What kind of people threaten prosecutors?

Without naming names, a joint statement by 93 countries in a show of support for the International Criminal Court is an unmistakable rebuke of the lawlessness of the US and Israel.

Most criminals don’t dare threaten prosecutors. Only mafia dons do.

It’s the same with nations, most of which wouldn’t think of threatening the chief prosecutor of the International Criminal Court (ICC), its legal staff and their families.

Only the most powerful and those with its full backing would intimidate the ICC with impunity. Though experts prefer to call it “international relations”, sadly the hierarchical order of nations resembles gangsterism.

This week, 93 countries have reaffirmed their commitment to the ICC and declared a united stance against impunity. In a joint statement, they defend the need to uphold the principles and values ​​of the Rome Statute – on which the court was founded – and to protect its integrity from any interference and pressure.

It’s a bit late, its language is weak, and the obvious culprits weren’t named, but it’s better than nothing. The statement came after the US House of Representatives passed a bill that will require sanctions against the ICC if the court investigates or prosecutes individuals protected by Washington or its allies.

The US bill followed an application by the ICC’s chief prosecutor, Karim Khan, for arrest warrants against Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant. A concerted intimidation campaign was launched against Khan before he made the application.

That led to an extraordinary statement issued by the chief prosecutor’s office last month, calling for an end to what it said was intimidation of its staff and warning that such threats were offenses under the Rome Statute.

Article 70 contains provisions against “impeding, intimidating or corruptly influencing an official of the court for the purpose of forcing or persuading the official not to perform, or to perform improperly, his or her duties; (and) retaliating against an official of the court on account of duties performed by that or another official.”

But who’s going to enforce them, especially when such threats are openly made by two countries with the world’s most powerful militaries and which are also nuclear-armed? Hence, the most the rest of the world can do is to issue a statement of principles.

Israel has long been hostile to the ICC. The United States has a more ambiguous relationship.

Reports emerged last month that Israel has run a decade-long secret campaign of intimidation against the ICC by deploying its intelligence services to surveil, hack, threaten and smear senior court staff to derail efforts to launch probes against the Jewish state.

Both Khan and his predecessor, Fatou Bensouda, reportedly have had their phone calls, messages, emails and documents intercepted. The extensive surveillance reportedly led Netanyahu to have advance knowledge that Khan intended to seek a warrant for his arrest.

Bensouda and her family were previously sanctioned by the administration of Donald Trump after she tried to launch a probe into alleged war crimes committed by US forces in Afghanistan. When Khan took over the chief prosecutor’s office, he effectively declared that probe indefinitely on hold.

That led the subsequent administration of Joe Biden to drop the sanctions against Bensouda. Khan’s decision probably also led the Americans to believe he was a man they could trust to “do the right thing”.

They would probably have been right, too, if the conduct of Israel’s war in Gaza had not gone completely beyond the pale before the entire world. A little restraint on the slaughter of the Palestinians might have saved the US and Israel – and their legions of Western apologists – a world of trouble. But restraint is not part of the vocabulary of Netanyahu’s extremist cabinet.

Meanwhile, the US is pursuing a consistently inconsistent stance with the ICC. It supported the court when the latter went after its enemy states and their leaders, such as Vladimir Putin or tinpot dictators from Africa and the former Yugoslavia.

“Washington’s position towards the court shifted several times – it supported the court at certain times and criticized it at others,” international law specialist Andrea Furger wrote in The Conversation last month. “This has largely been tied to a broader assessment of US foreign policy goals and the anticipated costs and benefits that supporting the court could bring.”

In other words, it’s pure opportunism. Furger should know as she had worked for the ICC’s office of the prosecutor, the UN Office of the High Commissioner on Human Rights and the Swiss Federal Public Prosecutor’s Office.

Neither Israel nor the US acknowledges the ICC’s jurisdiction. The US voted against the Rome Statute that created the court in 1998. President Bill Clinton nonetheless signed it on the last day of 2000. However, his successor George W. Bush declared the US would not ratify the statute and does not have any legal obligations then it. In 2002, the US passed the American Service members’ Protection Act, which banned support for the ICC. Dubbed by legal wits as “The Hague Invasion Act”, the US law allows the president to use “all means necessary”, presumably including raiding The Hague, to free Americans detained or jailed by the court.

However, during his presidency, Barack Obama signaled a willingness to cooperate with the ICC even though the US is not a member state. The Donald Trump predominance, though, as we have said above, sanctioned the ICC’s chief prosecutor.

When Khan issued an arrest warrant for Putin, Biden and other top US officials voted approval. Meanwhile, the White House administration has given almost unconditional support to Israel to wage its scorched-earth war in Gaza and diplomatic cover against the ICC, the International Court of Justice under the United Nations and the UN General Assembly and Security Council.

Netanyahu has been invited to address a joint session of the US Congress on July 24. The US can hardly send a stronger signal to the world about its continuing steadfast support for a potential war criminal.

Republished from South China Morning Post, June 17, 2024