Upon questioning, State Dept. doesn’t argue ICC has no jurisdiction over Israel as it has been doing. Change may reflect goals regarding Russia, which is also not party to the Rome Statute of the ICC.

The State Department had been claiming that it was opposed to applying the International Criminal Court to Israel because Israel is not a party to the Rome Statute, the treaty that established the International Criminal Court.

But, in a seemingly stark departure from past statements, when recently asked about a statement by the South African International Affairs Minister advocating the ICC arrest Israeli officials, the State Department spokesperson did not give that reason.

When this reporter suggested that that was because the US government is pursuing ICC prosecution of Russians even though Russia, like Israel (and the US), is not a party to the Rome Statute, the spokesperson claimed that was not what State was doing.

[It may well be that that the US government is trying to find ways to prosecute Putin, or at least credibly threaten him with prosecution, and effectively use the ICC to that effect, at times without explicitly backing the ICC as well as trying to avoid creating any precedent which would impact Israel, the US or other NATO members from conducting criminal activity.]

On May 16, I questioned State Department spokesperson Vedant Patel:

HUSSEINI: South African foreign minister – Minister of International Affairs [Naledi] Pandor has called for the International Criminal Court to issue arrest warrants against leaders of, quote, “apartheid Israel,” responsible for, quote, “the massacre of the Palestinian people.” [Video] Will the State Department finally support International Criminal Court mechanisms and international law regarding Israel? If not, why not?

PATEL: We, of course, remain engaged with the ICC, through a number of mechanisms. We believe that there are a number of avenues for holding those accountable for atrocities, especially in the context of Russia and Ukraine. But I don’t have – I’ve not seen these comments, so I don’t have anything additional to offer on that. 

HUSSEINI: But the State Department continues to not want the ICC to be implemented regarding Israel?

PATEL: On the matter of Israel and the Palestinian Authority, you saw me speak quite clearly to Said’s question about our desire that both sides not take steps that are going to incite tensions and take us further away from a negotiated two-state solution. We’ve been quite clear about that consistently. [Motioning to another reporter] Go ahead. You had your —

HUSSEINI: I’m sorry, but you have refused to apply the ICC over the years to Israel. And I don’t know —

PATEL: I just don’t have anything additional to offer on this. 

HUSSEINI: — what the reason for that is. You’ve stated reasons before but you’re unwilling to state them now. 

MR PATEL: Your colleague has had her hand up. 

HUSSEINI: I’ve had my hand up. 

MR PATEL: I understand, and I called on you. 

HUSSEINI: It’s quite clear. In the past, you have said that the reason that you have not wanted to implement the ICC is because Israel was not a signatory to the – is not subject to the Rome Statute. But that’s the case for Russia now as well, and you are pro applying the ICC to Russia, which is not – which has the same status fundamentally – not a member. 

PATEL: We have never said that either. What I’ve simply said is that we have worked and worked with the ICC and other international entities as it relates to atrocities happening in Russia. I have not said that we are pro anything. [Motioning to another reporter] Go ahead. 

HUSSEINI: No, no, but you have said in the past that you will not apply the ICC —

PATEL: I’m going to move on now. [Motioning to another reporter] Go ahead. [Full briefing.]

—

Patel claims regarding the targeting of Russia, “we have never said that” and that State is not “pro anything,” would seem to contradict Ambassador-at-Large for Global Criminal Justice Beth Van Schaack’s recent statement dated March 27 that the “United States supports the investigation by the ICC Prosecutor.” Her remarks outline a series of ways the State Department is backing the ICC’s targeting of Russia and potentially other adversaries, while attempting to immunize the US government from the court’s jurisdiction. This gives hypocrisy a bad name. (Though, interestingly, she does not say the sentence I just quoted when she actually delivered that speech on March 27 at Catholic University in Washington, D.C.)

Patel repeatedly avoided engaging on the substance of the ICC applying to Israel. Had he given the prior pretext for not applying the ICC to Israel, it would have undermined their targeting of Russia. This indicates a high degree of consciousness regarding their claimed positions.

The discrepancy regarding Israel is especially notable since Ukraine is not a party to the Rome Statute either — but Palestine is. Though, it should be noted, Ukraine did accept the Court’s jurisdiction on at least some basis in early 2022.

In March, the ICC issued an arrest warrant for Putin claiming he was “allegedly responsible for the war crime of unlawful deportation of population (children) and that of unlawful transfer of population (children) from occupied areas of Ukraine to the Russian Federation.”

The focus on alleged deportation of children — rather than the war crimes one might expect — would seem to be an attempt to charge Putin with a crime that the US government is not itself guilty of, or perhaps simply for melodramatic effect.

Moreover, a pair of reports from The Grayzone: “ICC’s Putin arrest warrant based on State Dept-funded report that debunked itself” and “How NATO states sponsored ICC prosecutor’s Putin arrest warrant” throw the veracity of the ICC charges against Putin into serious question and highlight the extent to which the State Department is targeting Putin. See video.

In March, Sen. Lindsay Graham asked Blinken if he “would encourage our European allies to turn him over,” to which Blinken responded, “I think that anybody who is a party to the court, and has obligations, should fulfill their obligations.”

Legal scholar Francis Boyle commented: “Blinken’s comment is excellent authority for pursuing US war criminals around the world.”

While the new ICC head Karim Khan, a British barrister, has stated he intends to visit Palestine this year, many are wary that the Brit will seriously scrutinize Israel. See “How will ICC respond to Netanyahu’s threats?” from the Electronic Intifada. Alice Speri of The Intercept recently reported: “people at the court told me recently that the investigation is minimally staffed and has largely stalled.”

Professor John Quigley of Ohio State University states that Putin, while in office, has immunity as a sitting head of state. Quigley also has addressed the US government claim that the ICC does not apply to Palestine because the US government claims it’s not a state. Also see piece by Quigley regarding the possibility of applying the ICC to the Palestinian right of return.

European Parliament member Mick Wallace recently stated: “In 2019 the then #ICC Boss Bensouda announced an investigation into #Israeli War Crimes – #US threatened her. When she threatened to investigate US + Taliban for Crimes in #Afghanistan the US placed her under Sanctions – So no #NATO country has ever been tried for War Crimes…??… The new #ICC Prosecutor Karim Khan has stalled the ICC case against #Israel, and dropped the case against the #US in #Afghanistan – He’s going after Russia instead. What does that tell us about the ICC today..? One more vital International Institution has lost its Independence…”

Indeed, U.S. government has obviously succeeded in instrumentalizing other international bodies, from the OPCW to UNSCOM to the United Nations itself.

And the ICC has already displayed a remarkable bias, even Foreign Affairs noted in 2021 that “To date, all 44 people indicted by the court have been Africans.” See piece by Boyle: “International Criminal Court: The White Man’s Court.”

Also, see 2014 interview with the late Edward Herman, professor emeritus at the University of Pennsylvania, by David Swanson. Herman argues that Desmond Tutu is wrong to support the International Criminal Court, given its bias for prosecuting only Africans and only those Africans not working with the United States.

Trump targeting Bensouda, who is from Gambia, in 2019 was an illustration of how he could at times serve the US establishment in a manner no conventional US president could. But such targeting of the ICC is not on the current agenda since the new head Khan is even more aligned with the State Department agenda.

Indeed, as Speri of The Intercept reported in 2021, “Biden lifted the sanctions on the ICC officials … with the tacit understanding that the court’s probe on U.S. crimes wouldn’t resume.” Khan, Speri would report, “did not initially make it through the formal vetting process.” His becoming the head of the ICC was the first time that the ICC failed to choose a head by consensus. He was elected by secret ballot with Fergal Gaynor of Ireland, who was widely thought to be more independent, coming in second.

As noted, in the past, the Biden State Department has been adamant in dismissing applying the ICC to Israel.

Blinken in a statement on March 3, 2021, the day Bensouda announced an investigation into Israeli crimes, said the US “firmly opposes” the ICC investigating Israeli conduct, claiming: “The ICC has no jurisdiction over this matter. Israel is not a party to the ICC and has not consented to the Court’s jurisdiction.” See video of spokesperson Ned Price the same day saying the same thing. Price also made a blanket statement: “The United States has always taken the position that the court’s jurisdiction should be reserved for countries that consent to it or that are referred by the UN Security Council.” But no more.

When questioned by Rep. Ilhan Omar on June 7, 2021 regarding Israel, Blinken commented: “You know our views on the ICC and its jurisdiction. We continue to believe that absent a Security Council referral or absent the request by the state itself, that that’s not appropriate.” [Video]

Quigley notes that in 2005 Ambassador Anne W. Patterson, Acting US Representative to the United Nations, on the Sudan Accountability Resolution said: “While the United States believes that the better mechanism would have been a hybrid tribunal in Africa, it is important that the international community speaks with one voice in order to help promote effective accountability. The United States continues to fundamentally object to the view that the ICC should be able to exercise jurisdiction over the nationals, including government officials, of states not party to the Rome Statute.”

Quigley notes: “The US abstained — which didn’t make sense if its position was that the Security Council should not refer for acts in a state that was not a party – since abstention let the referral go through. US representative said US decided not to veto ‘because of the need for the international community to work together in order to end the climate of impunity in Sudan.’

“But then in 2011, when the issue was to refer for acts in Libya, US voted in the affirmative (even though Libya was not a party).”

Indeed, the Libya situation is quite similar to Russia now — suddenly the US is for using the ICC in a country that is not a party to the relevant Statute.

The Washington Times noted in 2011: “The Obama administration is backing the International Criminal Court’s arrest warrants for Libyan leader Moammar Gadhafi. It is a dangerous precedent for the United States to rush to affirm the jurisdiction of this relatively new international body, particularly with a president whose counterterrorism strategy has made his name synonymous with ‘targeted killing.’ On Monday, ICC judges granted warrants for Col. Gadhafi, his son Seif al-Islam and regime intelligence chief Abdullah Sanussi. …

“In 2010, American law professor Francis A. Boyle of the University of Illinois College of Law in Champaign, filed a complaint with the ICC prosecutor against Mr. Bush, Dick Cheney, Donald H. Rumsfeld, George Tenet, Condoleezza Rice and Alberto Gonzales for ‘their criminal policy and practice of ‘extraordinary rendition’ perpetrated upon about 100 human beings.’ The dirty little secret is that renditions have continued — and some sources say increased — under the Obama administration. This, combined with the questionable legality of drone strikes under international law, could come back to haunt the White House if the ICC continues to expand its authority.”

A highly relevant precedent for US policy makers is to use the mechanisms of the ICC to some extent and, perhaps if the ICC is not sufficiently malleable, then to set up an ad hoc court like the International Criminal Tribunal for the Former Yugoslavia.

David N. Gibbs in “How the Srebrenica Massacre Redefined US Foreign Policy” noted: “the United States and its NATO allies played key roles in supporting the ICTY tribunal in The Hague. In 1999, a NATO spokesman stated that ‘Without NATO countries, there would be no… International Criminal Tribunal for the Former Yugoslavia.’ The spokesman added that NATO states funded the tribunal and supported ‘on a daily basis their activities.’”

Notably, current ICC head Khan was an officer with the ICTY.

Then there’s the fate of UNSCOM, which was charged with ensuring Iraq had no weapons of mass destruction. It was headed by Richard Butler who was all too willing to do the US government’s biding — and who ultimately destroyed the organization, leading to the invasion of Iraq. As The Intercept recently noted: “Karim Khan vowed to turn around his office’s losing record. But if his case against Putin backfires, it could hurt the court’s already-battered reputation.”

Speri wrote continued: “Seeking an arrest warrant for Putin himself was a risky, spectacular move — in line with the combative, scorched-earth style that has defined Khan’s career.”

The US government agenda for the ICC, as for other entities and people, may be: Be instrumentalized or die.

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