The ICC’s double standard in the treatment of Ukraine and Palestine is largely due to political coercion by the U.S., which isn’t even a party to the court’s Rome Statute, writes Marjorie Cohn.
On March 17, a little more than one year after Russia’s invasion of Ukraine, Karim Khan, chief prosecutor of the International Criminal Court (ICC), announced that 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’s rights in the Office of the President of the Russian Federation, for the same war crimes.
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’s treatment of the situations in Ukraine and Palestine. This is largely due to political coercion by the United States, which isn’t even a party to the ICC’s Rome Statute.
The PTC confirmed that there are “reasonable grounds” to believe that Putin and Lvova-Belova unlawfully deported and transferred “at least hundreds of” Ukrainian children from occupied areas of Ukraine to the Russian Federation, in violation of article 8(2)(a)(vii) and article 8(2)(b)(viii) of the Rome Statute.
Khan had opened an investigation into the situation in Ukraine on Feb. 28, 2022, finding a “reasonable basis to believe that both alleged war crimes and crimes against humanity have been committed in Ukraine.” The arrest warrants were issued one year later — lightning speed for the ICC.
Contrast that with the ICC’s handling of the investigation of war crimes in Palestine.
After Seven Years, No Charges
After a five-year preliminary examination, former ICC Chief Prosecutor Fatou Bensouda found there was a reasonable basis to believe that Israeli leaders committed war crimes and crimes against humanity in Palestine, 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.
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’s unlawful transfer of Israeli Jews into settlements located on Palestinian land.
In December 2022, three leading Palestinian human rights organizations issued a joint statement to the Assembly of States Parties to the Rome Statute (the management arm of the ICC), stating, “We have not seen any concrete step in this investigation, no action by the Prosecutor to break the vicious cycle of impunity.”
The rights groups distinguished the ICC prosecutor’s inaction on Palestine from the situation in Ukraine. “It 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,” the groups wrote. “Victims should not be competing for justice and double standards should not have a place in justice.”
US Derailed ICC Investigation in Afghanistan
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.
In March 2020, the ICC finally authorized a formal investigation of U.S., Afghan and Taliban officials for war crimes committed in the “war on terror.” 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.
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’s affiliate in Afghanistan. When the Biden administration lifted the sanctions that Donald Trump had levied on ICC personnel, “it did so with the tacit understanding that the court’s probe on U.S. crimes wouldn’t resume,” Alice Speri wrote at The Intercept.
“This was clearly a political decision — there’s really no other way it can be interpreted,” Jennifer Gibson, a lawyer with the human rights group Reprieve, said. “It gave the U.S., the U.K. and their allies a get out of jail free card.”
Russia & US Both Threaten ICC
Although the ICC doesn’t 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’s unlikely they will be arrested, the possibility of arrest will likely hinder their international travel.
Former Russian President Dmitry Medvedev (and deputy chair of Russia’s security council) warned that any attempt to arrest Putin would constitute a “declaration of war” against Moscow. He invoked the threat of a “nuclear apocalypse” and said, “It’s quite possible to imagine a hypersonic missile being fired from the North Sea from a Russian ship at the [ICC’s] Hague courthouse.”
The U.S. government has also threatened the ICC. In 2002, the George W. Bush administration removed the U.S. signature from the Rome Statute and the following year, Congress passed the American Service-Members’ Protection Act. It contains a clause called the “Hague Invasion Act,” 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.
Furthermore, the Bush administration effectively blackmailed 100 countries that were parties to the Rome Statute by forcing them to sign bilateral immunity agreements in which they promised not to turn over U.S. persons to the ICC or else the United States would withhold foreign aid from them.
Moreover, the United States, which refuses to join the ICC, expressed “serious concerns about the ICC’s attempts to exercise its jurisdiction over Israeli personnel.” Although Israel isn’t 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 non-member observer state in the United Nations. Palestine acceded to the Rome Statute, thereby becoming a member of the States Parties of the ICC.
Medvedev called the ICC a “legal nonentity.” But even though neither Russia nor Ukraine are parties to the Rome Statute, Ukraine has accepted the ICC’s jurisdiction to prosecute crimes in its territory.
UN Commission Found Evidence Against Russia & Ukraine
On March 16, the day before Khan announced the issuance of the arrest warrants, the Independent International Commission of Inquiry on Ukraine released an 18-page report to the U.N. Human Rights Council. It documents war crimes committed by Russian forces and, to a lesser extent, by Ukrainian forces.
The Commission report contains the following findings:
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.
The Commission found “reasonable grounds to conclude that the invasion and Russian armed forces’ attacks against Ukraine’s territory and armed forces qualify as acts of aggression against Ukraine.”
“Waves of attacks” by Russian forces on “Ukraine’s energy-related infrastructure and the use of torture by Russian authorities may amount to crimes against humanity.” The Commission recommended further investigations.
Russian forces targeted the infrastructure of Ukraine. “The 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.” These attacks constituted the war crime of excessive incidental death, injury or damage.
In addition, “the attacks have been widespread and systematic and may amount to the crime against humanity of other inhumane acts.” Further investigation is necessary.
Russian military operations near or within the Zaporizhzhia Nuclear Power Plant “significantly endangered the plant, prompting the risk of a serious nuclear incident.” It caused a fire to break out and military equipment was located less than 150 meters from a reactor.
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.
Torture was used by Russian authorities “in a systematic and widespread manner.” This could amount to crimes against humanity and should be further investigated.
Indiscriminate attacks against civilians and civilian objects that intentionally target civilians constitute war crimes. The majority of attacks by Russian forces were indiscriminate.
Russia’s widespread uses of explosive weapons, especially in densely populated areas, were “indiscriminate” and “disproportionate” because “they were initiated with an apparent disregard for the presence of . . . civilians.”
The bombardment and siege of Mariupol may amount to a crime against humanity. Further investigation, with access to Donetsk (including Mariupol), is recommended.
In addition, the commission detailed willful killings, torture, unlawful confinement, rape, sexual and gender-based violence by Russian forces. The commission found a “widespread pattern of torture and inhuman treatment committed by Russian authorities against the people they detained” and rapes “committed at gunpoint, with extreme brutality and with acts of torture, such as beatings and strangling.”
Russia unlawfully annexed the occupied regions of Donetsk, Luhansk, Kherson and Zaporizhzhia, according to the commission. It referred to the “so-called referendums” that were held in those regions about incorporation into the Russian Federation.
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.
“In 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,” 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.
More Charges Against Putin & Lvova-Belova Possible
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.
“Given the politically charged situation, the prosecutor could have been looking for a limited charge which was, in his view, winnable,” Beth Lyons, a defense counsel at the ICC, told Truthout.
“His 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’s acts of aggression against Ukraine. However, he doesn’t focus on Russia’s 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 — the attack by Russia on the sovereignty of Ukraine.”
At the end of Khan’s statement, he wrote, “Ukraine 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.”
“It 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,” Lyons said.
Since Russia is not a party to the Rome Statute, Russian leaders can’t be charged in the ICC with the crime of aggression. A group of more than 30 countries is planning to create a special tribunal to prosecute Russian officials for aggression.
Meanwhile, fearful of setting a precedent that could result in future indictments of Americans, the Pentagon is blocking U.S. efforts to share evidence with the ICC to assist in its case against Putin and Lvova-Belova. The U.S. Department of Justice is helping Ukrainian prosecutors with logistical assistance, training and direct assistance in prosecuting Russian war crimes in Ukraine’s courts.
Although the United States refuses to join the Rome Statute, it cheers the ICC’s 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’s a different story.
Marjorie Cohnis 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 and Veterans For Peace, and the bureau of the International Association of Democratic Lawyers. Her books include Drones and Targeted Killing: Legal, Moral and Geopolitical Issues. She is co-host of “Law and Disorder” radio.
This article is from Truthout and reprinted with permission.
The views expressed are solely those of the author and may or may not reflect those of Consortium News.
This grayzone video reports on type of school under ICC charges as kidnapping etc. etc.–
Opportunity to study CNN et al propaganda juxtaposed with reality. These kids were given sanctuary not torture.
I would seriously question the veracity of the many accusations by OHCHR that the author cites, since this UN organization has no-doubt been co-opted by the US and should be considered a compromised, non-credible source. Recall what happened to the UN’s Boutros Boutros-Ghali, losing his position by the singular opposition & pressure by the US…
It seems that, when Consortium News publishes what appear to be well-sourced allegations of Russian war crimes against Ukraine people, its readers are unable to accept them. Instead, those readers direct our attention elsewhere. Any intelligent reader of CN is well aware of the war crimes committed by the US and UK governments which have been extensively covered on this site and others. So it is interesting, if saddening and depressing, to read this brief account of what Russia’s government has trained its conscripts to inflict on the conscripts and civilians of Ukraine, acts which are similar to those committed by American and British forces in Iraq, Afghanistan and all the other victims of Western imperialism. Vladimir Putin could justifiably stand before an ICC judge and claim he was doing only what he learned from the masters of atrocities.
One of the problems with your comment is your eagerness to indict CN readers, by presumption, without sufficient clarity in the report you’re referring to. This suggests bias and irrational anger, as usual, in your comments. The report does not contain enough information on which to draw your conclusions. “Invasion” along with the military actions taken for that purpose, for example, might be included as a “war crime.” Crimes of torture and summary execution etc. need to be specific to those committing them. Do they apply to individuals versus as command instructions for Russian forces in general? Why do these charges exclude years of attacks by Ukraine on, for example, the Donbas region? Is taking various regions of Ukraine into protection, as with Crimea (action initiated and approved by the Crimean people) considered “war crimes” in this indictment? In short, as the author indicates, action by the ICC here suggests bias. As she indicates, further investigation is needed. Take another look at your “what Russia’s government has trained its conscripts to inflict on the conscripts and civilians of Ukraine” comment. Where in the report is this conclusion? I believe the problem in your comment is called “leaping to conclusions.”
Yeah, the actions of icc and ohchr during this war hardly seem to be objective and unbiased. This is the reason why cn readers tend to be critical to these accusations at the moment. The fact that ohchr does not tell us about ukraine nazis hiding behind civilians and fortifying resident buildings alone tells us that its findings are not objective.
I think you Rebecca are a bit naive.
The US refuses to be a signatory to the ICC because it believes Americans are superior human beings and no American should ever be held to account, regardless of the atrocity they commit. Simple really.
Israel represents the most murderous and evil colonial enterprise in modern history and it only exists because the US supports its apartheid colonial military existence. Shame on Americans for their hypocrisy regarding Palestine, who have every right to fight their occupiers.
What everyone seems to be talking around is the fact that the Deep State, mainly because it owns individuals world wide through coercion and blackmail can “get to” as in compromise , just about anyone who hold highly placed government positions.
Whats worse in our current period of time we should all be aware that if the don’t have something on their target of their choice they will make sure something is done to gain that leverage.
If as an individual one cannot wrap themselves around this truth they likely haven’t read enough of the worlds history from 1932-1939 to date.
These methods can be explained to someone but no they must learn to understand these truth themselves.
From the article: “…..the U.S. celebrates the arrest warrant against Putin…”
RE: “What everyone seems to be talking around is the fact that the Deep State, mainly because it owns individuals world wide through coercion and blackmail can “get to” as in compromise , just about anyone who hold highly placed government positions.”
Well said, robert e williamson jr!
The Grayzone hosted journalist, Jeremy Loffredo, who visited the music study camp in Russia where the “kidnapped” children were actually enjoying classes at a music study camp for two weeks:
“Inside a Russian youth camp condemned by the ICC”
So our propaganda is so bad that it twists a privilege for children into lies. Have they no shame?
There is nothing that our current government says that can be trusted.
Cohn sometimes attributes language to the Commission findings, but other times sounds like she is asserting allegations as facts, ie;
“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.
“Torture was used by Russian authorities ‘in a systematic and widespread manner.’ This could amount to crimes against humanity and should be further investigated.”
As to attacks on infrastructure being a war crime, until the bombers of both the Nordstream pipelines and Crimean bridge are held accountable, any prosecution of Russia is clearly selective. Maybe it will finally be clear that the emperor has no clothes, and the ICC is to be thrown out.
I would just like to add that Israel, the sole Jewish nation, is some 1% of the Mideast region. Jews are indigenous to that land, the historic Jewish nation of Palestine, restored via the UN in 1948 and renamed Israel. By contrast, some 99% of the Mideast consists of the (22) Arab countries, most of which are, indeed, apartheid states. Draw your own conclusions.
Is there some way to send Bush II and all his cabinet to the Hague?
And Herr Obama? And Biden too?
How about victoria loser noland?
Usually I find Marjorie Cohn’s articles reasonable, but this one would benefit from some framework built around the ultra-biased UN assessment of war crimes in the many-years’ provoked SMO of Russia. After a litany of questionable claims about supposed Russian crimes, the pro-Ukraine bias is revealed in the words “In a limited number of cases . . . the UAF were likely responsible for …” The real question is whether the crimes were an official part of the armed forces of each side, or whether they were random individual acts not part of the armed forces’ policy.
At the beginning of the conflict the Ukrainian armed forces stated that they would not honor the Geneva Convention on POWs. They proudly posted videos of sadistic acts publicly committed against Russian POWs. Torture, summary executions, public crucifixions and punishment of minorities, and a recent mass grave of thousands of people discovered in Donbas–these acts have been committed by the UAF, documented by independent sources, since the beginning of the SMO. And this does not take into account the eight years of near-constant shelling of Russian speakers in Donbas.
It is increasingly clear that this conflict has become a money-laundering operation. The Commission of Inquiry’s report released to the UN reeks of bias- and word-laundering that tar-and-feathers one side while whitewashing the other.
Again, some framework provided for this article, which unevenly presents a double standard in the treatment of Ukraine and Palestine, and then inserts commentary on the outrageous, Russophobic agenda of the ICC in its indictments of the Russian head of state and official for the protection of children. Cohn’s article was confusing, perhaps assembling too much material and not providing that framework that would have improved it. The persecution of canonical Orthodox priests and monastics at the Kiev Caves Lavra presents another horrific example of a violent official policy of the Ukrainian government. This is a pogrom, pure and simple. I do hope that UN bodies, World Council of Churches, and the Vatican will condemn this act, rather than remaining silent.
Does anyone with ethics take the Imperialist Collaborator Court seriously? Has it ever tried someone who is neither eastern European nor from the Global South?
I do not take any UN body seriously because the UN is a wholly captured institution. (Just read that the UNWomen used the trans-identified male who threw soup on Kellie-Jay Keen in New Zealand as a representative of womanhood.) I do not take the ICC seriously because the ICC is a wholly captured institution. They possess not an ounce of credibility.
So Putin getting Children out of a active Warzone is a crime according to the idiots in the ICC? How ridiculous, this ludicrous Court is a utter embarrassment & laughingstock of ineptitude! Of course the hypocrisy of the US knows no bounds, they themselves don’t recognise the jurisdiction of the ICC but without a shred of shame, they suggest other Nations enforce this Kangaroo EU Court ICC arrest warrant for Putin but when the spotlight gets turned on them & US War crimes, then the US threats come out? The Americans created a Law thats commonly know as the Hague Invasion Act which authorises US Military action against the ICC at the Hague, if ever they attempted to arrest or take too trial any American Serviceman! Ironic isn’t it, they are prepared to bomb the Hague to ensure no US citizen can face justice for their crimes against Humanity! Well Russia doesn’t acknowledge or recognise the jurisdiction of the ICC as well & any attempts to arrest & extradite Putin to the Hague will be met with the same result as what the Americans are prepared to do & that is reducing the Hague to a pile of smoking ruins! That’s what I call justice for the ICC, the Hague is trying to enforce the Law of the Jungle on Putin & the Russians will never stand for it, just as the hypocritical Americans wouldn’t stand for it, this Court is completely discredited & illegitimate & should be disbarred, disbanded & thrown in the dustbin of History!
I wholeheartedly agree with you kiwiantz62
Where will vulnerable children be safer… in an Active War Zone… or Behind the lines?
There is no question about the double standards imposed on the ICC by the U.S – that’s well established fact. But I have a couple of questions about the “Russian deportation and transfer of Ukrainian children in occupied Ukraine to Russia”.
1. What was the reason for the “deportation or transfer”? My own suspicion is that it was for the safety of the children since the territory occupied by the Russians was a combat zone and everyone’s safety was at risk.
2. Was this “deportation or transfer” done with or against the wishes of the parents?
3. What happened to the parents?
IF this transfer was done with the permission of the parents or guardians for the safety of the children, there is no way it could be construed as a crime of any kind.
Putin offered the Women & Children sanctuary from a Warzone, so under what depraved logic is that to be considered a War crime? The people evacuated from the Donbass to Russia was made with the full compliance & agreement of those Breakaway regions Leadership & a lot of those children were orphans due to Zelensky’s butchering Azoz Nazis! The US killed over 500,000 children in Iraq alone & Madeleine Albright said that the price paid was worth it? Where was the ICC arrest warrants for Albright & Bush for the murder of thousands of innocent children? It’s disgusting & hypocritical but also cynical beyond belief! Putin should be receiving a Nobel Peace prize not a ICC Arrest warrant which should be going to Bush & Blair for these War crimes? Albright is already rotting in Hell for her murder of Children & Bush & Blair may escape justice in this World but they won’t in the next World they’ll be joining Albright, McCain & all the other US Tyrants that have killed innocents!
It seems a bit unclear doesn’t it ?
Are these children ethnic Russian ?
How many lost parents amongst the 14,000+ Ukrainians killed by their fellow Ukrainians between 2014 and 2022 ?
I would guess that the answer to both of the above is mainly yes.
These probably are children who, following referendums, became citizens of the Russian Federation. Their regions chose to leave Ukraine for very good reasons, although of course not reasons anyone in the West was bothered about prior to 2022.
In the final analysis, its just another scam, an attempt to claim the moral high ground.
The Deep State’s greatest pride is probably that there is nothing that it feels it cannot corrupt. The ICC is a prime example. Hypocrisy uber alles!
At the end of the Vietnam War, the US launched Operation Babylift.
“Over 2,500 children were relocated without their consent and adopted out to families in the United States and its allies. The operation was controversial because there was question about whether the evacuation was in the children’s best interest, and because not all the children were orphans.”
In the UK, Keir Starmer backed a war crimes trial for Putin but backed a knighthood for Tony Blair!
“In the UK, Keir Starmer backed a war crimes trial for Putin but backed a knighthood for Tony Blair!”
Some politicians just have no ethics, conscience, moral fibre or any idea of what they are doing.
Isn’t it interesting that immediately after being charged with the crime of removing children from a war zone Putin visited Mariupol, where the whole world watched for weeks as the Azov Battalion used civilians as human shields?
When the U.S., “the shining city on a hill,” disables its adherence to so many international organizations and restraints (I mean human rights treaties, nuclear treaties, etc.), we can be certain that it correlates with a foreign policy of unquestioned hegemony. In thirty years, the rest of the world will do to us what we did to Cuba: cut us off from all international commerce so we can enjoy our early, twenty-first century cars in complete peace and authoritarian bliss for half a century more. The Wild West is our only probable future, our manifest destiny. What happens when money can no longer buy the disintegration of civilized reality? The small operator will excel, and local commissions will then decide our reality for us. I’m sure they’ll be as enlightened as our worst actors in government today.
Meanwhile, Kahn’s brother, a British Conservative MP and convicted chikd molester, obtained an early prison release. Go figure.
We are living in dangerous times indeed : a blinkered ICC prosecutor’s legal moves facing a reactionary nuclear apocalyphal Russian response ?Clearly, we have a ballsy Medvedev hold on “BALLSy” ICC’s Khan ! By the way, where was Khan on human rights crimes in Palestine, Kashmir, Vietnam, Korea, Afghanistan etc, etc …. ?
Fits in beautifully with Whitney Webb’s detailed tome of corruption.
So, let me get this straight. It is an international crime to remove children from a warzone to a safer place further in the rear?
The charges are of course in Dean Dormer Double Secret Probation style, so we don’t really know what is alleged by the secret witnesses in the secret testimony, but all we’ve been told is that these evil people took children out of a warzone. Gasp!
Of course, this makes sense if you are the sort of ruler who believes that these children belong to you, and that you consider it a crime to remove your property without your permission. It also makes sense in the racist sort of way that says you regard other people as sub-humans, and how dare we let those heathens raise good civilized children and corrupt them.
I am so glad that the Democrats and the Pro-War-Gressives are bringing back such exceptional old values.