Israel Thanks US for Targeting Int’l Criminal Court Probe: ‘This Court Has Lost its Way’

By Patrick Goodenough | March 21, 2019 | 5:02am EDT
Israeli Prime Minister Binyamin Netanyahu speaks alongside Secretary of State Mike Pompeo in Jerusalem on Wednesday, March 20, 2019. (Screen capture: YouTube)

( – Israeli Prime Minister Binyamin Netanyahu thanked the Trump administration Wednesday for its decision to bar admission to anyone involved in an International Criminal Court probe into alleged U.S. abuses in Afghanistan.

Israel and others share U.S. concerns that “this court has lost its way,” he said.

“Instead of dealing with mass atrocities, the court engages in unwarranted and politicized efforts to target the states that are committed to the rule of law and that have not joined the court,” Netanyahu said during a joint appearance in Jerusalem with Secretary of State Mike Pompeo.

“It’s exact opposite of what it should be doing.”

Netanyahu said the fact Pompeo had spoken out against that was “of stellar importance.”

“I thank the United States for taking the moral and necessary steps to protect the citizens of both our countries against this outrageous distortion of international law.”

Neither the U.S. nor Israel ratified the ICC’s founding Rome Statute, which was adopted in 1998 and came into effect in 2002.

Washington’s key concern was that troops stationed abroad could find themselves hauled before the tribunal. President Clinton signed the treaty, but chose not to seek Senate advice and consent. The George W. Bush administration then signed more than 100 agreements with nations undertaking not to surrender U.S. citizens to the ICC without U.S. consent.

Israel, although an early proponent of the initiative, walked away over the decision to classify Jewish settlement on disputed territory (“the transfer of an occupying power’s population into a territory it occupies”) as a war crime punishable by the court.

Of ten situations currently undergoing “preliminary examination” by the ICC prosecutor’s office, those focusing on Afghanistan and the disputed territories are among the most politically sensitive:

--Allegations of war crimes and crimes against humanity by U.S. troops and CIA personnel in Afghanistan and at secret facilities in eastern Europe since 2002-3

--Allegations of war crimes committed by Israeli personnel in “the occupied Palestinian territory, including East Jerusalem,” since a mid-2014 date that marked the run-up to the Israel-Hamas conflict that year.

The International Criminal Court in The Hague, The Netherlands. (Photo by Michel Porro/Getty Images)

On Friday, Pompeo announced that the U.S. will bar entry to and withhold visas from anyone “directly responsible for any ICC investigation of U.S. personnel,” and that those restrictions may also be applied “to deter ICC efforts to pursue” personnel of allies, including Israelis, without their consent.

“We are determined to protect the American and allied military and civilian personnel from living in fear of unjust prosecution for actions taken to defend our great nation,” he said.

The action followed a warning by National Security Advisor John Bolton last fall, that the U.S. not only would not cooperate with the court, but would take punitive measures if it pursues U.S. citizens.

The U.S. would “not sit quietly” if the ICC continues action against Israel or other allies, Bolton said at the time. (Another ICC preliminary probe deals with allegations of war crimes by British personnel during the Iraq War.)

Cooperation prohibited under US law

While the U.S. and Israel are not party to the Rome Statute, Afghanistan is, and in 2015 the “State of Palestine” was allowed to join despite not being a sovereign entity. Two weeks later the court’s chief prosecutor in The Hague launched a “preliminary examination into the situation in Palestine.”

The ICC’s Afghanistan probe relates to allegations of “torture, outrages upon personal dignity and rape and other forms of sexual violence” by U.S. military personnel in Afghanistan, and by CIA personnel in Afghanistan and at covert facilities in Poland, Romania and Lithuania.

The investigation is also looking into alleged abuses by the Taliban and Haqqani network terrorist groups, and by the Afghan armed forces.

Apart from the fact that the U.S. is not a party to the ICC treaty, U.S. law also forbids cooperation with the tribunal.

The American Service Members’ Protection Act, signed by Bush in 2002, prohibits the use of federal funds “for the purpose of assisting the investigation, arrest, detention, extradition, or prosecution of any United States citizen or permanent resident alien by the International Criminal Court.”

Under the Rome Statute’s “principle of complementarity,” the ICC may exercise jurisdiction only where national legal systems fail to do so, or when they are unwilling or unable genuinely to prosecute.

In 2006, the Bush administration reported to a U.N. body in Geneva that it had carried out more than 600 criminal investigations into alleged mistreatment by personnel in the campaign against terrorism. It said more than 250 individuals had been held accountable for detainee abuse, with punishments including prison terms of up to ten years.

Reacting to Pompeo’s announcement, the president of the ICC Assembly of the 122 countries now party to the treaty, P-Gon Kwon of South Korea, said the ICC is “non-political.”

The assembly was committed to preserve the ICC’s integrity, “undeterred by any threats against the court, its officials and those cooperating with it,” he said.

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