{"id":232618,"date":"2023-04-03T12:01:00","date_gmt":"2023-04-03T11:01:00","guid":{"rendered":"https:\/\/www.transcend.org\/tms\/?p=232618"},"modified":"2024-06-12T21:24:00","modified_gmt":"2024-06-12T20:24:00","slug":"the-iinternational-criminal-courts-selective-prosecution","status":"publish","type":"post","link":"https:\/\/www.transcend.org\/tms\/2023\/04\/the-iinternational-criminal-courts-selective-prosecution\/","title":{"rendered":"The Iinternational Criminal Court\u2019s Selective Prosecution"},"content":{"rendered":"

The ICC\u2019s double standard in the treatment of Ukraine and Palestine is largely due to political coercion by the U.S., which isn\u2019t even a party to the court\u2019s Rome Statute.<\/em><\/p><\/blockquote>\n

\"\"<\/a>

ICC Chief Prosecutor Karim Khan during a conversation in Brussels with E.U. foreign ministers that included the investigation of war crimes in Ukraine.
(Raoul Somers\/Dutch Ministry of Foreign Affairs,CC BY-SA 2.0, Wikimedia Commons)<\/p><\/div>\n

29 Mar 2023 – <\/em>On 17 Mar, a little more than one year after Russia\u2019s invasion of Ukraine, Karim Khan, chief prosecutor of the International Criminal Court (ICC), announced<\/a>\u00a0that the Pre-Trial Chamber (PTC) had issued an arrest warrant for Russian President Vladimir Putin for the commission of war crimes in Ukraine. The PTC also issued an arrest warrant for Maria Lvova-Belova, commissioner for children\u2019s rights in the Office of the President of the Russian Federation, for the same war crimes.<\/p>\n

While the U.S. celebrates the arrest warrant against Putin, it has pressured the ICC to refrain from prosecuting Israelis and Americans. There is a double standard in the ICC\u2019s treatment of the situations in Ukraine and Palestine. This is largely due to political coercion by the United States, which isn\u2019t even a party to the ICC\u2019s Rome Statute.<\/p>\n

The PTC confirmed that there are \u201creasonable grounds\u201d to believe that Putin and Lvova-Belova unlawfully deported and transferred \u201cat least hundreds of\u201d Ukrainian children from occupied areas of Ukraine to the Russian Federation, in violation of\u00a0article 8(2)(a)(vii) and article 8(2)(b)(viii) of the Rome Statute<\/a>.<\/p>\n

Khan had opened an investigation into the situation in Ukraine on Feb. 28, 2022, finding a \u201creasonable basis to believe that both alleged war crimes and crimes against humanity have been committed in Ukraine<\/a>.\u201d The arrest warrants were issued one year later \u2014 lightning speed for the ICC.<\/p>\n

Contrast that with the ICC\u2019s handling of the investigation of war crimes in Palestine.<\/p>\n

After Seven Years, No Charges<\/strong><\/p>\n

After a five-year preliminary examination, former ICC Chief Prosecutor Fatou Bensouda found there was a\u00a0reasonable basis<\/a>\u00a0to believe that\u00a0Israeli leaders committed war crimes and crimes against humanity in Palestine<\/a>, including willful killing, willfully causing serious injury, disproportionate use of force and transfer of Israelis into Palestinian territory. Bensouda also found a reasonable basis to investigate possible war crimes by Palestinian leadership, including intentional attacks against civilians, using civilians as human shields and torture and willful killing. The ICC opened a formal investigation two years ago.<\/p>\n

But no arrest warrants have been issued and there has been no visible progress toward accountability for Israeli leaders, including Prime Minister Benjamin Netanyahu. One of the war crimes the ICC is investigating is Israel\u2019s unlawful transfer of Israeli Jews into settlements located on Palestinian land.<\/p>\n

\"\"<\/p>\n

Israeli military forces arriving to demolish the Palestinian community of Khirbet Ein Karzaliyah on Jan. 8, 2014. (B\u2019Tselem, CC BY 4.0, Wikimedia Commons)<\/strong><\/p>\n<\/div>\n

In December 2022, three leading Palestinian human rights organizations issued a\u00a0joint statement<\/a>\u00a0to the Assembly of States Parties to the Rome Statute (the management arm of the ICC), stating, \u201cWe have not seen any concrete step in this investigation, no action by the Prosecutor to break the vicious cycle of impunity.\u201d<\/p>\n

The rights groups distinguished the ICC prosecutor\u2019s inaction on Palestine from the situation in Ukraine. \u201cIt is also crucial that the same level of attention, activity, and resources is applied to other situations including Palestine, to avoid perceptions of selectivity and politicization,\u201d the groups wrote. \u201cVictims should not be competing for justice and double standards should not have a place in justice.\u201d<\/p>\n

US<\/strong> Derailed ICC Investigation in Afghanistan<\/strong><\/p>\n

The United States derailed an attempt to prosecute U.S. officials for war crimes and crimes against humanity committed during the war in Afghanistan. The preliminary examination was opened in 2007, but the authorization for an official investigation took 13 years.<\/p>\n

In March 2020, the ICC finally authorized a formal investigation of U.S., Afghan and Taliban officials for war crimes committed in the \u201cwar on terror.\u201d The ICC prosecutor found reasonable grounds to believe that, pursuant to a U.S. policy, members of the C.I.A. had committed war crimes. They included torture, cruel treatment, outrages upon personal dignity, rape and other types of sexual violence against people held in detention facilities in Afghanistan, Romania, Poland and Lithuania.<\/p>\n

In September 2021, three months after assuming the post of chief prosecutor of the ICC, Khan narrowed the focus and dropped the investigation of U.S. leaders and their allies. He limited the probe to crimes committed by the Taliban and ISIS\u2019s affiliate in Afghanistan. When the Biden administration lifted the sanctions that Donald Trump had levied on ICC personnel, \u201cit did so with the tacit understanding that the court\u2019s probe on U.S. crimes wouldn\u2019t resume,\u201d\u00a0Alice Speri wrote<\/a>\u00a0at\u00a0The Intercept.<\/em><\/p>\n

\u201cThis was clearly a political decision \u2014 there\u2019s really no other way it can be interpreted,\u201d\u00a0Jennifer Gibson, a lawyer with the human rights group Reprieve, said<\/a>. \u201cIt gave the U.S., the U.K. and their allies a get out of jail free card.\u201d<\/p>\n

Russia & US Both Threaten ICC<\/strong><\/p>\n

Although the ICC doesn\u2019t have a police force, the 123 parties to the Rome Statute have an obligation to arrest Putin and Lvova-Belova if they travel to their countries. Although it\u2019s unlikely they will be arrested, the possibility of arrest will likely hinder their international travel.<\/p>\n

Former Russian President Dmitry Medvedev (and deputy chair of Russia\u2019s security council) warned that any attempt to arrest Putin would constitute a \u201cdeclaration of war<\/a>\u201d against Moscow. He invoked the threat of a \u201cnuclear apocalypse\u201d and said, \u201cIt\u2019s quite possible to imagine a hypersonic missile being fired from the North Sea from a Russian ship at the [ICC\u2019s] Hague courthouse.\u201d<\/p>\n

The U.S. government has also\u00a0threatened the ICC<\/a>. In 2002, the George W. Bush administration removed the U.S. signature from the Rome Statute and the following year, Congress passed the\u00a0American Service-Members\u2019 Protection Act<\/a>. It contains a clause called the \u201cHague Invasion Act,\u201d which states that if a U.S. or allied national is detained by the ICC, the U.S. military can use armed force to extricate them. This would apply to close U.S. ally Israel.<\/p>\n

Furthermore, the Bush administration effectively blackmailed 100 countries that were parties to the Rome Statute by forcing them to sign\u00a0bilateral immunity agreements<\/a>\u00a0in which they promised not to turn over U.S. persons to the ICC or else the United States would withhold foreign aid from them.<\/p>\n

Moreover, the United States, which refuses to join the ICC, expressed \u201cserious concerns about the ICC\u2019s attempts to exercise its jurisdiction over Israeli personnel<\/a>.\u201d Although Israel isn\u2019t a party to the Rome Statute, the ICC found that it has jurisdiction over war crimes committed in Palestine. In 2012, the U.N. General Assembly recognized Palestine as a\u00a0non-member observer state<\/a>\u00a0in the United Nations. Palestine acceded to the Rome Statute, thereby becoming a member of the States Parties of the ICC.<\/p>\n

Medvedev called the ICC a \u201clegal nonentity<\/a>.\u201d But even though neither Russia nor Ukraine are parties to the Rome Statute,\u00a0Ukraine has accepted the ICC\u2019s jurisdiction<\/a>\u00a0to prosecute crimes in its territory.<\/p>\n

UN Commission Found Evidence Against Russia & Ukraine<\/strong><\/p>\n

\"\"<\/p>\n

U.N. Human Rights Council room in Geneva. (U.N\/ Photo\/Jean Marc Ferr\u00e9)<\/strong><\/p>\n<\/div>\n

On March 16, the day before Khan announced the issuance of the arrest warrants, the Independent International Commission of Inquiry on Ukraine released an\u00a018-page report<\/a>\u00a0to the U.N. Human Rights Council. It documents war crimes committed by Russian forces and, to a lesser extent, by Ukrainian forces.<\/p>\n

The Commission report contains the following findings:<\/p>\n

UN Office of the High Commissioner for Human Rights (OHCHR) recorded 8,006 civilians killed and 13,287 injured in Ukraine since Feb. 22, 2022. As of Feb. 21, 2023, there were 8 million refugees from Ukraine throughout Europe, about 90 percent of whom are women and children. About 5.4 million people are displaced across Ukraine and nearly 18 million people in Ukraine are in need of humanitarian assistance.<\/p>\n

The Commission found \u201creasonable grounds to conclude that the invasion and Russian armed forces\u2019 attacks against Ukraine\u2019s territory and armed forces qualify as acts of aggression against Ukraine.\u201d<\/p>\n

\u201cWaves of attacks\u201d by Russian forces on \u201cUkraine\u2019s energy-related infrastructure and the use of torture by Russian authorities may amount to crimes against humanity.\u201d The Commission recommended further investigations.<\/p>\n

Russian forces targeted the infrastructure of Ukraine. \u201cThe disruption of electric substations, power plants, and other installations which produce the energy and the heating indispensable to the survival of the population, has inflicted significant harm to civilians.\u201d These attacks constituted the war crime of excessive incidental death, injury or damage.<\/p>\n

In addition, \u201cthe attacks have been widespread and systematic and may amount to the crime against humanity of other inhumane acts.\u201d Further investigation is necessary.<\/p>\n

Russian military operations near or within the Zaporizhzhia Nuclear Power Plant \u201csignificantly endangered the plant, prompting the risk of a serious nuclear incident.\u201d It caused a fire to break out and military equipment was located less than 150 meters from a reactor.<\/p>\n

There was a widespread pattern of summary executions by Russian forces. Many were preceded by detention, interrogation, torture or ill-treatment. Torture and the willful killing of civilians constitute war crimes.<\/p>\n

Torture was used by Russian authorities \u201cin a systematic and widespread manner.\u201d This could amount to crimes against humanity and should be further investigated.<\/p>\n

Indiscriminate attacks against civilians and civilian objects that intentionally target civilians constitute war crimes. The majority of attacks by Russian forces were indiscriminate.<\/p>\n

Russia\u2019s widespread uses of explosive weapons, especially in densely populated areas, were \u201cindiscriminate\u201d and \u201cdisproportionate\u201d because \u201cthey were initiated with an apparent disregard for the presence of . . . civilians.\u201d<\/p>\n

The bombardment and siege of Mariupol may amount to a crime against humanity. Further investigation, with access to Donetsk (including Mariupol), is recommended.<\/p>\n

In addition, the commission detailed willful killings, torture, unlawful confinement, rape, sexual and gender-based violence by Russian forces. The commission found a \u201cwidespread pattern of torture and inhuman treatment committed by Russian authorities against the people they detained\u201d and rapes \u201ccommitted at gunpoint, with extreme brutality and with acts of torture, such as beatings and strangling.\u201d<\/p>\n

Russia unlawfully annexed the occupied regions of Donetsk, Luhansk, Kherson and Zaporizhzhia, according to the commission. It referred to the \u201cso-called referendums\u201d that were held in those regions about incorporation into the Russian Federation.<\/p>\n

The commission also found unlawful transfers and deportations of children in Russian-controlled areas of Ukraine. Russian and Ukrainian officials reported that hundreds of thousands of children were transferred from Ukraine to the Russian Federation since Feb. 24, 2022.<\/p>\n

\u201cIn a limited number of cases, the Ukrainian armed forces were likely responsible for violations of international humanitarian law and human rights law, and for some incidents which qualify as war crimes,\u201d including indiscriminate attacks, in violation of international humanitarian law. They likely used cluster munitions and rocket-delivered antipersonnel landmines. Ukraine, like Russia, is a party to the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and their Destruction, which bans all use of anti-personnel landmines.<\/p>\n

More Charges Against Putin & Lvova-Belova Possible<\/strong><\/p>\n

\"\"<\/p>\n

Russian President Vladimir Putin, back to camera, meeting with Presidential Commissioner for Children\u2019s Rights Maria Lvova-Belova, March 9, 2022. (President of Russia)<\/strong><\/p>\n<\/div>\n

In spite of many other crimes that could have been charged, the ICC limited its allegations against Putin and Lvova-Belova to unlawful deportations and the transfer of children.<\/p>\n

\u201cGiven the politically charged situation, the prosecutor could have been looking for a limited charge which was, in his view, winnable,\u201d Beth Lyons, a defense counsel at the ICC, told\u00a0Truthout.<\/em><\/p>\n

\u201cHis March 17, 2023, statement of the arrest warrants against Putin and Lvova-Belova is a very political statement. In it, he acknowledges that the context of his application is Russia\u2019s acts of aggression against Ukraine. However, he doesn\u2019t focus on Russia\u2019s violation of the U.N. Charter and aggression, but rather on attacks against a sympathetic and vulnerable group (children). The case could be seen as a metaphor for the overall situation \u2014 the attack by Russia on the sovereignty of Ukraine.\u201d<\/em><\/p><\/blockquote>\n

At the end of Khan\u2019s statement,\u00a0he wrote<\/a>, \u201cUkraine is a crime scene that encompasses a complex and broad range of alleged international crimes. We will not hesitate to submit further applications for warrants of arrest when the evidence requires us to do so.\u201d<\/p>\n

\u201cIt is possible for the ICC to issue an arrest warrant and later the prosecutor can make a request to amend it to include additional charges,\u201d Lyons said.<\/p>\n

Since Russia is not a party to the Rome Statute,\u00a0Russian leaders can\u2019t be charged in the ICC with the crime of aggression<\/a>. A group of more than 30 countries is planning to create\u00a0a special tribunal<\/a>\u00a0to prosecute Russian officials for aggression.<\/p>\n

Meanwhile, fearful of setting a precedent that could result in future indictments of Americans,\u00a0the Pentagon is blocking U.S. efforts to share evidence with the ICC<\/a>\u00a0to assist in its case against Putin and Lvova-Belova. The U.S. Department of Justice is\u00a0helping Ukrainian prosecutors\u00a0<\/a>with logistical assistance, training and direct assistance in prosecuting Russian war crimes in Ukraine\u2019s courts.<\/p>\n

Although the United States refuses to join the Rome Statute, it cheers the ICC\u2019s prosecution of Putin. But when it comes to accountability of Israeli leaders for war crimes in Palestine, or U.S. officials for war crimes and crimes against humanity in Afghanistan, that\u2019s a different story.<\/p>\n

_________________________________________________<\/p>\n

\"\"<\/a>Marjorie Cohn <\/a>is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, and a member of the national advisory boards of Assange Defense<\/a>\u00a0and Veterans For Peace, and the bureau of the International Association of Democratic Lawyers. Her books include\u00a0<\/em>Drones and Targeted Killing: Legal, Moral and Geopolitical Issues<\/a>. She is co-host of\u00a0 <\/em>Law and Disorder<\/a> radio.<\/em><\/p>\n

\u200b\"\"<\/a>The International Criminal Court (ICC) [supposedly]<\/strong> investigates and, where warranted, tries individuals charged with the gravest crimes of concern to the international community: genocide, war crimes, crimes against humanity and the crime of aggression. https:\/\/www.icc-cpi.int\/about\/the-court<\/a>
\n<\/em><\/p>\n

Go to Original \u2013 consortiumnews.com<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

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