand pounds sterling of weapons to Myanmar; a large portion of this was security-related equipment. Arms sales by nations on the UN Security Council and Beijing (where Muslims and Christians are under pressure) which provides substantial support for Myanmar’s government makes it unlikely that the Security Council will take any action to counter the genocide in Myanmar (these countries could become vulnerable to charges of complicity). Myanmar’s tactics in avoiding accountability for its alleged genocide against the Rohingya and other minority groups provide a warning to the UN Convention on Genocide itself, as international organizations become corrupted to the service of economic interests. Partial sources online:10

To return to the global media’s role in downplaying the suffering and attempted destruction of an entire people it helps to simply understand that the media are protecting the sitting governments of their respective countries. The governments are protecting the corporate interests and industries. These corporate interests are requiring genocide for increased profits; links between investments and genocide are deeply suppressed by the media. Nor are these a focus of U.N. attention. By its nature any corporately based reporting of genocide is bound to be corrupt; U.N. reports at this point in history have a greater chance for credibility; a U.N. report has to be transparent as well as stand up to serious vetting by opposing groups. Material presented in court cases is also more likely to be verifiably true.

The situation of the Rohingya is currently under court review in at least three venues. The Gambia’s case at the International Court of Justice is discussed here. Concurrently Myanmar’s acts against the Rohingya are also under investigation at the International Criminal Court which has power to bring individuals to trial and punish violations of the Genocide Convention. The ICC has given its Chief Prosecutor the go-ahead for a thorough investigation of Myanmar’s treatment of Rohingya. Charges can be made without approval of the Security Council. A difficulty arises in a separate issue; the ICC Chief Prosecutor has decided there is grounds to pursue war crimes committed in Israel and awaits the Court’s sureness that it has the jurisdiction to do so. Israel objects. The Palestine Authority has subscribed to the Court. Israel has not. Israel’s Netanyahu has urged the world’s Christian Evangelicals to stand against the World Court11, (i.e., against international law). While this might protect Israel from charges of genocidal acts against Palestinians, it would also deprive the world’s peoples an ability to counter and correct Myanmar for its crimes against the Rohingya.

As noted on Night’s Lantern, November 22nd:

On November 20th the Burmese Rohingya Organisation UK (BROUK) filed a case in Buenos Aires Argentina against Aung San Suu Kyi, the former president of Myanmar Thein Sein, the former president Htin Kyaw, and several military authorities, for their efforts to exterminate the Rohingya. The prosecution would rely on the principle of universal jurisdiction.

The leading prosecutor was UN Special Rapporteur for human rights in Myanmar 2008 to 2014, Tomás Ojea, who has told Agence France Presse:

This complaint seeks the criminal sanction of the perpetrators, accomplices and cover-ups of the genocide. We are doing it through Argentina because they have no other possibility of filing the criminal complaint anywhere else.”12

Filing of complaints against state genocide or official protagonists is rendered next to impossible within the legal systems of the United States and Canada, in the U.S. by tacit agreement of the judicial system and the American Bar, as well as legislation which buffers those in office from attack, and in Canada by the same but also the requirement that a case would require permission of Canada’s Minister of Justice. These are gray areas which could be readjusted under political pressure from the people and this may be why the issue of genocide is kept subject to government controls.

North American countries are subject to the lobbying as well as covert actions by forces committing genocide. But also, the application of the Convention has to rely on initiating attorneys. In the U.S. particularly, this area of the law wasn’t featured in law school curriculum of those currently practicing. It’s possibly a condition of practicing law in the U.S. to avoid any attempt by war protesters and anti-nuclear activists to lay charges under domestic law against the country’s leaders for violating the Genocide Convention. Curiously the refrain of “never again” finds justice placed in the hands of lawyers. This is not altogether good. In court the business of lawyers is less to discover truth than to represent the client. But if you consider the Genocide Convention without the lawyers and as a sample of the people’s resistance, and insistence on humanity and decency, it becomes a revolutionary document.

If it’s clear that Myanmar has committed genocide against the Rohingya, it’s up to those party to the Convention to prevent and punish the genocide. The International Court of Justice has taken the first and huge step of ordering prevention. If Myanmar ignores the Order, the world’s nations are bound to enforce the prevention. Countries who don’t would then be violating the Treaty and under legal systems reflecting justice the officials responsible could be charged with complicity in genocide. Governments insisting on genocide have to be replaced.

• First posted: Gerald and Maas Night’s Lantern

  1. “Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar) – Verbatim Record.” December 10, 2019. Public Sitting. The International Court of Justice.
  2. “Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar),” Press Release, January 23, 2020, The International Court of Justice.
  3. Ibid.
  4. p. 18. #55, “Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar) Order,” January 23, 2020, International Court of Justice.
  5. While The Gambia was able to successfully base its claim of the Court’s jurisdiction on the Genocide Convention‘s Article IX, the Peoples Republic of China has not acceded to Article IX. As a principle economic backer of Myanmar and within its own commitments to the Convention, The People’s Republic of China may under law be reluctant to support the Court’s “Order.”
  6. Of close to a million Rohingya refugees in Bangladesh refusing to return, there are problems with a government of Bangladesh relocation program of 100,000 to ‘Bhasan Char’  (floating island). The island, 34 kilometers offshore, is periodically entirely submerged in water.
  7. Night’s Lantern Genocide Warnings
  8. My original entries noted here appear on the “Suppressed news” pages of Night’s Lantern. “Archives: genocide related materials”
  9. “US Denies Ethnic Cleansing Campaign against Rohingya Muslims in Myanmar,” Gianluca Mezzofiore, August 9, 2012, International Business Times; “Saudi Arabia Accuses Myanmar of ‘Ethnic Cleansing’ of Muslim Rohingya,” Gianluca Mezzofiore, August 7, 2012, International Business Times; “US rewarding Myanmar for massacring Muslims,” Kevin Barrett, August 26, 2012, Press TV; “The Global War on Islam,” August 25, 2012, strategyworld.com; “Letter from America: Myanmar Government is lying,” Dr. Habib Siddiqui, August 28, 2012, Asian Times; “Burma: President must forbid unfair seizing of farmland,” Zin Linn, August 26, 2012, Asian Tribune.”
  10. “Aung San Suu Kyi meets with Hungary’s Orbán to lament their “growing Muslim populations,” Alex Ward, June 7, 2019, Vox; “The World Bank is rewarding ethnic cleansing in Myanmar,” Azeem Ibrahim, May 30, 2019, The Washington Post; “Czech PM Backs Investment in Myanmar as State Counselor Visits Prague,” Nan Lwin, June 4, 2019, The Irrawaddy; “Asia Investors Split With West Over Myanmar’s Rohingya Crackdown,” Livia Yap and Tom Redmond, March 6, 2019, Bloomberg; “Up in Arms About Israeli Arms Exports,” Adi Pick, Feb. 15, 2019, Buzz; “Burma’s Suu Kyi joins Hungary’s Orbán in promoting anti-Muslim chauvinism,” Peter Symonds, June 12, 2019, World Socialist Web Site; “UK arms exports to Myanmar,” AOAV, November 15, 2018, Action on Armed Violence (UK); “Myanmar arms trade 1990-2016: Who sold what?” Shakeeb Asrar, September 16, 2017, Al Jazeera.
  11. “Netanyahu Drumming Up Opposition to ICC as World Leaders Descend on Israel,” MEE staff, January 21, 2020, Middle East Eye; “Netanyah equates Iran’s nuclear program to the Nazi genocide,” January 22, 2020, Jewish News Syndicate.
  12. “Aung San Suu Kyi named in local lawsuit over crimes against Rohingya,  November.13, 2019, Buenos Aires Times.