Marjorie Cohn reports on a war-crimes complaint filed with the ICC against the U.S. president, Israeli Prime Minister Benjamin Netanyahu and Trump adviser Jared Kushner 
By Marjorie Cohn
Truthout
A war crimes complaint has been filed against President 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’ 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.
Trump issued an executive order on June 11 declaring a national emergency because, he says, any ICC attempt to investigate, arrest, detain or prosecute any personnel of the United States or its allies (Israel) without consent to the court’s jurisdiction “constitutes an unusual and extraordinary threat to the national security and foreign policy of the United States.”
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 Annexation is an Alleged War Crime
President Donald J. Trump delivers remarks with Israeli Prime Minister Benjamin Netanyahu, Jan. 28, 2020, in the East Room of the White House to unveil details of the administration’s Middle East Peace Plan. (White House/Shealah Craighead)
Schabas’ 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 ICC Has No Jurisdiction
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 former President Bill Clinton signed the Rome Statute as he left office, the United States never ratified it. In an unprecedented move, President 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.
ICC prosecutor Fatou Bensouda. (ICC)
On March 5, the ICC Appeals Chamber accepted prosecutor Fatou 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 Dec. 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.
US Pressure Didn’t Work the First Time
Protest against the war in Afghanistan, Dec. 22, 2009, New York City. (Felton Davis, CC BY 2.0, Wikimedia Commons)
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
Trump’s June 11 executive order was also designed to shield Israeli officials from liability in the ICC for their war crimes.
On Dec, 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.”
IDF forces prepare to enter Gaza, July 17, 2014. (IDF, Flickr)
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.”
‘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.
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, deputy secretary general of the International Association of Democratic Lawyers and a member of the advisory board of Veterans for Peace. Her most recent book is “Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues.”
This article is from Truthout. Reprinted with permission.
The views expressed are solely those of the author and may or may not reflect those of Consortium News.
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In a lawless world, the only recourse is lawless.
Unimportant news from Syria and Iraq (Google News links only to Israeli newspapers)
(Early on) Saturday, unidentified warplanes carried out an airstrike on a convoy that killed 35 pro-Iranian militiamen in the Deir ez-Zor province in eastern Syria, Turkey’s Anadolu news agency reported.
(Afterwards, on the same day) A US military convoy was ambushed in southwestern Iraq on Saturday, as gunmen attacked and torched three large trucks carrying equipment and logistical materials for US forces in the country, according to London-based daily Al-Araby Al-Jadeed.
The trucks were traveling from Basra when they were targeted between Diwaniya and Samawah. Gunmen forced the drivers to exit the vehicles and then set the vehicles on fire, according to the report.
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US has chosen to bribe Iraqi parties and threaten to seize Iraqi accounts in USA (35 billion dollars) to engineer inactive government and to be present in Iraq and Syria without a shred of legal basis. These troops may be besieged in a similar manner. Europeans have almost infinite patience with boorishness of USA and Israel, but the world is wider than that.
The Zionist have effectively gained control of our foreign policy apparatus on all things relating to Israel’ s. national interest since its inception even going back to WW1 when they ( e.g. Justice Brandeis) persuaded Wilson to enter the War along with England to ensure a national home for the Zionist. Since LBJ, we have given unnatural attention to Israel’s national interest at the expense of our own. George Washington would not approve of this unnatural alliance. The Iraq war, the destruction of Syria, the imminent war with Iran are all illustrative of this. During LBJ’s term, Operation Cyanide which included the USS Liberty incident, if carried through, would have involved bombing Cairo during the 6 day War and then on to Moscow. Luckily for civilization, the USS Liberty did not sink and our planet still exist, the biggest threat to world peace is now Israel as long as they have our unconditional support. Our own Senate and House are in the pocket of Israel through AIPAC. Our country is being happily sucked dry by ruthless Zionist leaders who could care less about the welfare of the U.S. even while watching the smoldering pile of ash that is currently in progress.
We Americans have been committing major war crimes since the 1600s, long before Israel existed.
Ordinary Americans have been cool with US War crimes for a liooong time.
Proof of how corrupt Washington really is. On top of that Washington & Tel Aviv get away with the MURDER of millions of people without even being prosecuted. UN & International LAWS doesn’t make a difference until this criminal top is prosecuted & imprisoned!
Let the ICC investigation continue. A criminal investigation is not a national emergency. The International Association of Democratic Lawyers has it right. The UN should impose sanctions on Israel.
The US is trying to hide itself and Israel by attacking the ICC.
You can’t put it on Trump, because the US has been doing the same thing since the ICC was created. Democrats and Republicans alike have done the exact same things.
The problem is our government, not Trump. The fix is major reform, not returning power to those who lost it to Trump. They lost it because they were so bad that even Trump could defeat them.
“Hiding”? It is like a small child rolling on the floor, banging it with fists, to “hide” that it broke something.
Well the photo says it all. Seems like Benjamin is loved by all of Washington, there’s no need to even hide anything really. Has the opposition party there, the Democrats and Biden and Pelosi strongly disapproved of Israel’s annexation? We’re all in for Israel. I think a lot of Americans have conscientious objections to things like drone killings and all that stuff, but who do we vote for to change things? The third party candidates are hamstrung and not allowed on t.v. debates and it’s not a fair playing field, so therefore they can’t win. And both major parties are on the same page with such things. And even in the Democratic primary debates, I don’t recall things like this even being mentioned in any robust kind of debate. I mean it sounds ridiculous to say, but our support is unconditional at this point. I guess the question is why?
There will be no peace until there is justice. And there will be no justice until the entity that illegally occupies Palestine (and also controls US government) ceases to exist. That’s my prediction. That’s why I s as m not getting the popcorn out yet.
The US Congress passed the American Service-Members Protection Act overwhelmingly in a bipartisan manner (280-138 in the House, 71-22 in the Senate) in 2002. Now that George W. Bush is a “Rehabilitated Democrat” along with Dick Cheney, there’s really no use complaining about the “Hague Invasion Act”, which authorizes the U.S. president to use “all means necessary and appropriate to bring about the release of any U.S. or allied personnel being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court”. This is ESTABLISHMENT BIPARTISAN AMERICA, not some clown move by Trump as Cohn implies.
Israel is not protected by the ASMPA, but good luck getting Congress to stand up to Israel or support the ICC. Our politicians are too busy over-ruling Trump’s withdrawals of troops.
Well, Ms. Cohen, I wish you the best of luck. The US loves to play lawfare when we’re doing the playing and hates it when somebody else is doing the playing. The ICC is attempting to do what the UN was created to do – get the nations of the world, both weak and powerful, to play by the same set of rules. Unfortunately, the US and their vassals – the likes of the UK, Sweden, Germany, France, Holland, Italy, Japan, et al. – have no intention of playing by anybody’s rules but their own and they will change those rules to ensure that they continue to win.
The US is truly an evil empire.
the only solution for israel/palestine is to recognize the israeli annexation and obtain voting israeli citizenship for the disenfranchised palestinians, trump’s (and reuven rivlin’s) one-state solution.
Just because America has started needless wars based on lies, overthrown democratic governments, installed hundreds of military bases all over the planet, exported more killing equipment than anyone else and regularly kills people without due process are not reasons enough to think that America should be held responsible for these actions. This is, after all, the indispensable nation. Or is that the despicable nation?
Very despicable. I call it the evil empire.
This country is all for accusations of foul play until they point towards it – it would seem that the president and military alike view them as another useful tool to “play the game”.
Reminds me of my mother.
Every American president since Jimmy Carter, and several preceding him, have been blatantly guilty of war crimes. What’s so egregious about Trump’s actions, beyond his many concessions to Israel, that prompts a veritable zoo of war criminals across the political spectrum in Washington to want to gang up and prosecute him specifically for war crimes! This is the whole sink of unwashed cookware calling one specific skillet black. Not a chance this has been anything other than an incompetent coup attempt ongoing for the past four years? Nah, couldn’t be. Our exceptional American politics are too principled and refined for any such thing. Having said all that does not imply my approval of anything Trump has done while in office, which too many will be unable to grasp by the “logic” they employ. Clearly the Dems have come to completely embrace Dubya’s philosophy of you’re either with us or against us. Personally, I’m opting out of both strains of brutal madness.
I agree Realist. However, I still think it’s better late than never. You have to start somewhere. Ideally, all the presidents of my lifetime (even Jimmy Carter for the East Timor genocide supported by the US) would be prosecuted. That said, if we had true rule of law they could be prosecuted in US courts for violating Article VI of the Constitution, since every treaty signed by the US is “the supreme law of the land,” including the Geneva Conventions, which the shrub’s AG called “quaint”.
This is exactly how I feel, too. Brutal madness, with both wings of the American war hawk behaving in ways that I cannot condone or support – to say nothing of their faithful mouthpiece, the corporate press. I reject them all at this moment, regardless of how they or those close to me feel about my doing so.
Since Truman and the Korean War, at least.
Jordan is a member of the ICC and the West Bank is technically Jordanian. Any moves by Israel to annex this territory for lebensraum should be within the purview of the ICC.
Morally, if the Nazis were evil for seeking lebensraum in WW2 then it is just as evil for Israel to do the same in Palestine. And if the West sanctions Russia for annexing Crimea then it should do the same if Israel annexes the Golan Heights and the West Bank.
The Israeli military, the IDF (ISIS Defence Force) routinely murders Palestinians, Syrians and Iranians with impunity. They unilaterally declared war on Iran and have undertaken literally hundreds of military attacks on them, all while the MSM declare Iran to be the aggressor.
War of aggression is the greatest war crime there is but Israel is effectively a UN Security Council veto power via its relationship with the US. Until the US adopts a less intransigent approach China should give Iran the same sort of patronage while Russia backs North Korea.
Moi, I couldn’t agree more – except I would only add that “Israel” is the Occupier of All Palestine (OAP), both that which the UN illegitimately, unethically (in my opinion) literally awarded them back in 1948 and that which they, to all intents and purposes, control/govern now – the far smaller remnants of Palestine in the West Bank and Gaza. These latter areas are heavily encroached by the OAP via settlements, non-Palestinian available roads and OAP military/”legal” control (including killing, bulldozing of homes, burning of olive groves etc…). Only protection by the US, the apparently knee-knocking fear of other western nations and bodies of being accused of anti-jewishness and the equal deep-seated concern by western nations of being required to stump up more reparations prevents the OAP being charged with a long list of crimes against humanity (i.e against the Palestinians first and foremost and then the Lebanese).
Too, the Brits ought to be charged with crimes against humanity given their mind-boggling presumption that “they” had the “right” to hand over Palestinian lands to ANY other group of people; and what that has led too – well supported throughout by the British ruling elites. ANY. And this well before WWII, well before Hitler’s rise to power. But that is Orientalism for you – an egregious racism toward a region’s peoples that were civilized millennia before the low melanin folks of western Europe (including those in the Brit Isles) left the caves and huts and woad behind.
The trouble is that the UN is but a squeaking toy – all noise but no action because it is, to many intents and purposes, a tool of the US; because the Security Council is the “ruling” group, when it should be the Whole Assembly that determines the UN’s actions. Not just the handful of post-imperialist and imperialist arse**** countries.