Marjorie Cohn raises the prospect of the U.S. government invoking the 2003 “Hague Invasion Act” to extract Israeli officials from the ICC if they are arrested.
International Criminal Court, The Hague. (Greger Ravik, CC BY 2.0)
The International Criminal Court’s (ICC) stunning issuance of arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant for war crimes and crimes against humanity is a major game changer. After years of impunity, the chickens unleashed by Israel’s genocidal campaign in Gaza have finally come home to roost.
These charges against Netanyahu and Gallant are momentous. This is the first time the ICC has issued arrest warrants against an Israeli official for crimes against the Palestinian people. It is only the second time in its 22 years of existence that the ICC has issued an arrest warrant for someone who is not from the African continent.
Palestinian human rights organizations Al-Haq, Al Mezan Center for Human Rights, and the Palestinian Centre for Human Rights called the ICC’s decision “a historic and pivotal moment in the battle against Israel’s impunity, in which the Palestinian people have been denied justice, and subjugated for decades under a genocidal, settler-colonial apartheid regime.”
[On Monday the ICC president blasted both the U.S. and Russia for interfering with the court in “appalling” attacks.
“The court is being threatened with draconian economic sanctions by another permanent member of the Security Council [the U.S.] as if it was a terrorist organization,” Judge Tomoko Akane said.]
US History of Undermining the ICC
The United States had a fraught relationship with the ICC even before it opened for business in 2002. As President Bill Clinton was leaving office, he signed the court’s Rome Statute, stating,
“I believe that a properly constituted and structured International Criminal Court would make a profound contribution in deterring egregious human rights abuses worldwide, and that signature increases the chances for productive discussions with other governments to advance these goals in the months and years ahead.”
But Clinton urged incoming President George W. Bush to refrain from sending it to the Senate for advice and consent to ratification. Bush went even further and, in an unprecedented move, unsigned the treaty on behalf of the United States. Since then, the U.S. has consistently tried to undermine the ICC.
Clinton and Bush in September 2014. (George W. Bush Presidential Center, Flickr, CC BY-NC-ND 2.0)
In 2003, Congress passed and Bush signed the American Service-Members’ Protection Act, which is known as “The Hague Invasion Act.” It says that if a U.S. or allied national is detained by the ICC in The Hague, Netherlands, the U.S. military can use armed force to extricate them. This would apply to close U.S. ally Israel.
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 the United States would withhold foreign aid from them.
Senate Majority Leader John Thune has introduced bipartisan legislation to sanction ICC prosecutors who try to file charges against Israeli officials. Forty-two Democrats voted for the House version of Thune’s bill.
When he was president, Donald Trump imposed sanctions on ICC prosecutors in a reprisal against the court’s investigations of Israeli leaders, and investigations of U.S. officials for war crimes committed in Afghanistan. Although President Joe Biden reversed Trump’s order in 2021, he reiterated the U.S. government’s “longstanding objection to the Court’s efforts to assert jurisdiction” over Israeli and U.S. personnel.
The Biden administration, which has sent at least $17.9 billion in military aid to Israel since Oct. 7, 2023, denounced the charges against Netanyahu and Gallant. A spokesperson for the National Security Council said in a statement that the ICC has no jurisdiction over Israel, the U.S. is consulting with Israel on “next steps,” and “The United States fundamentally rejects the court’s decision to issue arrest warrants for senior Israeli officials.”
By providing military support and diplomatic cover to Israel, U.S. leaders could be charged under the Rome Statute with aiding and abetting Israel’s war crimes and crimes against humanity. But the ICC is unlikely to file such charges.
Will the U.S. government play spoiler of international justice by invading The Hague to extract the Israeli officials if they are arrested? Sen. Tom Cotton (R-Arkansas) responded to the arrest warrants by invoking The Hague Invasion Act. “Woe to him and anyone who tries to enforce these outlaw warrants,” he warned. “Let me give them all a friendly reminder: the American law on the ICC is known as The Hague Invasion Act for a reason. Think about it.”
War Crimes Against Civilians
U.S. Secretary of Defense Lloyd Austin with Netanyahu and Gallant in Tel Aviv on Oct. 13, 2023. (DoD, Chad J. McNeeley, CC BY 2.0)
On Nov. 21 — Day 441 of Israel’s genocidal campaign which has killed more than 44,000 Palestinian people — the ICC’s Pre-Trial Chamber I announced that it found reasonable grounds to believe Netanyahu and Gallant were co-perpetrators of the war crime of starvation as a method of warfare, committed from at least Oct. 8, 2023, until at least May 20, 2024, the day the prosecution filed the applications for arrest warrants.
The Chamber found reasonable grounds to believe that Netanyahu and Gallant “intentionally and knowingly deprived the civilian population in Gaza of objects indispensable to their survival, including food, water, and medicine and medical supplies, as well as fuel and electricity.” The Chamber noted the role of Netanyahu and Gallant “in impeding humanitarian aid in violation of international humanitarian law and their failure to facilitate relief by all means at its disposal.”
In addition, the decisions by the two Israeli officials to allow or increase humanitarian aid “were not made to fulfil Israel’s obligations under international humanitarian law or to ensure that the civilian population in Gaza would be adequately supplied with goods in need,” the Chamber concluded. They were, rather, “a response to the pressure of the international community or requests by the United States of America.”
The Chamber also found reasonable grounds to believe that Netanyahu and Gallant bear criminal responsibility as civilian superiors for the war crime of intentionally directing an attack against the civilian population.
Crimes Against Humanity
The Dutch prison in Scheveningen, The Hague, which the ICC uses as its detention center for those charged with crimes. (Michiel1972, Wikimedia Commons, CC BY-SA 3.0)
Pre-Trial Chamber I found reasonable grounds to believe that Netanyahu and Gallant were co-perpetrators of the crimes against humanity of murder, persecution, and other inhumane acts during the same time period.
“[T]he lack of food, water, electricity and fuel, and specific medical supplies, created conditions of life calculated to bring about the destruction of part of the civilian population in Gaza, which resulted in the death of civilians, including children due to malnutrition and dehydration,” the Chamber concluded. Thus, “there are reasonable grounds to believe that the crime against humanity of murder was committed in relation to these victims.”
Moreover, “by intentionally limiting or preventing medical supplies and medicine from getting into Gaza … the two individuals are also responsible for inflicting great suffering by means of inhumane acts on persons in need of treatment,” the Chamber stated. “This amounts to the crime against humanity of other inhumane acts.”
The Chamber also found reasonable grounds to believe that the conduct of Netanyahu and Gallant “deprived a significant portion of the civilian population in Gaza of their fundamental rights, including the rights to life and health, and that the population was targeted based on political and/or national grounds.” It therefore concluded that they committed the crime against humanity of persecution.
Netanyahu Denounced the Arrest Warrants
Netanyahu’s denunciation of the arrest warrants was swift and strong. He called the ICC’s decision an “antisemitic move with one goal: to deter me, to deter us, from exercising our natural right to defend ourselves against our enemies who seek to destroy us.” He denounced the court as “biased” and said its accusations of “fictitious crimes” are “absurd” and “distorted,” adding, “This is a moral bankruptcy” that impairs the “natural right of democracies to defend themselves against murderous terrorism.”
Israel’s claim of self-defense is spurious. In its 2004 advisory opinion on the “Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,” the ICJ established the non-applicability of self-defense under Article 51 of the U.N. Charter in the situation between Israel and the Occupied Palestinian Territory.
Who are the three #ICC judges who issued landmark Netanyahu arrest warrant?
Despite immense pressure from the US and Israeli policymakers, these three ICC judges boldly took what many experts describe as the most groundbreaking step toward holding Israel accountable for its… pic.twitter.com/9iIpVHh2YX
— Sabria Chowdhury Balland (@sabriaballand) November 26, 2024
Indeed, the Fourth Geneva Convention requires Israel, as Occupying Power, to protect the occupied Palestinian people. And it is Israel’s genocidal actions, not the ICC’s arrest warrants, that are fomenting anti-Semitism. The widespread opposition to the genocide is not based in anti-Semitism, but rather revulsion at the atrocities Israel is committing against the Palestinian people.
The Chamber rejected Israel’s claim that the ICC has no jurisdiction over the Situation in Palestine. The fact that Israel is not a party to the Rome Statute is not a bar to the ICC’s jurisdiction, the Chamber concluded. The State of Palestine has been a state party to the Rome Statute since 2015. The court cited its February 2021 decision, in which Pre-Trial Chamber I held that the court could exercise criminal jurisdiction in the Situation in Palestine and that the territorial scope of this jurisdiction extended to Gaza and the West Bank, including East Jerusalem.
The Obligation of Parties to Rome Statute
Now, all 124 states parties to the Rome Statute have a legal obligation to arrest Netanyahu and Gallant and send them to the ICC if they are caught in the state’s territory. Several states parties — including Canada, Italy, the U.K., Belgium and the Netherlands — have expressed their intention to comply with this legal duty.
“The states that signed the Rome convention are obliged to implement the decision of the court. It’s not optional,” High Representative of the European Union for Foreign Affairs and Security Policy Josep Borrell said while in Cyprus for a meeting of Israeli and Palestinian peace activists.
But if any country sends Netanyahu and Gallant to The Hague, the U.S. may well send troops in to extract them.
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, dean of the People’s Academy of International Law and past president of the National Lawyers Guild. She sits on the national advisory boards of Veterans For Peace and Assange Defense, and is the U.S. representative to the continental advisory council of the Association of American Jurists. Her books include Drones and Targeted Killing: Legal, Moral and Geopolitical Issues.
This article if from Truthout.
The views expressed are solely those of the author and may or may not reflect those of Consortium News.
Can it really be a ‘death blow’ when the world’s great powers have ALWAYS refused to recognize it’s legitimacy to apply to them?
There is a reason why the ICC never went after the likes of Dubya Bush or Dick Cheney or Tony Blair for the Iraq war or Barack Obama for his OBomber campiagns or Donald Trump for continuing the program or or Xi Jinping for his Uighur concentration camps, etc. And their recent warrants against Putin and now Bibi are toothless and everyone knows it.
Sounds more to me like an unmasking of an impolite unspoken reality rather than some kind of death blow.
“the American law on the ICC is known as The Hague Invasion Act for a reason. Think about it.” Indeed; yet another mark against imperialist states. What indeed did Biden mean when he said “If Israel did not exist, we would have to invent it.” And it did with the help of Britain and other countries that enjoyed the spoils of their imperialist control of other countries and those countries’ resources they subjugated.
Thanks for explaining the ICC’s case against Netanyahu and Gallant. Is there some reason why you ignore completely the complicity of the Biden White House and leaders of the EU countries in enabling this crime? Just because the ICC is only focusing on Gallant and Netanyahu doesn’t mean all the other accessories to this injustice should be ignored. It couldn’t happen without them. They are ALL guilty and belong in prison for their crimes. Do you agree? If so, why are you hiding this fact?
Irish politician Clare Daly explains it well.
hxxps://www.youtube.com/watch?v=UFEFFuW75JI
Marjorie Cohn is not hiding anything. She has written numerous pieces on the topic, including this one. Marjorie Cohn is the last person to accuse of covering up US crimes.
hxxps://consortiumnews.com/2024/06/18/judges-unmoved-in-biden-genocide-complicity-case/
Thanks for clarifying. Good for her to help expose Biden and the rest of the genocide enablers. Let’s hope some actual justice will catch up with them.
They also have to be careful about starting war against Russia then losing. Those who survive will be wanted for war crimes trials by the Russians to appear in the International Court they will establish after the war and they’ll be hunted down for the rest of their lives. Russia should warn them to give them something to think about–they won’t have to ratify anything, their names are already on the list.
There has to be a constant willingness to work for changes towards human rights and freedoms internationally, a constant struggle for real justice. Do genocidal, psychotic maniacs that feel, in their paranoid state, that they have to defend themselves against anyone and everyone, including babies, have a right to exist? I’m not in favor of the death penalty, but they do need to be removed from the possibility from further harm to societies. Enemies of humanity don’t have an automatic right to continue to harm humanity. The 30 articles of the UN Universal Declaration of Human Rights are good sense born out of the atrocities of WWII, and there is a simple youth version available in film form. The things that make us ashamed of our government’s actions need to be changed and we can’t give up. Education is a good start. And we have to “unlearn” the lies and things the mainstream media has told us are truths in its efforts to sell us war. When ill minded individuals in a society engineer the covert mass killing of it’s own citizens (as Israel did to it’s own citizens on 7 Oct at the Nova Festival) in order to cause mass outrage and bloodlust for revenge in the public, those individuals need to be identified and isolated from potential towards further murderous acts.
So, is Israel the only mad-dog state on the loose or have we other exceptionals (in their own minds)? The land of Tom Cotton, for example. Funny how the US and Israel are like two peas in a pod.
I thought international law, and the principle of the “rule of law”, had been replaced with the “rules based order” diktats of the Washington Consensus? Prison and taxes are only for the “little people”.
After what prof. William K. Black called the largest financial crimes in US history, by orders of magnitude: The TBTF banksters were shown to be above the law and were even rewarded, no investigations, no indictments.
In the past, the ICC only went after the “little people” countries, while notorious abusers of the law like Tony Blair and Bush Jr. make millions. It seems the ICC is only trying to maintain a thin shred of credibility by indicting Netanyahu. They play along with a charade: the ICC knows damn well that the US will not allow any US or Israeli official to be arrested. It’s a cruel joke.
Their issuing a warrant for Vladimir Putin is also a demonstration of gross hypocrisy as well as abuse of law. The ICC seems only interested in serving the imperialists, and ignoring the crimes of the US/UK and vassals. How convenient.
Besides, the US is a declining power, filled with hubris, engaged in increasingly reckless and lawless behavior. Do as the US says, or they will blow up the world. Total Hegemony or Total Destruction.
Sadly, there is no rule of law, only The Law of the Jungle: brute violence dictates terms, not law.
Except that “The Law of the Jungle” in the real world isn’t about “brute force.” That’s the late 19th C. Social Darwinist interpretation justifying empire, exploitation of nature and labor, and the supposed natural superiority of the Robber Barons.
The actual behavior of nature is primarily cooperation. Trees have an obligate symbiosis with fungus via root connections, the mycorrhizosphere, where thousands of critters interact. This alone makes cooperation the dominant mode on Earth and there are many other symbioses. Including in and on humans. Nature’s version of Natural Law.
It’s also ironic that indigenous peoples, dismissed as”brutes” by the empire builders, often had ritual ways of warfare so deaths were minimized. In contrast to the so-called “civilized” western Europeans and their colonist descendants plus contemporary allies where the aim seems to be to kill as many of whomever the current Other is as possible.
Russia has already issued arrest warrants for the prosecutors and judges responsible for the illegal warrants against President Putin and others. I suggest that Kash Patel follow the same path. It is time to put these woke, commie, leftist thugs in black robes out of business for good. Russia has also promised substantial bounties to private persons who capture and bring them into Russian jurisdiction.
If the US was to actually invade The Hague to remove persons charged with crimes under international law, it would truly be a horrendous spectacle. However, the fact that the ‘Hague Invasion Act’ even exists, and that such actions are threatened, illustrates what international law has become- variations on the theme of victor’s justice. I am reminded of the scene from Young Frankenstein in which Victor shouts at Igor, “Damn your eyes!” The response of Igor, played by Marty Feldman? “Too late.”
Criminal idiots have been governing us for decades.
Completing the job the bloody Zionists have started??? Why bother with ANY LAWS at all when so many do as they please and giving civility – what is left of it, the middle finger?
Perry Anderson provides an erudite overview of the hypocritical, imperial reality of “international law” in his article ‘The Standard of Civilization’ from New Left Review #143 September-October 2023 (hxxps://newleftreview.org/issues/ii143/articles/perry-anderson-the-standard-of-civilization).
And since we live in an age of comprehension manqué, I must necessarily add that citing this article should not be taken as support for any side in the miasma of nationalist and religious bulls*it destroying lives in the Middle East – the power of ideology laid bare.
The impossibility of US troops in combat against their NATO ally, Netherlands, in the Hague is clear. US threats are worthless and to be dismissed. Arrest and prosecute the war criminal Netanyahu. Let the rule of law prevail.
“Sen. Tom Cotton (R-Arkansas) responded to the arrest warrants by invoking The Hague Invasion Act. “Woe to him and anyone who tries to enforce these outlaw warrants,” he warned. “Let me give them all a friendly reminder: the American law on the ICC is known as The Hague Invasion Act for a reason. Think about it.”
The important three words there are ” the American law” .
Exactly – an American law, passed by Americans, in America. Yet we are somehow expected to accept that it may be applied to anyone, anywhere ?