U.S. Secretary of State Antony Blinken and other members of the Biden Cabinet are fond of proclaiming the “rules-based international order” (RBIO) or “rules-based order” every chance they get: in press conferences, on interviews, in articles, at international fora, for breakfast, lunch, dinner, and cocktails. Along with the terms “human rights” and “democracy,” the RBIO is routinely used to claim a moral high ground against countries that they accuse of not following this RBIO, and wielded as a cudgel to attack, criticize, accuse, and delegitimate countries in their crosshairs as rogue outliers to an international order.

This cudgel is now used most commonly against China and Russia. Oddly enough, whenever the United States asserts this “rules-based order” that China (and other “revisionist powers”/enemy states) are violating, the United States never seems to clarify which “rules” are being violated, but simply releases a miasma of generic accusation, leaving the stench of racism and xenophobia to do the rest.

This is because there is a fundamental contradiction at the heart of the RBIO.

The RBIO isn’t “rules-based,” it isn’t “international,” and it confounds any sense of “order,” let alone justice. It is, at bottom, the naked exercise of U.S. imperial power and supremacy, dressed up in the invisible finery of an embroidered fiction. The RBIO is a fraudulent impersonation of international law and justice.

There are many layers to this misnomer, to be deconstructed piece by piece.

‘RBIO’ in Contrast With ‘International Law’

First, the RBIO is not “international” in any sense of the word.

There actually is a consensual rules-based international order, a compendium of agreed-upon rules and treaties that the international community has negotiated, agreed to, and signed up for. It’s called simply “international law.” This refers to the body of decisions, precedents, agreements, and multilateral treaties held together under the umbrella of the Charter of the United Nations and the multiple institutions, policies, and protocols attached to it. Although imperfect, incomplete, evolving, it still constitutes the legal foundation of the body of international order and the orderly laws that underpin it: this is what constitutes international law. The basic foundation of the UN Charter is national sovereignty—that states have a right to exist, and are equal in relations. This is not what the United States is referring to.

When the United States uses the term RBIO, rather than the existing term “international law,” it does so because it wants to impersonate international law while diverting to a unilateral, invented, fictitious order that it alone creates and decides—often with the complicity of other imperial, Western, and transatlantic states. It also does this because, quite simply, the United States does not want to be constrained by international law and actually is an international scofflaw in many cases.

The United States as International Outlaw

For example, the United States refuses to sign or to ratify foundational international laws and treaties that the vast majority of countries in the world have signed, such as the Rome Statute of the International Criminal Court (ICC), CEDAW (the Convention on the Elimination of All Forms of Discrimination Against Women), ICESCR (the International Covenant on Economic, Social, and Cultural Rights), CRC (the Convention on the Rights of the Child), ICRMW (the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families), UNCLOS (the UN Convention on the Law of the Sea), PAROS (the Prevention of an Arms Race in Outer Space), the Ottawa Treaty (the Anti-Personnel Landmines Convention), and the majority of labor conventions of the ILO (International Labor Organization). In fact, the United States harbors sweatshops, legalizes child labor (for example, in migrant farm labor), and engages in slave labor (in prisons and immigration detention centers). Even the U.S. State Department’s own 2021 Trafficking in Persons Report acknowledges severe problems in the U.S. of trafficking and forced labor in agriculture, food service, manufacture, domestic service, sex work, and hospitality, with U.S. government officials and military involved in the trafficking of persons domestically and abroad. Ironically, the United States tries to hold other countries accountable to laws that it itself refuses to ratify. For example, the United States tries to assert UNCLOS in the South China Sea while refusing—for decades—to ratify it and ignoring its rules, precedents, and conclusions in its own territorial waters.

There are also a slew of international treaties the United States has signed, but simply violates anyway: examples include the Chemical Weapons Convention, the Biological Weapons Convention, UN treaties prohibiting torture, rendition, and kidnapping, and of course, war of aggression, considered “the supreme international crime”— a crime that the United States engages in routinely at least once a decade, not to mention routine drone attacks, which are in violation of international law. Most recently, the AUKUS agreement signed between the United States and Australia violates the Nuclear Non-Proliferation Treaty (NPT) by exploiting a blind spot of the International Atomic Energy Agency (IAEA).

There are also a multitude of treaties that the United States has signed but then arbitrarily withdrawn from anyway. These include the Joint Comprehensive Plan of Action (JCPOA) with Iran, the Agreed Framework and the Six-Party Talks with North Korea, the Geneva Conventions, the Intermediate-Range Nuclear Forces (INF) Treaty, and many others.

There are also approximately 368 treaties signed between the Indigenous nations and the U.S. government; every single one of them has been violated or ignored.

There are also unilateral fictions that the United States has created, such as “Freedom of Navigation Operations” (FONOPs): this is gunboat diplomacy, a military show of force, masquerading as an easement claim. FONOPs are a concept with no basis in international law—“innocent passage” is the accepted law under UNCLOS—and it is the United States and its allies who are violating international laws when they exercise these FONOPs. Air Defense Identification Zones (ADIZs) are likewise notions that have no recognition in international law—the accepted concept is “sovereign airspace”—but the United States routinely claims that China is violating Taiwan’s ADIZ or airspace—which covers three provinces of mainland China. These are some examples of the absurd fictions that the United States invents to assert that enemy states like China are violating the RBIO. This is weaponized fiction.

The United States also takes great pains to undermine international structures and institutions; for example, not liking the decisions of the World Trade Organization (WTO), it has disabled the WTO’s Investor-State Dispute Settlement (ISDS) mechanism; it has undermined—and threatened—the ICC (by passing the American Servicemembers Protection Act [ASPA], also known as the Hague Invasion Act), and more recently, sanctioned the ICC prosecutor and her family members; it thumbs its nose at the International Court of Justice (ICJ) and its decisions, and generally is opposed to any international institution that restricts its unbridled, unilateral exercise of power. Former U.S. Ambassador to the UN John Bolton, in blunt candor, asserted that there is “no such thing as the United Nations,” but this unhinged ideology is quietly manifested in the day-to-day actions of the United States throughout successive U.S. administrations.

Whose Rules? The United States Applies Its Laws Internationally

On the flip side of this disdain for agreed-upon international law and institutions is the United States’ belief that its own laws should have universal jurisdiction.

The United States considers laws passed by its corrupt, plutocratic legislature—hardly international or democratic by any stretch of the imagination—to apply to the rest of the world. These include unilateral sanctions against numerous countries (approximately one-third of the world’s population is impacted by U.S. sanctions), using the instruments of the Office of Foreign Assets Control (OFAC), the U.S. legislature and courts, as well as currency and exchange systems (SWIFT). These unilateral sanctions are a violation of international law and humanitarian law, as well as perversions of common sense and decency—millions have perished under these illegal sanctions. To add insult to injury, the United States routinely bullies other countries to comply with these unilateral sanctions, threatening secondary sanctions against countries and corporations that do not follow these U.S.-imposed illegal sanctions. This is part of the general pattern of the exercise of U.S. long-arm jurisdiction; examples abound: the depraved arrest, imprisonment, and torture of journalist and WikiLeaks publisher Julian Assange—an Australian national—for violating U.S. espionage laws; the absurd kidnapping of Huawei executive Meng Wanzhou (a Chinese national) on Canadian soil, for violating illegal U.S. sanctions on Iran (which Canada does not itself uphold); and many other examples, too many to enumerate.

This long-arm bullying is often exercised through a network of kangaroo courts within the United States, which arrogate to themselves unitary, plenipotentiary international powers to police the citizens of other countries. Not surprisingly, the United States also applies its own laws in a similarly corrupt way within its own borders, with its own gulag system fed through these kangaroo courts. The most dramatic examples of the corruption of these courts can be noted in the routine exoneration of police-inflicted murders of civilians, except under the most extreme protest and activism; and absurd judgments, such as the prosecution of Steven Donziger by a Chevron-linked corporate law firm; or the exoneration of Kyle Rittenhouse by a judge allowing the accused to run the juror lottery. Note, however, the system itself is set up for conviction: over 99 percent of federal cases that go to court result in conviction; most do not even go to trial: 90 percent of U.S. federal indictments are settled by defendants pleading “guilty” or “no contest” to charges filed against them. The idea that there is any impartial notion of justice is belied by the fact that fair and adequate legal representation is unaffordable for most defendants; that appointed public defenders are so overstretched that they often spend literally minutes on each case, simply counseling defendants to plead guilty—which most do—and individuals, in the rare cases where they do win, are often bankrupted and psychically destroyed by a system that has unlimited resources and finances to beat down its victims. This corrupt system of oppression, despite its obvious injustices and iniquities, is exacerbated within vast gray areas of the justice system where even counsel, appeal, scrutiny, or oversight does not apply, and where a single individual may be judge, jury, and executioner. These include, for example, certain parole and probation systems, review boards within prisons, debt collection systems, immigration proceedings, asset forfeiture systems, and many other quasi-judicial systems of oppression.

Generally, these violations and injustices are excused or erased by the international and national media, which are complicit in maintaining an illusion of impartial, high-standards justice in the United States. This is an illusion without substance: the U.S. legal system, like the U.S. health care system or the U.S. educational system, is essentially a failed system that is designed to work only for the rich and powerful. It delivers substandard, so-called care, if not outright abuse, harm, violence, and death, to the vast majority of people who have the misfortune to enter its sausage-making chambers.

Routine Exemptions, Deadly Disorder

Nevertheless, from time to time, dramatic incidents of the United States flaunting the international “rules-based order”—i.e., international law by the United States—occasionally make headlines (before being rapidly silenced).

One type of recurring violation is the abuse of diplomatic immunity. This type of case is mundane and repetitious: a U.S. (or Western-allied) government employee kills or harms native citizens; the United States immediately claims diplomatic immunity. Sometimes the perpetrator is drunk, out of control, or paranoid; often they are spies or contractors. For example, according to recent reports, Anne Sacoolas seems to have been a drunk U.S. spy who killed a British teenager in 2019. She was spirited away immediately as a diplomat.

Raymond Allen Davis was a U.S. contractor, possibly acting CIA station chief, who shot dead two people in the street in Pakistan. Another person was killed by a vehicle picking up Davis to take him away from the crime scene. Davis was spirited out of the country, no explanations were given, and the murders were erased from media consciousness.

This mindset of exceptionalism and impunity is not anecdotal, but manifests on a general, structural scale in the numerous one-sided U.S. status of forces agreements (SOFAs) in the countries where the United States has troops stationed. These give a blanket immunity similar to diplomatic immunity: the violating U.S. soldier or contractor cannot be arrested and rendered to domestic courts unless the United States chooses to waive immunity; U.S. extraterritorial exemption/immunity can be applied despite cases of murder, mayhem, violence, torture, rape, theft, sexual trafficking, and a host of other sins.

This type of exceptionalism also applies to national health policies and international health regulations. For example, multiple COVID-19 outbreaks have been traced to U.S. violations of domestic public health measures—screening, testing, contract tracing, and isolation—in many territories or countries (especially island regions) where the United States has military bases. For example, several major COVID outbreaks in Okinawa have been traced to U.S. troops entering the island without following local health protocols.

The United States takes the cake for hypocrisy, however, when, in several COVID lawsuits, it accused China—without evidence—of violating UN/World Health Organization (WHO) International Health Regulations by failing to notify the United States and the rest of the world in a timely manner about the outbreak of COVID-19. This is entirely refuted by the facts and the well-established timelines: no other country has worked as assiduously and as rapidly in investigating, ascertaining, and then notifying the world of the initial outbreak, as well as sharing necessary information to control it. The United States, however, has carved out a pandemic-sized exemption from reporting any infectious diseases to the WHO if it deems it necessary for its national security interests. Ironically, this exemption is carved out for the single institution most likely to propagate it—the U.S. military: “any notification that would undermine the ability of the U.S. Armed Forces to operate effectively in pursuit of U.S. national security interests would not be considered practical.”

When the United States disingenuously uses the term RBIO, or rules-based international order, it may be playing at international law, but once its applications are unpacked and defused, it becomes clear that it is a weaponized fiction that the United States uses to attack its enemies and competitors.

If “hypocrisy is a tribute that vice pays to virtue,” the RBIO is the vicious first tribute that the United States sends to its law-abiding opponents to undermine international order, no less dangerous for its falsehood.

Globetrotter via counterpunch.org

By Miko PELED

Israel’s army chief of staff, General Aviv Kochavi, recently commented on the International Criminal Court (ICC) decision to investigate Israel for war crimes. In his speech, General Kochavi said:

There is a moral abyss that exists between us and our enemies. They do everything in order to target civilians; we do everything to prevent hurting their civilians. They rejoice when our civilians are killed; we investigate when theirs are killed.”

Sounds like a pretty good opening statement for his defense once the trial at The Hague commences. The only problem is, none of what he said is true.

As these words are being written, Israel is in the process of figuring out the results of its fourth elections in two years. These elections mark what could be the final step in a political strategy that would make Machiavelli proud. This strategy is one that was planned and executed brilliantly by Israeli Prime Minister Benjamin Netanyahu and that brought about the total disintegration of his opposition.

All that is left of those who ran against him are tiny fragments. The hungry politicians who lead these fragments cannot possibly compete with Netanyahu’s domestic political acumen.

Similarly, no Israeli politician is able to compete with Netanyahu’s gravitas in the international arena. This is something that was clearly demonstrated by the recent visit to Tel-Aviv by the Danish prime minister, Mette Frederiksen, and the Austrian chancellor, Sebastian Kurz, to discuss cooperation among the three countries.

“A moral abyss”

The speech given by the Israeli army chief represents a righteous indignation that is typical of Israeli officials. He says that “a moral abyss” exists between Israel and its enemies, and that is a very interesting choice of words. One might think it is self-defeating for the Israeli military and political officials to bring up morality. And yet, here is yet another general who made a career of killing civilians and maintaining a brutal military regime claiming moral superiority.

In truth, a moral abyss does exist between Israel and the Palestinian people. A quick comparison shows the following: From its very founding, Israel had invested billions of dollars in developing and maintaining its military; Palestinians have never had as much as a tank, much less a military force.

When this proved to be impossible, the Palestinians initiated a peaceful, dedicated, and morally just campaign of boycott, divestment, and sanction against the State of Israel. The demands set out by this call are all remedial and are all rooted in international law.

During these same decades, Israel had been engaged in dispossession, land theft, and violence. Palestinians are targeted by Israel regardless of their status or geographic location. Be they citizens of Israel, residents of the West Bank or Gaza, internally displaced, or refugees in camps outside of Palestine, Palestinians are living without rights — pushed off of their lands, prevented from access to basic resources like water, roads, and health care — and are killed on a daily basis.

Israel will not even provide Palestinians with a Covid vaccine. So yes, General Kochavi is right about the moral chasm. However, he and his army have nothing to be proud of.

“Our enemies”

One constantly hears that Israel is surrounded by enemies and that therefore it has no choice but to maintain a strong military force and strike whenever and wherever it sees a threat.

This is not unlike criminals who steal and are then afraid of retribution from their victims or the authorities. The criminals are constantly in need of more weapons, more recruits, and they must always hit first in order to strike fear into their potential enemies.

One could argue, and indeed should argue, that Israel created enemies by its own criminal behavior. Then Israel feels it has the right to protect itself from the very people it alienated through criminal acts.

They rejoice

Driving south from Jerusalem towards Gaza, one reaches an intersection just north of the first entry point into Gaza, called Erez. Then you drive down a road that goes along the Gaza Strip just east. At one intersection there is a gas station and a dirt road that winds from behind the gas station and up a sandy hill.

At the top of the hill, there are a few trees — one can see the Mediterranean from there, and also Gaza City. When Israel drops bombs on Gaza one can see the smoke and hear the explosions from that spot. Someone dragged up a couch and a few chairs, turning this spot into a favorite for Israelis who enjoy the spectacle.

A Danish news report shows Israelis watching the 2009 bombing of Gaza. TV2 Denmark | YouTube

In fact, a piece in the British paper The Guardian describes the place and the scene during the 2014 assault on Gaza: “People drink, snack and pose for selfies against a background of explosions as Palestinian death toll mounts in ongoing offensive.”

It goes on, describing what I too personally witnessed:

A group of men huddle around a shisha pipe. Nearly all hold up smartphones to record the explosions or to pose grinning, perhaps with thumbs up, for selfies against a backdrop of black smoke…Some bring their children.”

“We investigate”

Kochavi claimed the army investigates, though clearly Israel’s investigations of its own crimes are few, far between, and rarely end up with the violators being held accountable.

“We do everything to prevent killing their civilians,” he says, which should make us wonder in what world General Kochavi lives. Israel not only does not do anything to prevent the death of civilians but for decades has been targeting civilians in both Palestine and Lebanon. This is obvious because, as stated earlier, Palestinians have never had an army.

As the world wonders what the next Netanyahu government will look like, it is clear that Palestinians will continue to live in fear of Israeli terrorism. One has to wonder at what point the world is likely to end the destruction of Palestine and its people by Israel.

mintpressnews.com

Recently, on December 9, we saw the brazen use of this strategy when the Prosecutor of the International Criminal Court, Fatou Bensouda, a Gambian lawyer, was successfully coerced into dropping her intention to call British troops to account for war crimes they are alleged to have committed in Iraq. The ICC preliminary investigation had been completed and the office of the prosecutor had reached the conclusion that there was sufficient evidence to proceed with the case. Ms. Bensouda was by then under brutal pressure by leading Western powers, who in regard to liability for war crimes in both Iraq and Afghanistan have a common interest, and who also happen to be vocal advocates of the “rule of law,” to drop the inquiry. The US punitively cancelled her entry visa and withdrew from financing her court. Her office and she personally found themselves increasingly vilified in the media for daring to break with established ICC tradition, which is to confine indictments to African actors while those from the West are exempted, although the court has undisputed legal authority to prosecute the latter as well.

It is hard to tell whether frustrated shopping trips in New York due to the visa cancellation may have influenced Ms. Bensouda’s decision, but she capitulated. In her surrender statement she nevertheless defiantly confirmed that despite closing the case, the preliminary report had found “…that there is a reasonable basis to believe that members of the British armed forces committed the war crimes of wilful killing, torture, inhuman/cruel treatment, outrages upon personal dignity, and rape and/or other forms of sexual violence.” However, she went on to ingeniously rationalize her decision, since the UK legal system was capable and willing to pursue the miscreants there was no need for ICC to interpose itself. If the UK legal picture is so idyllic, why did she even bother to investigate, one might ask?

Doubts emerged immediately about the disposition of the British legal system to pursue the sort of war crimes cases that ICC had just dropped. Mathew Cannock, Head of Amnesty International’s Centre for International Justice argued that “the Prosecutor’s decision to conclude the examination provides a road-map for obstructionism. It rewards bad faith and delays brought about by the failure of the UK military and authorities to conduct independent and impartial investigations into allegations in the immediate aftermath of the conflict in Iraq.” Cannock’s scepticism seems amply justified in light of British Parliament’s plans to pass into law the ‘Overseas Operations Bill’, the chief purpose of which seems to be to erect even more barriers to the domestic prosecution of British military personnel for war crimes committed overseas.

The position into which the ICC Office of the Prosecutor was pressured mirrors a similarly preposterous decision made twenty years ago by ICTY Chief Prosecutor Carla del Ponte not to open an inquiry into NATO’s illegal bombing of Yugoslavia because – as she airily alleged at the time – NATO was perfectly capable of investigating itself and disciplining wrongdoers.

The nefarious effect of this legalistic shenanigan is to undercut the very notion of the rule of law by blocking an issue from ever being presented in court for adjudication.

The ICC precedent, in the best Anglo-Saxon legal tradition, was soon picked up and applied elsewhere. Based on a similarly inspired legal technicality, the US Supreme Court declined to hear the case brought by Texas and eighteen other states claiming that massive voting irregularities (and here) vitiated the November 3 presidential election. Along with that, another particularly brazen piece of legal chicanery was also put in operation. Responding to the request to expedite action on the Pennsylvania voting irregularities appeal, the Supreme Court conveniently set the “expedited” hearing date for January 22, 2021, two days after the inauguration. By then, in the absence of a timely judicial response to widespread fraud allegations in key state Pennsylvania, the matter will have become practically moot, or fait accompli if one prefers.

The new strategy to undercut the rule of law evidently is to prevent the legal adjudication of the disputed issue. The Supreme Court’s rationale for denying the Texas lawsuit is preposterous, bordering on comical. Texas (and eighteen other states) cannot lack standing to challenge what they believe and were ready to prove was a fraudulent presidential election because unless the subject matter of their complaint is judicially reviewed and legally remedied they would have to deal over the next four years with an unlawfully invested federal chief executive. A man of integrity, attorney Lin Wood, has asserted that flight logs show Chief Justice John Roberts’ presence on blackmailer Jeffrey Epstein’s pleasure island on at least two occasions, in 2010 and 2011. Curiously, Roberts’ voting patterns before and after these alleged visits seem to corroborate the suspicion of a post island “liberal” ideological epiphany. It may very well be a case of corruption intertwined with legal obstructionism. Since the investigation of these significant personal allegations is not being pursued, we probably will never be the wiser as to the facts, just as allegations of election fraud will never be aired and adjudicated in open court if the potentially compromised Chief Justice Roberts’ 7 to 2 majority have their way.

As the astute political analyst Thierry Meyssan has starkly put it “either the outgoing president’s appeals are judged in law and he is obviously right, or they are judged in politics and proving him right will provoke civil war. But the conflict is already too far advanced. Judging him politically in defiance of the law will also provoke civil war.”

All of which goes to show the short-sightedness of law-subverting strategies, even when initially they appear to be successful. The bullying of Ms. Mansouda in the long run will not benefit in the slightest the two moribund empires determined to use the prerogatives of exceptionalism to hide the shame of their crimes. The outrage generated by these brazen acts of injustice will mobilize the aggrieved throughout the world and strengthen their resolve to ultimately bring the rogue states and their uniformed minions to heel. The visible, in-your-face obliteration of the electoral process, one of the most important pillars upon which consent for the American system of government has rested, will have similarly incalculable consequences.

So, it all comes down to definitions. The United States covers its version of reality through liberal use of the Authorization for Use of Military Force (AUMF) which more-or-less gives a blanket approval to attack and kill “terrorists” anywhere at any time. And how does one become a terrorist? By being included on the U.S. government’s heavily politicized annual list of terrorist groups and material supporters of terrorism. That was the argument that was used by the United States when it killed Iranian General Qassem Soleimani in January, that his organization, the Qods Force, was on the “terrorist” lists maintained by State and the Treasury Department and he was therefore held to be guilty of any and all attacks on U.S. military carried out by Qods or by presumed Iranian surrogate militias.

The case made to justify killing Soleimani was considered deeply flawed at the time it took place. Because the United States says something is legal due to a law Congress has passed does not make it so, just as most of the world would consider the U.S. profile killings by drone in Afghanistan and elsewhere, based on nothing more than the assumption that someone on the ground might be a “terrorist,” to be little more than war crimes.

It has recently been revealed that the Trump Administration has issued a so-called “finding” to authorize the CIA to conduct more aggressive cyberattacks against infrastructure and other targets in countries that are considered to be unfriendly. The finding specifically named Iran, North Korea, China and Russia as approved targets and it is of particular interest because it basically left it up to the Agency to decide whom to attack and to what degree. As Washington is not at war with any of the countries named and is essentially seeking to damage their economies directly, the activity undertaken by CIA has constituted acts of war and, by widely accepted legal definition, attacks on countries that are not actually threatening are war crimes.

To counter the negative publicity about Trump Administration actions and to establish a possible casus belli, Washington has been floating numerous stories alleging Iranian, Russian and Chinese “aggression.” The ridiculous story about Russia paying Afghans bounties to kill American soldiers was quickly debunked, so the White House and the captive media are now alleging that Moscow hacker/spies are seeking to steal proprietary information dealing with the development of a coronavirus vaccine. The agitprop coming out of Washington to blame Russia for nearly everything notwithstanding, opinion polls suggest that most of the world considers Washington to be the primary source of global instability, rejecting the assertion by Secretary of State Mike Pompeo that the U.S. is a “force for good.”

So, it is reasonable to suggest that the United States has been guilty of many war crimes in the past twenty years and has only been shielded from the consequences due to its ability to control the message combined with its power in international fora and its unwillingness to cooperate with the International Criminal Court (ICC) in the Hague.

But the willingness of the international community to look the other way in support of the war crimes double standard appears to be changing. The ICC, which has had its investigators denied entry to the United States, has been investigating Israeli war crimes even as it also looks at developments in Afghanistan and Iraq involving U.S. forces. Trump’s ban on entry by ICC personnel includes their families even if they are American citizens and it also protects Israel in that ICC investigators looking into the possible war crimes committed by Israeli Defense Force (IDF) soldiers and officers as well as the relevant Jewish state’s government officials will also be sanctioned and denied entry into the U.S. In practical terms, the Trump Administration is declaring that IDF and U.S. soldiers will be regarded as one and the same as they relate to dealings with the ICC, a conceit that is little known to the American public.

The Israelis have responded to the threat from the ICC by compiling a secret list of government officials and military officers who might be subject to ICC issued arrest warrants if they travel in Europe for war crimes committed in Lebanon and Syria as well as of crimes against humanity directed against Palestinians. The list reportedly includes between 200 and 300 names.

That Israel is making a list of people who might be vulnerable to accusations of having possibly committed war crimes is a de facto admission by the government that such crimes were in fact committed. The ICC will soon decide whether to move on the December request by ICC Prosecutor Fatou Bensouda to investigate both Israel and Hamas over suspicions of war crimes in Gaza and Jerusalem as well as on the occupied West Bank beginning in 2014. The investigation would include “crimes allegedly committed in relation to the use by members of the IDF of non-lethal and lethal means against persons participating in demonstrations beginning in March 2018 near the border fence between the Gaza Strip and Israel, which reportedly resulted in the killing of over 200 individuals, including over 40 children, and the wounding of thousands of others.”

Given the time frame, Israeli government officials and military officers would likely be the first to face scrutiny by investigators. According to Haaretz, the list would almost certainly include “Prime Minister Benjamin Netanyahu; former defense ministers Moshe Ya’alon, Avigdor Lieberman and Naftali Bennett; former Israel Defense Forces chiefs of staff Benny Gantz and Gadi Eisenkot, and current Chief of Staff Aviv Kochavi; and the former and current heads of the Shin Bet security service, Yoram Cohen and Nadav Argaman, respectively.”

One wonders who would be included on a comparable list for the United States. There are a lot of lying politicians and sly generals to choose from. As both Israel and the United States do not recognize the authority of the ICC and will almost certainly refuse to participate in any fashion if the charges of war crimes and crimes against humanity ever actually make it to the court, any discussion of lists are at this point merely travel advisories for war criminals. The United States will push back and will inter alia certainly attempt to discredit the court using whatever weapons are available, to include sanctions against the nations that support any investigation and trial.

One nevertheless has to hope that the court will persevere in its effort to expose the crimes that continue to be committed by the U.S. and Israel in both Palestine and Afghanistan. Embarrassing Washington and Jerusalem in a very visible and highly respected international forum might be the only way to change the direction of the two nations that more than any other insist that “might makes right.”

A war crimes complaint has been filed against Donald Trump, Israeli Prime Minister Benjamin Netanyahu and Trump adviser Jared Kushner in the International Criminal Court (ICC). It is now up to the ICC’s Office of the Prosecutor to decide whether the complaint should be pursued. If the prosecutor launches a preliminary examination and finds reason to believe they committed war crimes, the court could then authorize a full investigation.

The complaint, filed by Middlesex University law professor William Schabas on June 30 on behalf of four Palestinians who live in the West Bank, states “there is credible evidence” that Trump, Netanyahu and Kushner “are complicit in acts that may amount to war crimes relating to the transfer of populations into occupied territory and the annexation of the sovereign territory of the State of Palestine.” Under article 15 of the ICC’s Rome Statute, any individual, group or organization can bring a complaint to the Office of the Prosecutor.

Schabas’s complaint comes on the heels of unusual moves last month from the Trump administration, which declared a “national emergency” in June in an effort to shield U.S. and Israeli officials from ICC accountability for war crimes and crimes against humanity.

The order authorizes the freezing of assets and family travel bans against ICC officials and others who have participated in, or provided assistance to investigations, arrests, detentions or prosecutions. It’s not necessary that a person be involved with an ICC action, however, to be subject to Trump’s new sanctions. His order covers any ICC employee or agent whom the secretary of state determines “would be detrimental to the interests of the United States.”

Trump’s Endorsement of Israel’s Illegal Annexation Is a War Crime

Schabas’s complaint alleges that the Trump administration’s endorsement of Israel’s annexation constitutes a war crime.

Trump’s “Peace to Prosperity” plan endorses the illegal Israeli annexation of 30 percent of the West Bank which, Schabas alleges, “is intricately linked to the war crime of changing the population of an occupied territory.” The annexation, slated to occur on July 1, has been delayed, likely for political reasons.

Article 49  of the Fourth Geneva Convention states that an “occupying power shall not deport or transfer parts of its own population into the territories it occupies.” The Rome Statute says that an occupying power’s direct or indirect transfer “of parts of its own civilian population into the territory it occupies” is a war crime.

Sixty-seven special independent experts appointed by the UN Human Rights Council declared in a statement that Israel’s annexation of occupied territory “is a serious violation of the Charter of the United Nations and the Geneva Conventions, and contrary to the fundamental rule affirmed many times by the United Nations Security Council and General Assembly that the acquisition of territory by war or force is inadmissible.”

Trump Claims the ICC Has No Jurisdiction Over Americans and Israelis

In his June 11 order, Trump states that the ICC’s “illegitimate assertion of jurisdiction” over nationals of the U.S. and its allies would “threaten to infringe upon the sovereignty of the United States.” Trump notes that the U.S. is not a party to the ICC’s Rome Statute and has never consented to the jurisdiction of the court.

Although Bill Clinton signed the Rome Statute as he left office,  the United States never ratified it. In an unprecedented move, George W. Bush withdrew the U.S.’s signature from the statute in 2002. 

Even though the United States isn’t a party to the Rome Statute, U.S. nationals can still be held liable in the ICC for crimes that occurred in the territory of a country that is a party.  So although the United States has not ratified the Rome Statute, the ICC nevertheless has jurisdiction over crimes committed by U.S. nationals in the territory of Afghanistan, which is a party.

On March 5, the ICC Appeals Chamber accepted Bensouda’s recommendation to proceed with an investigation of war crimes allegedly committed by U.S. military and CIA officials in Afghanistan and at CIA black sites.

Less than three months prior, on December 20, 2019, Bensouda had found a reasonable basis to believe that Israeli forces and Palestinians committed war crimes in the occupied Palestinian territories. She recommended that the Pretrial Chamber launch an investigation if it decided the court had territorial jurisdiction over Gaza and the West Bank, including East Jerusalem.

The same day the Appeals Chamber announced its approval of an investigation of U.S. war crimes in Afghanistan, Secretary of State Mike Pompeo threatened to “take all necessary measures to protect our citizens from this renegade, so-called court.”

With his new national emergency declaration, Trump aims to ensure that no U.S. or Israeli persons are brought before the international court to answer for war crimes and crimes against humanity. He cited the American Service-Members Protection Act, enacted after Bush removed the U.S.’s signature from the Rome Statute. The act contains the “Hague Invasion Clause,” which authorizes the U.S. military to use armed force to extricate any U.S. or allied national detained by the ICC. This provision has never been used but its ramifications are frightening.

U.S. Pressure on the ICC Didn’t Work the First Time

In November 2017, Bensouda’s preliminary examination found reasonable grounds to believe that,  pursuant to U.S. policy,  members of the U.S. military and the  CIA had committed  war crimes. They included torture and cruel treatment, and outrages upon personal dignity and sexual violence against people in detention facilities in the territory of states parties to the Rome Statute, including  Afghanistan,  Romania, Poland and Lithuania.

The alleged crimes by the CIA and U.S. military “were not the abuses of a few isolated individuals,” but rather “part of approved interrogation techniques in an attempt to extract ‘actionable intelligence’ from detainees,” Bensouda wrote. She concluded there was “reason to believe” that crimes were “committed in the furtherance of a policy or policies … which would support US objectives in the conflict of Afghanistan.”

Bensouda requested that the ICC’s Pretrial Chamber approve an investigation into these allegations. The Trump administration threatened to deny visas to ICC judges and prosecutors and warned it would retaliate with sanctions if the court opened an investigation.

On April 5, 2019, the U.S. government revoked Bensouda’s visa to travel to the United States.

A week later, on April 12, 2019, the Pretrial Chamber apparently succumbed to U.S. pressure and declined to authorize Bensouda’s investigation. Although agreeing with Bensouda that there were reasonable grounds to believe that CIA members had committed war crimes, the Pretrial Chamber denied her request for an investigation “in the interests of justice.” That chamber cited the “extremely limited” possibility of an effective judicial process due to the likely refusal of U.S. and Afghan authorities to cooperate.

But in a landmark decision, on March 5, 2020, the Appeals Chamber overruled the Pretrial Chamber’s determination and authorized Bensouda to initiate an investigation.

Trump declared his “national emergency” three months later.

Bensouda Requested an Investigation of War Crimes Committed in Palestine

Trump’s June 11 executive order was also designed to shield Israeli officials from liability in the ICC for their war crimes.

On December 20, 2019, Bensouda told the Pretrial Chamber there was a reasonable basis to launch an investigation of “the situation in Palestine.” She had a reasonable belief that Israeli forces had committed war crimes of willful killing, willfully causing serious injury to body or health, disproportionate use of force, transfer of Israeli civilians into the Palestinian territory of the West Bank, and the killing of more than 200 Palestinians during protests at the Israel-Gaza fence. Bensouda also found a reasonable basis to investigate alleged war crimes by Palestinians, including intentional attacks against civilians, using civilians as human shields, and the commission of torture and willful killing.

Bensouda wrote that she was satisfied “(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.”

But although Bensouda determined that the ICC has territorial jurisdiction over the West Bank, including East Jerusalem, and Gaza — she asked the Pretrial Chamber for a ruling on “the scope of the territorial jurisdiction” of the ICC.

Israel is not a party to the Rome Statute. But the ICC could take jurisdiction over Israelis if their crimes were committed in the territory of a state party. Israel maintains that Palestine is not a state so there is no ICC jurisdiction.

In 2012, the UN General Assembly recognized Palestine as a non-member observer state in the United Nations. Palestine acceded to the Rome Statute, thereby becoming a member of the States Parties of the International Criminal Court.

The International Association of Democratic Lawyers (IADL) filed an amicus brief on March 16, 2020, urging the ICC to confirm its jurisdiction over Palestine. IADL bureau member Richard Harvey wrote:

The ICC’s normative power and legal authority will be strengthened by confirming its jurisdiction over the State of Palestine, including the West Bank, East Jerusalem and Gaza, and opening an investigation into the Palestinian situation. Thereby the equal rights of all peoples to justice for international crimes will receive much-needed affirmation.

ICC States Parties and UN Security Council Members Express “Unwavering Support” for ICC

Sixty-seven ICC member countries representing regions throughout the world issued a joint statement expressing their “unwavering support for the Court as an independent and impartial judicial institution.” They pledged to remain “undeterred by any measures or threats against the Court, its officials, and those cooperating with it.”

Likewise, 10 members of the 15-member UN Security Council issued a statement to “reconfirm our unwavering support for the Court as an independent and impartial judicial institution” and “preserve its integrity undeterred by any threats against the Court, its officials and those cooperating with it.” The group, which included two permanent members of the Council – France and the United Kingdom – renewed their “resolve to stand against impunity which is at the core of the Rome Statute.”

The remarkable action of the Appeals Chamber in defying U.S. threats and blackmail and approving a war crimes investigation of U.S. officials indicates that the ICC is striving to fulfill its mandate to bring those who have committed the most serious crimes to justice.

truthout.org

The American Establishment is totally committed to the principle that the United States and Israel should have a “free hand” in dealing with other countries in their respective spheres of influence. That effectively means controlling the narrative so that the U.S. and the Jewish state always appear to be victims of other nations’ unprincipled behavior and also creating an environment where there can be no effective legal challenges to aggressive action.

Indeed, the one organization that was specifically set up to deal with issues like aggressive wars and ethnic cleansing, the International Criminal Court (ICC) at the Hague, has been specifically targeted by both Washington and Jerusalem to deny it any jurisdiction in situations where either country is involved. Neither Israel nor the United States has recognized the ICC for the obvious reason that they are primary sources of egregious human rights and international law violations. Israel is particularly concerned over its numerous war crimes, to include its violation of the Fourth Geneva Convention which forbids “the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory.”

The ICC has, in fact, been targeted recently by both the Trump Administration and Congress. Two weeks ago, a bipartisan group of 69 United States senators submitted to Secretary of State Mike Pompeo a letter condemning the “dangerous politicization of the court” that “unfairly targets Israel.” The Senators urged Pompeo to continue his “vigorous support of Israel as it faces the growing possibility of investigations and prosecutions by the International Criminal Court.” The letter included the claim that “actions currently underway could lead to the prosecution of Israeli nationals…” even though “the ICC does not enjoy legitimate jurisdiction in this case.”

The assertion that the ICC does not have jurisdiction is questionable at best as the “Palestinian State” has observer status and is a member of international bodies at the United Nations. It is also a signatory to the Rome Statute that established the ICC. The Senate letter itself was predictably written by Ester Kurz, the legislative director of the American Israel Public Affairs Committee (AIPAC), which is the leading Israel advocacy group in the United States. A similar letter was also circulated in the House of Representatives, which added an “American issue” by criticizing the ICC’s intention to investigate United States war crimes in Afghanistan. It received 262 signatures.

Anticipating the threat to Israeli interests, the U.S. Congress has long made security and other assistance to the Palestinian Authority conditional, suspending all support if “the Palestinians initiate an International Criminal Court (ICC) judicially authorized investigation, or actively support such an investigation, that subjects Israeli nationals to an investigation for alleged crimes against Palestinians.” As Donald Trump has de facto cut off virtually all assistance, including the humanitarian aid given to refugees, the punishment for going to the ICC is essentially moot and the Palestinians have consequently moved ahead with their complaint in an attempt to upset the timetable for Israeli annexation.

The Senators’ letter surfaced at the same time as a warning was issued by Pompeo to the ICC that focused on Israel but was clearly intended to derail any attempts to look at American war crimes in Afghanistan. He claimed that the ICC is a political body, not a legitimate judicial institution, and accused chief prosecutor Fatou Bensouda of maliciously investigating “Israeli war crimes in Gaza, the West Bank and East Jerusalem.” His complaint paralleled the Senatorial letter, which is perhaps no coincidence, in claiming that the court has no jurisdiction and the Palestinians are not “sovereign” and therefore have no standing to go to the court in the first place.

And Pompeo concluded with a threat: “A court that attempts to exercise its power outside its jurisdiction is a political tool that makes a mockery of the law and due process. If the ICC continues down its current course, we will exact consequences.”

Israel has also claimed, as does the United States, that it is not subject to ICC “trial” because it has a functioning court system that is capable of punishing war criminals. Of course, the fact is that Israel does not do so and the U.S. only does so when embarrassed. The most recent American war criminal was convicted by military courts and then pardoned by President Donald Trump. He was even feted at the White House.

Bensouda announced in November 2017 that she would proceed with an investigation of alleged U.S. war crimes in Afghanistan. The Trump Administration expressed its anger by criticizing her in tweets, canceling her visa to the United States, and threatening legal action against her, her staff and even ICC judges. The White House warned that if the ICC even dares to detain an American citizen the United States would use military force to release him or her. President Trump, Pompeo, and John Bolton all called the ICC “political, corrupt, irresponsible, unaccountable, and lacking transparency, and therefore illegitimate.” The critique sounded oddly enough like an accurate description of the Trump Administration itself.

Bensouda, who has been timid about confronting Israel in the past, is now reportedly proceeding with the Palestinian complaint. She has also been authorized to proceed with her investigation of American crimes in Afghanistan. If there is to be an actual trial, high-level politicians, officials, and military officers from both Israel and the U.S. could be summoned for questioning. If the summonses are ignored, which is probable, the prosecutor could then issue international arrest warrants, meaning that they could be arrested and extradited to the Court if they were to travel to any of the 123 countries that are parties to the Rome Statute.

So, one can expect both the United States and Israel to continue their defamation of the ICC, to include the threats of armed response coming from Washington. An attack on The Hague might be unimaginable in the real world, but the past three years have demonstrated that Donald Trump is capable of almost anything. Until then, one hopes that Bensouda will continue her work to expose the crimes that continue to be committed in both Palestine and Afghanistan. Embarrassing the United States and Israel in a very visible and highly respected public forum might be the only way to wake up the citizens of those two countries to the terrible things that have been and continue to be done in their names.

Anyone watching the current events surrounding Julian Assange will know that justice in Britain is not the driving motivation behind his incarceration. His treatment by the state is truly shameful, immoral and reprehensible. What you are witnessing in real-time is the abuse and oppression of a journalist all funded by the taxpayer to further the aims of a government that is trampling all over our understanding of basic justice.

There is an awakening from within when you read the account below by Julian Assange’s partner. It makes you understand that for all of the doubts you may have about the British government, that they may not be as awful as you suspect, they are, in fact, just that. It’s an uncomfortable feeling to know that your government does not care one bit about your wellbeing, your civil liberties or your rights. You are afforded those things only by good behaviour in their eyes – not what is lawful, not by due process, not by integrity and certainly has nothing at all to do with justice or the rule of law.

We are reliably informed that this story was offered to every mainstream media organisation in Britain. The assumption is that it has not been published to keep a lid on the truth seeping out into the public realm. If this was a featured piece on BBC, ITV and Sky News broadcasts and on the front pages of newspapers there would be public outrage – but instead, we are to be outraged by a government scientific expert who broke social-distancing rules by having an affair with a married woman. How have things got this bad in Britain?

The life of my partner, Julian Assange, is at severe risk. He is on remand at HMP Belmarsh, and Covid-19 is spreading within its walls.

Julian and I have two little boys. Since becoming a mother, I have been reflecting on my own childhood.

My parents are European, but when I was little we lived in Botswana, five miles from the border with Apartheid South Africa. Many of my parents’ friends came from across the border: writers, painters, conscientious objectors. It was an unlikely centre for artistic creativity and intellectual exchange.

The history books describe Apartheid as institutional segregation, but it was much more than that. Segregation occurred in broad daylight. The abductions, torture and killings occurred at night.

The foundations of the Apartheid system were precarious, so the regime met ideas of political reform with live ammunition. In June 1985, South African assassination squads crossed the border armed with machine guns, mortars and grenades. As soon as gunfire burst into the night, my parents wrapped me in a blanket. I slept as my parents raced the car to safety. The sound of explosions carried through the capital for the hour and a half that it took to kill twelve people.

The first person to be killed was a very close family friend, an exceptional painter. South Africa claimed the raid had targeted the armed wing of the ANC, but in reality most of the victims were innocent civilians and children killed as they lay sleeping in bed. We left Botswana within days.

I have absorbed my parents’ vivid memories of the raid. If that terrible night shaped my perspective of the world, the incarceration of the father of my children will surely mark theirs.

Forming a family with Julian under the circumstances was always going to be difficult, but our hopes eclipsed our fears. Initially, Julian and I managed to carve out a space for a private life. Our firstborn visited with the help of a friend. But when Gabriel was six months old, an embassy security contractor confessed to me that he had been told to steal the baby’s DNA through a nappy. Failing that they would take the baby’s pacifier. The whistleblower warned me Gabriel should not come into the embassy anymore. It was not safe. I realised that all the precautions I had taken, from piling layers on to disguise my bump to changing my name, would not protect us. We were totally exposed. These forces operated in a legal and ethical vacuum that engulfed us.

I could write volumes about what happened in the months that followed. By the time I was pregnant with Max the pressure and harassment had become unbearable and I feared that my pregnancy was at risk. When I was six months pregnant Julian and I decided I should stop going into the embassy. The next time I saw him was in Belmarsh prison.

The image of Julian being carried out of the embassy shocked many. It struck a blow to my chest, but it did not shock me. What happened that morning was an extension of what had been going on inside the embassy over an eighteen-month period.

After Julian was arrested a year ago, Spain’s High Court opened an investigation into the security company that had been operating inside the embassy. Several whistleblowers came forward and have informed law enforcement of unlawful activities against Julian and his lawyers, both inside and outside the embassy. They are cooperating with law enforcement and have provided investigators with large amounts of data.

The investigation has revealed that the company had been moonlighting for a US company closely associated with the current US administration and US intelligence agencies and that the increasingly disturbing instructions, such as following my mother or the baby DNA directive, had come from their US client, not Ecuador. Around the same time that I had been approached about the targeting of our baby, the company was thrashing out even more sinister plans concerning Julian’s life. Their alleged plots to poison or abduct Julian have been raised in UK extradition proceedings. A police raid at the security company director’s home turned up two handguns with their serial numbers filed off.

None of this information is surprising to me but as a parent I ponder how to manage it.

I want our children to grow up with the clarity of conviction that I had as a little girl. Peril lay beyond the South African border. I want them to believe that inequitable treatment is not tolerated in mature democracies. At university in Oxford, I was proud to be at the intellectual heart of the most mature democracy of them all.

It is not just our family who suffers from the infringement of Julian’s rights. If our family and Julian’s lawyers are not off-limits, then nothing is. The person responsible for allegedly ordering the theft of Gabriel’s DNA is Mike Pompeo, who last month threatened the family members of lawyers working at the International Criminal Court. Why? Because the court had had the temerity to investigate alleged US war crimes in Afghanistan. The same crimes that Julian exposed through WikiLeaks, and which the US wants to imprison him over.

Julian needs to be released now. For him, for our family, and for the society we all want our children to grow up in.

truepublica.org.uk

A recent BBC Panorama investigation, in collaboration with the Sunday Times, ascertained a cover-up by the UK government of British soldiers torturing and murdering Iraqi and Afghan civilians, including children since 2003, when the UK participated alongside the US in invading Iraq under the pretext of the so-called “war on terror”.

In 2010, the Iraq Historic Allegations Team (IHAT) was tasked with investigating allegations of abuse in Iraq, with the possibility of prosecuting the perpetrators. However, mismanagement and corruption within the body, including claims that solicitor Phil Shiner had paid people to find clients for IHAT, failed to open a single case from its investigations. For the UK’s Ministry of Defence, the allegations against IHAT were an opportune moment to discredit the claims of human rights violations committed by British troops. Rather than prioritise the allegations of human rights violations, IHAT was deemed harmful and “making soldiers on the battlefield anxious about later legal repercussions.”

In a 2018 report issued by the ICC, UK soldiers are alleged to have committed war crimes against 61 Iraqis in custody, including killings, torture, rape and sexual violence. Seven deaths occurred in custody and 54 victims died of “mistreatment”. The ICC report specifies: “At this stance, these incidents should not be considered as either complete or exhaustive, but rather illustrative of the alleged criminal conduct.”

In July 2019, the European Centre for Constitutional and Human Rights (ECCHR) submitted a follow-up to the ICC Prosecutor, informing the office about the UK’s failure to investigate or prosecute those responsible for war crimes, “despite significant and growing evidence indicating that liability extends up the chain of command to senior military and civilian officials.” The ECCHR also described the closing down of IHAT as a politically motivated decision to avoid ICC prosecution.

The UK’s intention was clearly to preserve its impunity. During the course of the BBC investigation, it was revealed that “The Ministry of Defence (MoD) had no intention of prosecuting any soldier of whatever rank he was unless it was absolutely necessary, and they couldn’t wriggle their way out of it.” Among the concealed crimes, a soldier from an SAS unit shot 4 Afghan civilians, three of them children, in the head, while they were in their own home, drinking tea. “When I entered the room, the bones, teeth, blood and brain were all over the place,” a witness to the aftermath stated. The UK government dismissed the war crime allegation by stating the four Afghans were Taliban suspects and commanders.

Other war crimes were concealed through fabricated evidence in order to evade such classification. Evidence of sexual abuse was also revealed to have occurred at Camp Stephen in Basra, Iraq, which was under the command of the Black Watch.

If the ICC does investigate the UK government for these violations of the Geneva Convention, it would have set a precedent, given that the Court has, so far, focused on investigating the leaders of African nations as opposed to the crimes of Western governments and foreign intervention. The “war on terror” is characterised by two main factors – perpetual aggression and extended impunity for the perpetrators. Justice for the Iraqi and Afghan people, by now, is worse than a macabre farce. Yet the ICC must fulfil its duty to lay bare the dynamics that have so far shielded the UK military and governmental collaboration from judicial scrutiny.

U.S. President Donald Trump sacked his Navy secretary on Twitter. The main reason is that the Navy secretary did not follow Trump’s advice regarding Navy Special Warfare Operator Edward Gallagher. Trump wanted Gallagher to retain his position as a Navy Seal. Gallagher was accused of stabbing to death a wounded fighter of the Islamic State of Iraq and the Levant (ISIS) in 2017; he was also accused of other incidents of murder (of a schoolgirl and an elderly man), and then of obstruction of justice. In July 2019, a military court acquitted Gallagher of most of the charges but found him guilty of posing with the body of the fighter who had been stabbed to death.

Gallagher’s situation emerged onto the front pages only because of the intervention of Trump. Otherwise, these accusations of war crimes or “misconduct” emerge, they are sometimes investigated, and then they just dissipate. Report upon report has accumulated over the past 16 years of war crimes committed in Afghanistan and Iraq. The U.S.-NATO war on Afghanistan began in 2001, while the U.S. war on Iraq began in 2003. Hardly a day goes by in these countries where their combatants aren’t committing war crimes.

As early as December 21, 2001, the United Nations inquired about reports of “summary execution of prisoners after capture”; the immediate news was that about 2,000 Taliban prisoners at Qala-i-Jangi, near Mazar-i-Sharif, Afghanistan, had been “suffocated to death or shot in container trucks,” according to a report by the Physicians for Human Rights. In 2009, it became clear that the administration of George W. Bush had obstructed any investigation into this particular atrocity. Not one person has seen the inside of a court for this war crime.

What is a “war crime”? The Rome Statute of the International Criminal Court—which went into effect in 2002 but was drafted in 1998—defines war crimes as “serious violations of the laws and customs applicable in international armed conflict.” These include attacks against civilians, attacks against those who have surrendered, attacks with biological and chemical weapons, and attacks against medical and cultural institutions.

The Rome Statute builds on 100 years of legal precedent established in the Geneva Conventions and the Hague Conventions. There is no ambiguity in the Statute, which should be read by schoolchildren in countries that are prone to prosecute wars.

International Criminal Court

The United States is not a party to the International Criminal Court (ICC). It had helped establish the Court, but then reversed course and refused to allow itself to be under the ICC’s jurisdiction. In 2002, the U.S. Congress passed the American Service-Members’ Protection Act, which allows the U.S. government to “use all means” to protect its troops from the ICC prosecutors. Article 98 of the Rome Statute does not require states to turn over wanted personnel from a third party if these states had signed an immunity agreement with the third party; the U.S. government has therefore encouraged states to sign these “article 98 agreements” to give its troops immunity from prosecution.

The enormity of evidence of war crimes by U.S. troops and U.S.-affiliated troops in Afghanistan and Iraq weighed on the credibility of the ICC. In 2016, after a decade of investigation, the ICC released a report that offered hope to the Afghan people. The ICC said that there is “a reasonable basis” to pursue further investigation of war crimes by various forces inside Afghanistan—such as the Taliban, the Haqqani network, and the United States military forces alongside the Central Intelligence Agency. The next year, the ICC went forward with more detailed acknowledgment of the possibility of war crimes. Pressure on the ICC’s prosecutor mounted.

Pressure on the Court

This is where everything seemed to end. The Trump administration, via John Bolton and Mike Pompeo, made it clear to the ICC that if they pursued a case against the U.S., then the Trump administration would go after the ICC prosecutor and judges personally. An application for a U.S. visa by Fatou Bensouda, the ICC prosecutor, was denied; she had intended to come to the U.S. to appear before the United Nations. This was a shot across the bow of the Court. The U.S. was not going to play nice. Not long thereafter, in April 2019, the ICC said that it would not go ahead with a war crimes case against the United States, or indeed against any of the belligerents in Afghanistan. The Court said it would “not serve the interests of justice” to pursue this investigation.

Trump responded to this decision by calling the ICC “illegitimate” and—at the same time—that the ICC’s judgment was “a victory, not only for these patriots, but for the rule of law.”

Staff at the ICC were dismayed by the ICC’s decision. They were eager to challenge it, fearing that if they let the U.S. mafia tactics prevent their own procedures then the ICC would lose whatever shred of legitimacy remains. As it is, the ICC is seen as being deployed mainly against the enemies of the United States; there have been no serious investigations of any power that is closely aligned with the United States.

In June, Fatou Bensouda, the ICC prosecutor, filed a request inside the cumbersome system of the ICC to essentially appeal the decision not to pursue the investigation of the war crimes in Afghanistan. Bensouda’s appeal was joined by various groups from Afghanistan, including Afghan Victims’ Families Association and the Afghanistan Forensic Science Organization. In September, the Pre-Trial Chamber of the Court said it would allow the appeal to go forward. Bensouda’s office is now going to have to assemble an enormous case for her appeal; this could itself take the better part of six months. It is likely that the Trump administration has already begun to pressure the Court, which the Court’s staff worries will have an impact on the appeal as it did on the first filing.

Britain and the Court

The main U.S. ally in these wars in Afghanistan and Iraq has been the United Kingdom. A recent television program in the UK provided chilling evidence of British war crimes in Iraq. In 2017, the ICC said it had “credible” evidence that UK armed forces had committed horrific war crimes—including murder, torture, and rape—between 2003 and 2009. Reports piled up, but action was not taken. Now, given the new revelations on BBC’s “Panorama,” the ICC says that it will likely take up the case again.

There is no doubt that if the UK’s case is fairly adjudicated, it will raise many issues about the senior partner in these wars, namely the United States. Boris Johnson, the prime minister of the UK for now, says that he wants to pass legislation that—like in the U.S.—gives immunity for its troops. Jeremy Corbyn’s Labour Party has said, on the other hand, that it welcomes the scrutiny.

No soldier should be above the law. Nor should those who sent the soldiers into battle. None of these inquiries asks that more fundamental question.

Former United Nations Secretary-General Kofi Annan called the U.S. war on Iraq “illegal.” No one, not even Bensouda, has suggested that George W. Bush, his Cabinet, and Tony Blair be brought into the dock.

If justice is to be sought, it is not at the level of someone like Edward Gallagher alone; it should be his superiors on the political side who need to answer questions about not just this or that war crime, but about the entire war and the crime of it all.

Globetrotter via counterpunch.org