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The election of Joe Biden (pictured) opens the door to a reset of US relations with Europe. But Europe also has obstacles it can and should remove. The recently postponed election of a new International Criminal Court (ICC) prosecutor provides one important such opportunity, writes Orde Kittrie.
The ICC was created as a court of last resort for prosecution of the most serious international crimes, in cases where countries were unable or unwilling to investigate themselves. However, the current ICC prosecutor, Fatou Bensouda, has chosen to pursue politicized investigations of the US and Israel, two non-members of the ICC, for alleged war crimes which they have both thoroughly examined.
The ICC is based in the Hague and funded predominantly by European governments. Many European officials slammed the Trump administration for imposing financial sanctions on Bensouda (and one of her aides) in response to Bensouda’s moves against the U.S. and Israel.
The Biden administration will differ from the Trump administration only over how, not whether, the US should oppose the ICC investigations of the U.S. and Israel. These ICC investigations have been rejected as illegitimate by former Obama Administration officials in charge of ICC and detainee issues and by over 330 Members of Congress from both parties, as well as by the Trump Administration. As a result, any fundamental reset of U.S. relations with the ICC will depend on how the next ICC prosecutor chooses to handle the two investigations.
Bensouda is reaching the end of her non-renewable nine-year term. Her replacement was to be elected by the 123 ICC member countries at their meeting this week. The election was, at the last minute, postponed for at least a month, reportedly because the ICC member countries could not reach the hoped-for consensus on a candidate.
As a non-member, the US doesn’t have a vote in the ICC election. However, in recent years, European countries – led by Germany, the UK, France, Italy, and Spain – have provided more than half of the ICC’s budget. Many of them have military personnel, stationed abroad, who could be negatively impacted by precedents set during an ICC prosecution of U.S. or Israeli troops. They should use this extra month to build support for a candidate who will clean up the ICC and restore it to its core mission.
Bensouda’s politicized investigations of the US and Israel have not been the only problematic aspects of her tenure as the ICC prosecutor since 2012 and as its deputy prosecutor from 2004 to 2012. Since the ICC began in 2002, it has spent some $2 billion to achieve a paltry eight convictions (just four of them for major crimes).
The recently-published final report of an Independent Expert Review of the ICC, commissioned by the ICC member states, criticized the ICC’s current pursuit of too many cases, including some with “limited feasibility” and insufficient “gravity” (apparent references to the investigations of the US and Israel). The Review concluded that “the current situation is unsustainable having regard to the limited resources available.”
The Independent Expert Review also notes that the ICC is plagued by bullying and sexual harassment. In a 2018 survey, half of ICC staff said they had been victims of discrimination, sexual harassment, or other abuse. “In the experts’ assessment,” said the Review, “there is a general reluctance, if not extreme fear, among many staff to report any alleged of misconduct or misbehaviour by . . . a senior official. The perception is that they are all immune.”
Bensouda’s replacement should refocus the ICC on its core judicial mission, reset its relations with the U.S., and remedy the ICC’s own serious management problems. In contrast, the election of at least one of the leading candidates would make a US-ICC reset impossible, boxing Biden in even before he takes office.
The worrisome top candidate is Fergal Gaynor, currently a leading external advocate of the ICC cases against the US and Israel. A Gaynor victory would inevitably accelerate the cases.
The stakes in this little-noticed ICC election are high for both US and Israeli security. The Military Coalition, representing more than 5.5 million current and former US service members, has warned that the ICC investigation of alleged U.S. war crimes relating to Afghanistan “could lead to the arrest, prosecution, and detention of American military personnel and veterans in foreign countries.” Meanwhile, the Israeli government has reportedly prepared a list of several hundred current and former Israeli officials, including Prime Minister Benjamin Netanyahu and alternate prime minister Benny Gantz, who could be subject to arrest abroad if the ICC moves forward against Israel.
Leading American officials and experts have opposed the investigations as illegitimate for several reasons. Bill Lietzau, a Deputy Assistant Secretary of Defense for Detainee Policy under Obama, has described how a dozen different US government investigations thoroughly reviewed the allegations, currently before the ICC, that military or CIA personnel tortured detainees. According to Lietzau, the US investigated “every allegation of abuse for which there is credible information” and “no country has ever self-investigated or self-reported its detention policies and practices more than the United States.”
In addition, former Ambassador Stephen Rapp, who served as Obama’s ICC point person from 2009 to 2015, asserted that the allegations against U.S. personnel in Afghanistan are not legally admissible in the ICC because “the U.S. had undertaken domestic accountability processes” and “the allegations against Americans did not reach the gravity threshold.” The ICC charter specifies that a case is “inadmissible” when “the case is not of sufficient gravity.”
In the separate ICC case involving Israel, Bensouda has claimed ICC jurisdiction over alleged Israeli war crimes because they occurred in the Palestinian Authority, which has purported to join the ICC as a state. However, Rapp and former Ambassador Todd Buchwald, Rapp’s successor as Obama’s ICC point person, made a detailed joint submission to the ICC in March 2020 in which they explained why the Prosecutor’s reasoning that Palestine qualified as a “state” under the treaty was “fundamentally flawed.” Several European and other governments, including Germany’s, made similar submissions asserting that the ICC “does not have jurisdiction” to proceed against Israel in this case.
In May 2020, 262 House members from both parties asserted that the ICC does not have “legitimate jurisdiction” in the two cases and urged that the ICC “cease its politically motivated investigations into the United States and Israel.” That same month, 69 Senators from both parties asserted that the ICC does not have “legitimate jurisdiction” in the Israel case and opposed that case’s “dangerous politicization of the Court.
The ICC recently closed its examination of alleged war crimes by UK personnel, on the grounds that the UK carried out its own “genuine” investigations of the allegations. A similar halt to the ICC investigations of the U.S. and Israel is necessitated by their own robust investigations, and consistent with the Independent Expert Review’s assessment that the ICC’s current pursuit of too many cases with “limited feasibility” and insufficient “gravity” is “unsustainable”.
Such a halt is essential if the ICC is to once again benefit from the invaluable cooperation which it received from the US during the Obama administration. This cooperation, pivotal for several of the ICC’s rare successes, included a US vote at the Security Council to refer the situation in Libya to the ICC, transferring a Congolese ICC indictee from U.S. to ICC custody, and the US offering rewards for information leading to the arrest of other ICC indictees. In light of the bipartisan American view that the ICC investigations of the US and Israel are illegitimate, it is hard to imagine the Biden administration resuming such cooperation so long as the investigations continue.
The ICC has strayed far from its worthy founding objectives. The close US allies who are its leading funders should seize the opportunity, provided by the upcoming ICC election, to clean up the ICC and restore it to its core mission.
Orde Kittrie is a senior fellow at the Foundation for Defense of Democracies, a nonpartisan research institute focusing on national security and foreign policy. He is also a law professor at Arizona State University, and previously served as a US State Department attorney. Follow him on twitter @OrdeFK
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