Message from the White House:

“We believe in investigating war crimes – 

but not ours and not Israel’s”

The US State Department website says the following about the International Criminal Court (ICC):

“We maintain our longstanding objection to the Court’s efforts to assert jurisdiction over personnel of non-States Parties such as the United States and Israel.”

In other words, it is US policy that the ICC should not investigate and seek to prosecute American or Israeli citizens, or the citizens of any other state that is not a State Party to the ICC, for example, citizens of the Russian Federation.

In 2020, the ICC opened an investigation into actions by members of the US military and CIA personnel in Afghanistan.  As we will see, the US applied fierce pressure on the ICC to terminate this investigation, including by sanctioning the ICC Prosecutor.  And it has backed Israel’s opposition to the ICC investigating Israeli actions in the occupied Palestinian territories.  By contrast, the US is actively assisting the ICC investigations into Russian actions in Ukraine and President Biden welcomed the subsequent indictment of Vladimir Putin for war crimes.

When asked for his reaction to the ICC decision, Biden said: “I think it’s justified”.  He did not say: “We have a longstanding objection to the ICC indicting personnel of non-State Parties such as Russia”.

What he should have said was: “We believe in investigating war crimes – but not ours and not Israel’s.”

US obstructs ICC in Afghanistan

In November 2017, Fatou Bensouda, the ICC Prosecutor at that time, sought permission from the Pre-Trial Chamber of the Court to open an investigation into actions by members of the US military and the CIA in Afghanistan and in the secret CIA “black sites” in Poland, Romania and Lithuania.

In the 181-page document justifying her request, she wrote:

“… the information available provides a reasonable basis to believe that members of United States of America (“US”) armed forces and members of the Central Intelligence Agency (“CIA”) committed acts of torture, cruel treatment, outrages upon personal dignity, rape and sexual violence against conflict-related detainees in Afghanistan and other locations, principally in the 2003-2004 period.” (see here, paragraph 4)

The US is not a State Party to the ICC and therefore the ICC cannot prosecute individuals for crimes committed within the US.  But Afghanistan is a State Party and therefore the ICC can prosecute any individual, including Americans, on its territory.  And the same is true for Poland, Romania and Lithuania, which are also State Parties.

The US objected strenuously to the investigation opened by Bensouda.  In April 2019, the Trump administration revoked her US visa.  In June 2020, President Trump issued an Executive Order, which determined that “any attempt by the ICC to investigate, arrest, detain, or prosecute any United States personnel without the consent of the United States … constitutes an unusual and extraordinary threat to the national security and foreign policy of the United States” and “declared a national emergency to deal with that threat”.  Under this Order, Bensouda and another court official active in the investigation had their US assets frozen.

This extraordinary pressure on court officials lasted until April 2021, when President Biden revoked the Executive Order.  However, in announcing the decision, Secretary of State Antony Blinken was at pains to emphasise that the US continued to “disagree strongly with the ICC’s actions” in relation to Afghanistan.  It continued to be US policy that the ICC should not investigate and seek to prosecute American or Israeli citizens, or the citizens of any other state that is not a State Party to the ICC.

US assists ICC in Ukraine

These US efforts to abort the ICC investigation of American activities in Afghanistan are in marked contrast with copious assistance being given to the ICC in its investigation of the activities of Russians in Ukraine. 

(Ukraine is not a State Party to the ICC.  But, as long ago as 25 February 2014, Ukraine granted the ICC jurisdiction to investigate the events in Ukraine from 21 November 2013 to 22 February 2014 and later extended the time period indefinitely.  Ukraine was required to become a State Party to the ICC under the Association Agreement it signed with the EU in May 2014, but it hasn’t done so.)

The US Attorney General Merrick Garland visited Ukraine on 22 June 2022 and declared that “there is no hiding place for war criminals” (“except in the US military and the CIA”, he might have added).  He announced various additional US actions “to help Ukraine identify, apprehend, and prosecute those individuals involved in war crimes and other atrocities in Ukraine”, including the launch of a War Crimes Accountability Team and the appointment of Counsellor for War Crimes Accountability in the Department of Justice.

No stone is to be left unturned to assist the ICC in the investigation of Russians, while every effort is made to obstruct the ICC in the investigation of Americans.

Israeli war crimes go unchecked in Palestine

In December 2019, after almost five years of preliminary investigation, ICC Prosecutor Fatou Bensouda concluded that there was a reasonable basis to believe that war crimes had been committed in the occupied Palestinian territories.  In particular, she concluded that there was a reasonable basis to believe that “members of the Israeli authorities have committed war crimes” by transferring Israeli civilians into the West Bank (see here, paragraph 95). 

This has been obvious long before the ICC investigation, since Article 8(2)(b)(viii) of the Rome Statute of the ICC defines 

“the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies”

to be a war crime.  But, almost a decade after the ICC started its investigation, no Israeli individual has been indicted and these war crimes continue unabated – as they have done for over 50 years.

David Morrison

27 March 2023