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Despite Biden's ICC rejection, US sometimes sides with court
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DESPITE BIDEN'S ICC REJECTION, US SOMETIMES SIDES WITH COURT

May 24, 2024 9:10 PM
 * By Patsy Widakuswara

--------------------------------------------------------------------------------


FILE - A view from outside the International Criminal Court in The Hague,
Netherlands, April 30, 2024. Various U.S. administrations have supported some
ICC investigations, but the U.S. never ratified the treaty that created it.
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white house — 

The Biden administration denounced an International Criminal Court announcement
this week that it is pursuing arrest warrants for Israeli and Hamas leaders over
alleged war crimes during Israel's military campaign in Gaza and the militant
group's October 7 attack on Israel.

"We made our position clear on the ICC," President Joe Biden said Thursday. "We
don't recognize their jurisdiction, the way it's been exercised, and it's that
simple. We don't think there's an equivalence between what Israel did and what
Hamas did."

International law experts say that the relationship between the U.S. and ICC has
never been simple.

The ICC was established in 1998 by the Rome Statute and tasked with prosecuting
individuals responsible for war crimes, crimes against humanity and genocide. It
was signed by the U.S. in December 2000, by U.S. lead negotiator David Scheffer.

The U.S., fearing that Americans would be vulnerable to prosecution abroad,
never ratified the treaty.

More than 120 countries have ratified it, making them member states.

The ICC has jurisdiction over atrocity crimes committed by citizens of member
states, or committed in member states, or in nonmember states that grant it
jurisdiction. It also has jurisdiction over crimes committed in nonmember states
that are referred to it by the U.N. Security Council.

The U.S. maintains that the ICC has no jurisdiction over citizens of non-ICC
states. Israel is not an ICC member; therefore, the Biden administration said,
the court has no right to issue arrest warrants for Israeli Prime Minister
Benjamin Netanyahu and Defense Minister Yoav Gallant.

Stephen Rademaker, former chief counsel of the House Committee on Foreign
Affairs and assistant secretary of state in the George W. Bush administration,
agrees.

"The fundamental principle undergirding all treaty-based international law is
the principle of consent," he told VOA.

Under the U.S. argument, which Scheffer calls the "immunity interpretation," the
same standards should apply to all non-ICC states.

However, various U.S. administrations have supported some ICC investigations.

The George W. Bush administration supported the ICC's 2002 investigations into
allegations of atrocities committed in the Darfur region of Sudan. The Obama
administration supported the ICC's case in Libya in 2011, which accused the
government of Moammar Gadhafi of war crimes and crimes against humanity.

Sudan and Libya were non-ICC states, but under the Rome Statute, the U.N.
Security Council had the authority to refer those cases to the ICC for
investigation, Rademaker said.


FILE - Ukrainian Prosecutor General Andriy Kostin testifies before U.S.
lawmakers April 19, 2023, in Washington. He described horrifying examples of
atrocities that he said were deliberately orchestrated by Russian forces to sow
fear among civilians.

The ICC began its investigations of Russian officials for alleged atrocities in
Ukraine in 2023, and of Israeli officials and Hamas leaders this month. Russia
and Israel are non-ICC states, and neither investigation was authorized by the
U.N. Security Council, Rademaker said.

"So the U.N. Charter cannot be cited as a basis of consent by them to action by
the ICC," he said.

However, while it rejected the ICC's case against Israeli officials, the Biden
administration supported the ICC's investigations of Russian suspects. Biden has
used the word "genocide" to describe Russian atrocities in Ukraine and has
described Russian President Vladimir Putin as a war criminal who should be put
on trial.

When asked to explain the distinction, White House national security spokesman
John Kirby said that Putin's war aim was "to kill innocent Ukrainian people."

"He's deliberately targeting civilian infrastructure with the aim of killing
innocent civilians, and it's just baked into his operational strategy," Kirby
told reporters Monday. "As we have said before, that is not what the IDF [Israel
Defense Forces] is doing."

Hypocrisy alleged

Critics say this difference in the Biden administration's posture amounts to
hypocrisy.

"There is an obvious inconsistency," said Adil Haque, a law professor at Rutgers
University who writes on international law and the ethics of armed combat.

"It is hard to get around," he told VOA. "And it's easier to see when you
contrast it with European countries which are allies of Israel but also parties
to the ICC statute," he said, referring to Germany, which said it would execute
the arrest warrant on German soil despite disagreeing with the decision.

While the contradiction is apparent under the Biden administration, selective
U.S. engagement with the ICC began decades ago.

In 2002, George W. Bush signed into law the American Servicemembers' Protection
Act, which authorizes the U.S. president to use "all means necessary and
appropriate to bring about the release of any U.S. or allied personnel being
detained or imprisoned by, on behalf of, or at the request of the International
Criminal Court."

The Obama administration rejected the ICC's preliminary examinations of the war
in Afghanistan, including into alleged atrocity crimes committed by the Taliban,
Islamic State group and U.S. coalition forces. It also opposed the court as it
began pursuing war crimes charges against Israeli officials.


FILE - Fatou Bensouda, then the International Criminal Court chief prosecutor,
speaks at the Ministry of Justice in the Sudanese capital of Khartoum, June 2,
2021.

While the Bush and Obama administrations would apply a case-by-case approach to
the ICC, under the Trump administration, U.S. "hostility hit its apex," said Kip
Hale, an attorney specializing in atrocity crimes accountability. He said ICC
investigations into Afghanistan and “Israel-Palestine” prompted the Trump
administration to level sanctions against then-ICC prosecutor Fatou Bensouda and
one of her senior staff and to threaten other ICC staff and their families with
visa bans and other punitive actions.

In the case of investigating Russian atrocities in Ukraine, the Biden
administration changed provisions under the American Servicemembers' Protection
Act and the Foreign Relations Authorization Act of 2001 to allow for information
sharing, funding and other types of support for the ICC, Hale told VOA.

"Unfortunately, the criteria is who are your allies and who are your rivals," he
said, adding that geopolitical expediency often dictates the behavior of all
states, not just the U.S.

ICC judges are now reviewing evidence presented by ICC prosecutor Karim Khan,
who made the decision to pursue arrest warrants with the advice of a panel of
international legal experts that included prominent human rights lawyer Amal
Clooney.

"We unanimously conclude that there are reasonable grounds to believe that Hamas
leaders Yahya Sinwar, Mohammed Deif and Ismail Haniyeh have committed war crimes
and crimes against humanity, including hostage-taking, murder and crimes of
sexual violence," Clooney said in a statement.

"We unanimously conclude that there are reasonable grounds to believe that
Israeli Prime Minister Benjamin Netanyahu and Israeli Defense Minister Yoav
Gallant have committed war crimes and crimes against humanity including
starvation as a method of warfare, murder, persecution and extermination."

Netanyahu called the ICC's move against him and his defense minister absurd and
said that he rejected "with disgust" the comparison between Israel and Hamas.

ICJ decision on Rafah

On Friday, the United Nations' top court, the International Court of Justice
(ICJ), ordered Israel to immediately halt its military offensive in the southern
Gaza city of Rafah, as part of proceedings against Israel brought by South
Africa in December.


Presiding Judge Nawaf Salam reads the ruling of the International Court of
Justice, or World Court, in The Hague, Netherlands, May 24, 2024.

Israel doesn't accept the ICJ's jurisdiction and is unlikely to comply with the
order. It maintains that its military campaign is a "defensive and just war" to
eliminate Hamas and to secure the release of hostages and that it is "consistent
with its moral values and in compliance with international law."

The ICJ was established by the U.N. Charter to settle disputes between states
and advise the U.N. on legal matters. It does not have jurisdiction to try
individuals.

While the ICJ's legal jurisdiction is separate from that of the ICC, Friday's
ICJ decision can impact the ICC's proceedings, said Oona Hathaway, professor of
international law at Yale Law School and member of the Advisory Committee on
International Law for the Legal Adviser at the U.S. Department of State.

"ICJ can't enforce its orders, that's true. But it doesn't mean that there
aren't going to be consequences," Hathaway told VOA. "If we see Israel refuse to
abide by the decision of the International Court of Justice, you could very well
see future charges in the International Criminal Court criminal charges," she
said.

This could include the ICC prosecutor expanding his request for arrest warrants
against Israeli leaders to include charges of genocide, she said.

Hathaway added that other consequences might include states withdrawing their
military, financial and diplomatic support for Israel's war effort, which could
further complicate the Biden administration's effort to continue backing its
ally.

Margaret Besheer and Natasha Mozgovaya contributed to this report.


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