Israel Hopes for Same Treatment, After Int’l Court Backs Down on US Afghanistan Probe

By Patrick Goodenough | April 15, 2019 | 4:35am EDT
Israeli Prime Minister Binyamin Netanyahu addresses his cabinet on Sunday. (Photo GPO)

( – Israeli Prime Minister Binyamin Netanyahu on Sunday welcomed a decision by International Criminal Court (ICC) judges not to authorize an investigation into alleged U.S. war crimes in Afghanistan, and implicitly expressed the hope an ICC probe into Israeli actions would meet the same fate.

“To come and put on trial U.S. or Israeli soldiers, or the State of Israel or the U.S., is absurd,” Netanyahu told a weekly cabinet meeting. “This corrects an injustice and will have far-reaching implications for the functioning of the international system regarding the State of Israel.”

A three-judge panel in The Hague ruled Friday that although the alleged offenses met criteria set down by the Rome Statute – the court’s founding treaty – an investigation “at this stage would not serve the interests of justice.” Accordingly it turned down chief prosecutor Fatou Bensouda’s request to proceed.

President Trump hailed the development, which came a week after the State Department revoked Bensouda’s U.S. visa, in line with its recent decision to bar entry to anyone “directly responsible for any ICC investigation of U.S. personnel.”

The president called the decision “a major international victory, not only for these patriots [U.S. military and intelligence personnel involved in the conflict], but for the rule of law.”

Trump repeated an earlier warning that “[a]ny attempt to target American, Israeli, or allied personnel for prosecution will be met with a swift and vigorous response.”

National Security Advisor John Bolton, an arch critic of the ICC since its inception, called the decision a “good move,” adding in a tweet the U.S. would use any means necessary to protect its citizens and those of its allies “from unjust prosecution by this illegitimate court.”

Human rights advocacy groups voiced dismay, with Amnesty International accusing the ICC of “caving” to U.S. threats.

‘Limited’ prospects of success

The ICC prosecutor’s office was probing alleged war crimes and crimes against humanity by U.S. troops against detainees in Afghanistan, and by CIA personnel against detainees at covert facilities in eastern Europe. It also examined alleged abuses by the Afghan armed forces and the Taliban and Haqqani network terrorist groups.

The judges said in Friday’s 32-page decision that although they were satisfied the Rome Statute requirements of jurisdiction and admissibility had been met, “the current circumstances of the situation in Afghanistan are such as to make the prospects for a successful investigation and prosecution extremely limited.”

They cited the amount of time that has passed since the alleged incidents had occurred – more than a decade – and the political changes in Afghanistan since then; the limited cooperation the ICC has received from the “relevant authorities”; and the need for the court to direct its resources towards cases more likely to succeed.

The ICC's chief prosecutor, Fatou Bensouda of The Gambia. (Photo: ICC)

In a terse statement, Bensouda’s office said it would “further analyze the decision and its implications, and consider all available legal remedies.”

Neither the U.S. nor Israel is a party to the Rome Statute, and both questioned the right of an international tribunal to put citizens on trial.

“Since the creation of the ICC, the United States has consistently declined to join the court because of its broad, unaccountable prosecutorial powers; the threat it poses to American national sovereignty; and other deficiencies that render it illegitimate,” Trump said in his statement.

In Israel’s case, the ICC prosecutor is probing allegations of war crimes committed by Israeli troops in “the occupied Palestinian territory, including East Jerusalem,” since 2014.

That case was opened two weeks after the ICC in 2015 allowed the “State of Palestine” to become a party to the Rome Statute despite not being a sovereign state.

In his cabinet meeting, Netanyahu recalled the original vision behind the founding of the ICC.

“It was mainly established after the outrages of the pogroms, genocide and other problems that arose over the years, in order to deal with countries and regions that have no true legal system,” he said.

Instead, he said, it is harassing the U.S. and Israel, democracies with some of the best legal systems in the world.

Under the Rome Statute, the ICC may exercise jurisdiction only where national legal systems are unwilling or unable genuinely to prosecute.

In 2006, the Bush administration told a U.N. committee more than 600 criminal investigations had been conducted into alleged mistreatment by U.S. personnel in the campaign against terror, and that more than 250 individuals had been held accountable for detainee abuse, with punishments including prison terms of up to ten years.

Bensouda argued, however, that according to available information no “national investigations” had been conducted against alleged perpetrators.

Where prosecutions had taken place, she said, they focused solely on the direct perpetrators and their immediate superiors – not on “the criminal responsibility of those who developed, authorized or bore oversight responsibility” for the troops’ use of interrogation techniques that resulted in alleged abuses.

In an interview with CNN on Friday, Pompeo called Bensouda’s envisaged investigation “a very political effort to try and take on the people who were acting on behalf of the United States in ways that were completely consistent with our laws and try and hold them accountable in ways that were completely inappropriate.”

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